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Madras High Court suggests The National Board of Examination to consider the petitioner in NEET PG 2023 Counselling after obtaining Supreme Court’s Approval.

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Title: Dr. Pratheeksha Vs. The National Board of Examination.

Decided On: September 11, 2023.

W.P.No. 26731 of 2023.

Coram: Hon’ble Mr. Justice N. Seshasayee.  

Facts:

The petitioner herein had applied for NEET examination for Medicine PG course for the academic year 2023-2024, wherein she had indicated her category as OBC. The cut-off mark prescribed for OBC category is 257, whereas the petitioner has scored 269 marks. However, while registering for counselling, the petitioner has given her category as General, for which the cut-off mark is 291. Now the petitioner seeks an issuance of writ of mandamus, directing the first respondent to permit the petitioner to participate in the NEET PG 2023 Counselling under the OBC category, as per the order passed in a similar matter in W.P.No.13387 of 2023 dated 28.06.2023, after all rounds of counselling.

Legal Analysis and Decision:

Indisputably the petitioner is at fault. It is her lapse. And none of the respondents before the Court have breached the rule of law in the context, of the procedure prescribed for medical admission. The Court acknowledges its sympathy for the petitioner, but sympathy cannot replace the Constitutional consciousness which the Court is expected to possess and exhibit. It needs to be underscored that even the Courts are bound by the Rule of Law. Therefore, unless this Court considers that it has powers to roam free beyond the bounds of the rule of law, it cannot create a non-existing space for issuing any directions. If this is ignored, then we will have a dual system, one by the rule of law for some, and another, the rule of the Court, for a few. That would be an allergen that ill-suits the health of Constitutional governance. When a procedure is designed, granting equal opportunities to the equally placed, adjusted with necessary reservations, the Court cannot disturb the prospects of anyone who has played the game as per the rule, lest there will be a premium for those who ignore the rules of the game. And it will create a class in itself a class of preferred candidates because the Court has given them a wild card entry.

The Court held that this court therefore, can only suggest to the respondents that, subject to the approval of the Hon’ble Supreme Court, a window may be opened for all those candidates, who might have missed an opportunity due to certain inadvertent faults such as the one occasioned to the petitioner, grant them an opportunity to correct them after the conclusion of the stray-counselling, and to prepare a rank list for these candidates, and to try accommodating whoever who is willing to join the unfilled up seats. Instead of letting some medical seats lapse, an attempt may be made to fill them up.

Conclusion:

The Court concluded that playing within the bounds of law and summoning its sense of equity and justice, the Court merely makes a suggestion to the respondents to consider the case of the petitioner after all the rounds of counselling, if some seats still remain vacant, but only after obtaining necessary approval for the same from the Hon’ble Supreme Court.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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Delhi High Court granted bail to the petitioner who was imprisoned for more than seventy days.

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Title: Prabhakar Reddy vs State of Delhi (Govt. of NCT)

Date of decision: 13th July, 2023

+ BAIL APPLN. 2025/2023

CORAM: HON’BLE MR. JUSTICE AMIT BANSAL

Introduction

The complaint of Mr. Vivek Rana, an authorised representative of DMI Finance Private Limited (hence “complainant company”), which asserted that M/s P dot G Constructions Private Limited violated the law, led to the registration of the current FIR.

Through its directors, who included the petitioner and his wife, [hereinafter “borrower company”], obtained a loan from the complainant business for Rs. 35,000,000/- according to a first-term loan agreement dated August 18, 2015. On January 27, 2017, the parties additionally agreed to a Second Term Loan Agreement, under the provisions of which an additional sum of Rs. 17,00,000 was approved.

The parties signed a Memorandum of Settlement on January 3, 2017, which was exchanged. According to the terms of the agreement, the borrower firm allocated the complaint company the receivables from a number of identified sold units as well as rights to a number of identified unsold flats.

The lawsuit claims that the accused individuals shifted title and control of several residences that were allocated to the complainant without the complainant’s knowledge. Additionally, it is claimed that the loan money was misappropriated and utilised for other projects, resulting in the complainant’s unlawful loss of Rs. 52,000,000.

The borrower company’s forensic audit report, which was acquired from Brahmayya & Co. Chartered Accountants, showed that bank and cash receipts recorded in the internal Cash Relationship Management data of the borrower company were not accounted for in the books of accounts. The inquiry also showed that the defendants personally took the money from the different house buyers and used it for their own or other initiatives. The inquiry revealed that the accused individuals misappropriated the receivables and failed to deposit them in the Escrow Account in violation of the terms and conditions of the assignment agreement with the lenders.

By rulings dated May 26, 2023, and June 2, 2023, respectively, the learned Chief Metropolitan Magistrate and the learned Additional Sessions Judge both rejected the petitioner’s bail requests.

Analysis of the court

The petitioner’s primary domicile is in Chennai, and he solely does business there. The investigating authorities have already taken the petitioner’s passport. The petitioner is therefore unlikely to elude justice. Additionally, the petitioner is no longer a director of the borrower firm, making it less likely that she would tamper with the evidence or sway any witnesses.

When the investigation against the petitioner is already finished and a chargesheet has been filed, granting bail based only on the fact that the petitioner’s wife is the subject of the inquiry is inadmissible. At this point, the Supreme Court’s ruling in Sanjay Chandra v. CBI, (2012) 1 SCC 40 (Refer para 21-22 & 42), may be cited.

It would not be wise to imprison the petitioner indefinitely in light of the extract above, the likelihood that the trial in the matter will take some time, and the assurance given on behalf of the petitioner that he will continue to cooperate in the investigation qua his wife as well. The petitioner has already been detained for seventy days.

Due to the aforementioned factors, this Court determines that the petitioner should be granted bail in the current instance. The petitioner is therefore ordered to be freed in exchange for a personal bond in the amount of Rs. 1,00,000 and one surety in an amount equal to that, subject to the satisfaction of the Trial Court and additionally subject to conditions.

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DIGITAL EVIDENCE & It’s Complexities

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Digital evidence means Information that has been stored or transmitted in binary format and is admissible in court is known as digital evidence. It can be located, among other places, on the hard drive of a computer and a cell phone. Electronic crime, sometimes known as e-crime, such as child pornography or credit card fraud is frequently linked to digital proof. It has been mentioned under section 65B of the Indian Evidence act as “any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

So, basically there are seven types of digital evidences, they are: –

  1. Logs, a computer-generated data file that includes details about how an operating system, application, server, or other device is used, what it does, and how it operates. It basically keeps the tracks of user on the computer and the virtual world. It includes database logs, phone logs, OS logs, IP logs, Server Logs etc.
  2. Video Footage and Images, they are visual images captured via cameras Similar to the logs we previously mentioned, video and photographs fall under the category of visual data. This category includes a wide variety of digital evidence, such as voice recordings, mobile device recordings, CCTV footage, and recordings made with digital cameras.
  3. Archives are ordinary files that can be accessed directly from the file explorer and are part of the category of visible data types, which also includes a wide variety of extractable file formats. Archives are a kind of all-purpose source of evidence because they can contain anything from photos to text files to other types of files.
  4. Active data is described as ESI placed on a computer system’s storage medium that can be directly accessed, is easily observable by the operating system and/or application software used to create it, and is immediately accessible to users without needing to be undeleted, altered, or restored.
  5. Metadata is the unnoticed data that comes with every image, movie, and file you see. It aids in the organisation and management of data sets, but it can also offer privacy and security problems if left uncontrolled.
  6. Residual data is erased or rewritten data that, if successfully recovered, may include digital proof. It is characterised as an invisible data type since it is often not visible in a file browser.
  7. Volatile data is data that is not written to the disc and hence falls under the category of invisible data. Some viruses, for example, do not leave traces on the hard disc in order to prevent detection by antivirus software.

Now, the question pertains to the collection of digital evidence as they could collected trough various means including phones, Computers, CDs, Pen-drives, web pages, History etc. It involves preserving and documenting electronic data that may be relevant to a legal investigation or case

Steps involved in collection of Digital evidences are-

  • Identifying the scope: In order to know what kind of digital evidence you need to gather, you must first determine the precise scope of the inquiry or case. This could contain, among other things, emails, computer files, posts on social media, or network logs.
  • Document your Process: Keep thorough records of the entire gathering process. To prove the reliability and admissibility of the digital evidence in court, this documentation will be essential.
  • Secure the scene: Make sure the evidence is secured and shielded from unauthorised access if it relates to a computer or other digital device. To stop remote manipulation, turn off the device or unplug it from any networks.
  • Engage Professionals: It could be required to involve forensic professionals with expertise in digital forensics in complex instances. They can help with gathering and analysing digital evidence while abiding by the rules and regulations of the law.
  • Use Forensic Tools: Software programmes called “digital forensic tools” are made to gather and examine digital evidence. These tools frequently include built-in procedures to maintain a chain of custody and aid in maintaining the integrity of the data.
  • Make Forensic Copies: Make forensic copies of the original digital media—copies made bit-by-bit. You can use the evidence without changing or harming the original data by using these copies for analysis.
  • Maintain Chain of Custody: Clearly and continuously establish the chain of custody for the digital evidence. This involves recording when, by whom, and any modifications that were made to the evidence. The credibility and admissibility of the evidence in court are guaranteed by this paperwork.
  • Analyse the evidence: You might need to examine the gathered digital evidence for pertinent data, depending on the investigation’s nature. Keyword searches, data recovery, metadata analysis, and other methods might be used for this.
  • Preserve Metadata: Metadata, which includes creation and modification dates as well as user information, gives important details about the digital evidence. Maintaining and recording the evidence’s related metadata is important for proving its validity.
  • Adhere to the legal requirements: Observe all legal prescriptions and prescriptions for the gathering of digital evidence. Consult with legal experts to ensure compliance as laws and procedures may differ between jurisdictions.

Now, the traditional judicial system is based of physical testimony and evidences and they are ill-equipped with the tools to fight against the modern era crimes which involves cyber-crime, it is a Criminal activity carried out on computers, networks, or the internet. It entails using technology to conduct crimes or enable illicit activity. Cybercriminals take use of flaws in computer systems, networks, and software to obtain access without authorization, steal confidential data, commit fraud, disrupt services, and carry out other destructive acts. These crimes generate data stored as digital records, and courts can apportion liabilities only after studying such digital evidence. Digital Evidence has been marked under section 3(1)(e)(2) of the Indian Evidence act as any documentary evidence in electronic form presented before the court for inspection. And electronic records has been defined under section 2(1)(t) of the IT act while section 65B(2)  defines the conditions required for electronic record to be considered as digital evidence which includes –

  1. Computer the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
  2. during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
  3. throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
  4. the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

And to present these records as evidences section 65B (4) of the Indian Evidence Act provide for presentation of certificate before the court, that is to say –

  1. identifying the electronic record containing the statement and describing the manner in which it was produced;
  2. giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
  3. dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

But non-presentation of this certificate wouldn’t invalidate the evidence as it has been held by the supreme court that In UOI & Ors. Vs CDR. Ravindra V. Desai ( 2018 (4) TMI 1939- SC ) as SC, held that non production of Certificate under section 65B is a curable defect and the same has been up held by Madras High court in Arjun PanditRao Kaotkar vs Kailash Kushanrao Gorantyal & Ors. ( 2020 (7) TMI 740) the HC held that Section 65B doesn’t speak of stage at which the certificate has to be presented before the court. These sections show that the law as it stands today provides for the production of information in digital form as evidence in a court of law without the additional burden of producing them in tangible form.

Now, there were several judicial precedents based on the admissibility of digital evidences and one of the prominent amongst them was Sundar v. State, 2023 SCC OnLine SC 310[1]

A three-judge bench of SC in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 where it held that The evidence relating to electronic record, as noted hereinbefore, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65-A dealing with the of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65-A and 65-B.[2]

As a result, under the current legal framework, digital copies of electronic records may be used as evidence in court if they meet the non-technical and technical requirements outlined in Section 65B of the Indian Evidence Act. According to the legislation as it exists right now, the individual using or overseeing the computer system that creates the record is required to have the certificate. The rules of admissibility of electronic records can be made more victim-friendly by making the necessary amendments to the law to do away with the requirement for the certificate. When it comes to cybercrimes, the court may accept digital evidence without expert testimony to support its admissibility. Consequently, call recordings, screenshots, spreadsheets, audio and video data, etc.   

[1] Sundar v. State, 2023 SCC OnLine SC 310 (para 28 and para 29).

[2] Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473(para 22)

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Delhi High court Dismissed the appeal against the order of the Income Tax Appellate Tribunal

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Title: THE COMMISSIONER OF INCOME TAX – INTERNATIONAL TAXATION -3 vs SPRINGER NATURE CUSTOMER SERVICES CENTRE GMBH (EARLIER KNOWN AS SPRINGER CUSTOMERS CENTRE GMBH)

Judgment Reserved on: 25.05.2023  

Judgment Pronounced on: 12.07.2023

+ ITA 306/2023

CORAM: HON’BLE MR JUSTICE RAJIV SHAKDHER

   HON’BLE MR JUSTICE GIRISH KATHPALIA

Introduction

Delhi High court Dismissed the appeal against the order of the Income Tax Appellate Tribunal concerning Assessment Year (AY) 2013-14. Via the impugned order, the Tribunal has partly allowed the appeal preferred by the respondent/assessee.

Facts of the case

On March 31, 2015, the respondent/assessee submitted its return of income (ROI) for the pertinent AY, which was 2013–2014. The respondent/assessee originally processed its declaration of “nil” income under Section 143(1) of the Income Tax Act of 1961 through the aforementioned ROI. However, the ROI was chosen for examination, and as a result, the respondent/assessee was served with a notice dated 20.08.2015 issued under Section 143(2) of the Act. Three increases to the respondent’s income were made by the Assessing Officer (AO) through order dated 04.05.2016, which was issued in accordance with Section 143(3) read with Section 144C(3)(a) of the Act.

The first addition dealt with a sum equal to Rs. 24,84,114 being paid to the respondent/assessee by Springer India Pvt. Ltd. (also known as “SIPL”) in India in accordance with a Commissionaire Agreement. This addition was made up of two parts. The second increase, which the AO made, was for Rs. 16,67,83,110. This sum reflected the subscription costs the respondent/assessee had paid to two Indian companies, Informatics Publishing Private Ltd. and ZS Associates, for e-journals. The third increment amounts to Rs. 2,62,85,504 in total. On behalf of SIPL, the respondent/assessee collected this sum from Indian-based third parties whose consumers were purchasing online journals and/or books. The aforementioned sum is listed as “gross proceeds from sale by AE (Associate Enterprise) of Indian journal in printed form” in SIPL’s Form 3CEB report.

The AO saw the aforementioned three additions as royalties, and to that end, it made use of Section 9(1)(vi) of the Act and Article 12 of the Double Taxation Avoidance Agreement between Germany and India (often known as the “DTAA”). The respondent/assessee opted to file an appeal with the Commissioner of Income Tax (Appeals) (abbreviated “CIT(A)”) because it was unhappy with the changes that had been made. In a ruling dated 22.01.2019, the CIT(A) partially upheld the appeal. The second part of the initial addition, which was equal to Rs. 1,94,279 and had been labelled as “service charges” for the sale of “Indian journals in printed form,” was eliminated by the CIT(A). Insofar as the second and third additions were concerned, the CIT(A) confirmed the same, i.e., both with regard to the amount, as well as the treatment accorded to them by the AO. In other words, these amounts were treated as royalty, by the CIT(A) as well.

It is this decision which led to the respondent/assessee preferring an appeal with the Tribunal. As mentioned above, the CIT(A) affirmed the deletion of the first component of the first addition by the Tribunal in the assailed order dated 14.10.2022. The Tribunal cited a ruling issued by its coordination bench in the case of Springer Verlag GmbH v. DCIT in ITA Nos. 434 and 3826/DEL/2019, which was rendered on August 23,2022. The AYs 2014–15 and 2015–16 were covered by the Tribunal’s ruling.

Regarding the second addition, the Tribunal overruled the respondent/assessee’s argument, which claimed that the subscription fee could not be considered a kind of royalty. Regarding this matter, the Tribunal adhered to the ruling made by the Supreme Court in Engineering Analysis Centre of Excellence (P.) Ltd. v. CIT, [2021] 432 ITR 471 (SC).

Analysis of the court

In this case, the Tribunal disagreed with the CIT(A)’s conclusion. There was Rs. 22,89,835 at stake. The services provided by the respondent/assessee must unquestionably come within one or more of the following categories, namely managerial, technical, or consulting services, in order for this addition to be upheld as FTS. This is clear from a straightforward reading of Section 9(1)(vii)(b) of the Act, read with Explanation 2, and Article 12(4) of the DTAA.

Section 9 establishes a deeming fiction for income accruing or generating in India, which includes, among other things, FTS paid by a resident. Explanation 2 to the aforementioned provision defines FTS as any payment (including lump sum payments) for the provision of managerial, technical, or consulting services. Payments for the recipient’s own construction, assembly, mining, or similar projects are not considered to be FTS, nor are payments that would otherwise be considered compensation subject to taxation under the “salaries” heading.

As a result, the services provided by the respondent/assessee under the Commissionaire Agreement must fall under one or more of the aforementioned categories, namely management, technical, or consultant services, in order for the consideration received to be considered FTS. The respondent/assessee received a commission for providing the services at a rate of 9.9% on the net revenue total of “any and all” sales commissioned through the respondent/assessee’s intermediary. The assessor/respondent was authorised to keep the commission while transferring the revenue to SIPL or by any other commission payment arranged between SIPL and itself.

Nothing in the Commissionaire Agreement suggests that the respondent/assessee was required to identify, create, define, or evaluate the goals that SIPL needed to achieve, or even to frame the policies that led to these goals, supervise, carry out, or modify already-adopted policies. In a sense, the respondent/assessee was not carrying out executive or supervisory duties. The respondent/assessee was only required to provide assistance with company operations.

We do not feel motivated to challenge the Tribunal’s judgement on the removal of the added item in the sum of Rs. 22,89,835, on account of commission that the respondent/assessee got. We believe that the CIT(A) erred in concluding that the respondent/assessee’s receipt of the aforementioned sum possessed FTS characteristics.

The coordination bench judgement of this Court in DIT v. Panalfa Autoelektrik Ltd. addressed the characteristics of what constituted FTS in great detail. The coordination bench has addressed the order issued by the Authority for Advance Ruling (AAR) in Wallace Pharmaceuticals (P.) Ltd. in this ruling. Mr. Bhatia’s attempt to separate the ruling in DIT v. Panalfa Autoelektrik Ltd. must fail because it misinterprets the judgment’s real ratio.

The second addition is therefore brought into focus. We must note that Mr. Bhatia stated during the argument that the additional Rs. 16,67,83,110/- that the respondent/assessee received from its affiliates as a subscription fee for e-journals could not be considered a royalty due to the ruling made by the Supreme Court in Engineering Analysis. The idea that the subscription fee should be classified as FTS or, alternatively, as royalty has been raised for the first time in the written submissions, in contrast to the submission.

According to us, the argument that a subscription fee should be classified as FTS cannot be recognised because the appellant and revenue did not take this stance before the Tribunal. This flip-flop was made by respondent/assessee would do well to abjure. 

Considering that there is no evidence on file indicating that the respondent/assessee has granted the right in respect of copyright to the relevant subscribers of the e-journals, we also believe that the subscription fee cannot be classified as royalty. The only thing the respondent/assessee did was sell the publication that was protected by a copyright to the relevant organisations without granting any copyright to the content in question.

Given the ruling issued by the Supreme Court in the instance of Engineering Analysis, we believe the Tribunal acted correctly when it erased the addition made under this heading. For the aforementioned causes, we believe that there isn’t a significant legal issue that warrants our examination. The judgements mentioned above address the problems that were presented.

 As a result, the appeal is dismissed.

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Delhi High Court Dismissed the petition filed for Quashing of FIR under IPC & POCSO act

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Title: MOHD. AMAAN MALIK vs THE STATE GOVT NCT OF DELHI & ANR.

Reserved on:29.05.2023

Pronounced on:05.07.2023

+ CRL.M.C. 7121/2022 & CRL.M.A. 8829/2023

CORAM: HON’BLE MS. JUSTICE SWARANA KANTA SHARMA

Introduction

The Delhi High Court Dismissed a petition for the quashing of FIR No. 162/2021, has been filed on behalf of the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (the “Cr.P.C.”) for acts punishable by Sections 363/366A/376/505 of the Indian Penal Code, 1860 (the “IPC”) and Section 6 of the Protection of Children from Sexual acts Act, 2012 (the “POCSO Act”).

Facts of the case

The present FIR was filed on 29.05.21 based out-off the statement of victim. Victim and her mother had shifted to wazirabad from daryaganj two months prior to the incident. She met the accused Mohd. Amaan Malik, a native of Daryaganj in Delhi, who was around 20 years old, while she was attending classes there while she lived there. They had become pals at the tutoring centre and had begun using mobile phones to communicate. The defendant had phoned her at Sabzi Mandi and driven her in his automobile to a guest home in Sarai Kale Khan. After that, he had provided her drink and engaged in sexual activity with her without her permission. The victim also claimed that the accused had started using her as leverage by threatening to post her inappropriate photos on social media. As a result, the victim claimed that the accused had repeatedly taken her to Sarai Kale Khan’s guest house where he had forcibly engaged in sexual activity with her.

She discovered she was pregnant on April 7, 2021, and told her mother about it. Her mother then phoned the accused and informed them of the pregnancy. Amaan, the suspect, then went to the victim’s home and threatened both the girl and her mother. At Turkman Gate on April 9, 2021, he married the victim by intimidating her mother. He then took the victim and her mother to sign the marriage licence. He then began sharing a rental home with the victim in Wazirabad, close to her mother’s home.

Accused threatened the woman, beat and molested her, and put pressure on her to get an abortion. She had requested that the accused take her to her marital house, and he had responded that he had merely conducted the marriage to get rid of her. The victim underwent a medical examination at LHMC Hospital as part of the inquiry, and a positive pregnancy test result was obtained. She had verified her statement, which was recorded under Section 164 of the Criminal Procedure Code. Her pregnancy was ended at LHMC Hospital and the foetus was saved after additional research. The suspect was detained on May 29, 2021. Blood samples from the victim, the victim’s foetus, and the accused were collected, and sent for DNA examination. The accused/petitioner was identified as the foetus’ biological father by DNA testing. It was discovered over the course of the inquiry that the victim was married. Her date of birth, which was discovered in her school records to be 12.05.2004, meant that she was 17 years old when she legally wed the accused.

Analysis of the court

Before arriving at the conclusion, the Delhi High court referred to the principles laid down in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors.1992 SCC (Cri) 426 by the apex court, which is to be considered while quashing a FIRs and it also analysed the verdict of the apex court in the case of Neeharika Infrastructure v. State of Maharashtra 2021 SCC OnLine 315, and culled out the relevant principles that govern the law on quashing of FIRs under Section 482 of the Cr.P.C.

Based on the facts of the case the high court was of the opinion that on prima facie terms this was a case of sexual assault which had taken place in 2021 and due to societal stigma and pressure the victim was forced to marry the accused which got established from the date mentioned in Nikahnama, It was undisputed that the victim was a minor throughout this entire time. The Nikahnama dated 09.04.2021 further demonstrates that, considerably later than the alleged sexual assault of the victim, the victim was still a juvenile and had not yet reached the age of majority.

The Court also mentioned the controversy around the age of marriage in muslim personal law and applicability of POCSO act, it cited several judgements from various high courts as, In Aleem Pasha v. State of Karnataka 2022 SCC OnLine Kar 1588, the Hon. Karnataka High Court noted that Muslim personal law will be superseded by the POCSO Act, a unique piece of legislation designed to protect minors from sexual assaults. Earlier, in Rahul v. State of Karnataka 2021 SCC OnLine Kar 12728, the Hon’ble Karnataka High Court made a similar observation. The Hon’ble Kerala High Court recently ruled in Khaledur Rahman v. State of Kerala & Anr. 2022 SCC OnLine Ker 5833 that marriages between Muslims under personal law are not excluded from the POCSO Act’s purview and that if one of the parties to the marriage is a minor, offences under the Act still apply regardless of whether the marriage is valid or not. The Court, while referring to Section 42-A of the POCSO Act observed that the POCSO Act will prevail over personal laws and customary laws.

While on the other hand the delhi high court also took of  the Hon’ble Punjab and Haryana High Court held in the case of Gulam Deen v. State of Punjab 2022 SCC OnLine P&H 1485 that a Muslim girl beyond the age of 15 is competent to engage into marriage and that Muslim personal law governs a Muslim girl’s marriage. The National Commission for the Protection of Child Rights (NCPCR) filed Special Leave Petition (Criminal) No. 26834/2022 in opposition to the aforementioned ruling, and the Hon’ble Apex Court decided to consider the issue of whether a young Muslim girl can marry after reaching puberty. The Hon. Punjab and Haryana High Court in Javed v. State of Haryana, CRWP-7426-2022(O&M), it was determined that Muslim women who were 15 years old or older might wed someone of any race. In accordance with Section 12 of the 2006 Prohibition of Child Marriage Act, such a marriage would not be invalid due to the girl’s free will and agreement. However, the Hon’ble Apex Court ruled on 13.01.2023 in Special Leave Petition (Criminal) No. 35376/2022 submitted by NCPCR that the ruling in the matter of Javed (above) should not be used as precedent in any subsequent cases. In a nutshell, as of now, the question of whether a female who reaches puberty and the age of majority after turning 15 is still considered a minor would be governed by the provisions of the POCSO Act/Child Marriage Restraint Act or not, is pending for consideration and adjudication before the hon’ble Apex Court. As a result, there are inconsistent rulings over whether the POCSO Act and the Child Marriage Restraint Act, or the personal law, will apply to a juvenile who is married under Muslim law. In any event, the claims of rape in this case are made before the couples’ marriage rather than after it, thus the court will not discuss the legitimacy of the marriage between the present petitioner and the victim.

In any case, in the current case, the minor victim expressly denies that any sexual relationships were established with her consent and describes the specifics of her initial sexual assault and subsequent sexual assaults under the threat of having her inappropriate photos made public. In these circumstances, the present case is not covered by the cases of Bhajan Lal (previous) or Neeharika Infrastructure (previous), and this Court cannot conclude from the merits of the case that the allegations against the petitioner are baseless or improbable or that the alleged offence could not have occurred.

However, this circumstance is frightening and serves as a harsh warning reminder. Occasionally, after a sexual attack, a troubling trend develops in which the accused marries the victim, In an apparent attempt to avoid being charged with a crime, they immediately desert the victim if the FIR is dismissed or bail is obtained.

This Court is not disposed to utilise its inherent authority under Section 482 Cr.P.C. for the purpose of quashing the disputed FIR in light of the overall facts and circumstances of the case. However, given that the charge arguments have not yet been heard, the issues brought before this Court can be raised before the competent Trial Court, where they will be resolved in accordance with the law. As a result, both the current petition and the awaiting application are dismissed.

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Written By – Shreyanshu Gupta

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