Calcutta High Court Refuses To Quash POCSO FIR Against ‘Priest’ Grand-Uncle, Says No Time Limit Can Be Prescribed For Filing Such Complaints

The Calcutta High Court has refused to quash the criminal proceedings under the Protection of Children from Sexual Offences Act (“POCSO Act”) initiated by a minor girl against her grand-uncle, a priest, accusing him of committing various acts of sexual assault upon her, when she was 15-16 years old.

In refuting the contentions raised by the petitioners, including the delay in filing of FIR, a single-judge bench of Justice Bibek Chaudhuri noted that the social stigmatisation of rape and sexual assault survivors often leads to them being unable to report such crimes, and held:

“There are a plethora of reasons why victims of sexual assault do not come forward with allegations. Firstly, they are discouraged from filing F.I.R. and are not believed by the authorities. This is coupled with the social stigma that a woman and her family face from society when such an act is committed against her. More importantly, sexual harassment and rapes are crimes which can cause lifelong trauma to the victims and it is impossible to mathematically calculate or prescribe a time limit as to when a person would recover and would be comfortable with filing a complaint.

It is not that the victim did not try to raise a complaint against the accused after the act was committed. She at once informed her father, who did not believe her. Therefore, she could not confide in him again after she was violated the second time. When she informed her brother, they were threatened by her father and his family and when they went to file the FIR in the police station, they were threatened there as well. Therefore, there seems to be a cogent reason for the delay in filing the FIR. It is the opinion of the Courts that the delay in FIR cannot be a reason for acquitting an accused person and this Court is of the opinion that technical grounds cannot be cited as a reason for quashing of the investigation at this stage in a heinous crime like sexual harassment of a girl child.

This Court is not inclined to believe the allegations of the accused and believes that there was sufficient reason which explained the cause of delay in filing the FIR. The matter at hand is not a rare case that justifies the Court's interference at the investigation stage. The allegation in the FIR makes out a prima facie case against the accused persons, and for this reason, the FIR registered should not be quashed.”

In this case, there were admitted differences between the parents of the girl, who had filed various complaints against each other, and had since been divorced, and were sharing custody of the children.

It was alleged that in the course of staying at her father’s/accused no 2’s house, the minor-girl was sexually assaulted on various occasions, by her grand-uncle, when she was 15-16 years of age. It was submitted that when the survivor gathered the courage to speak to her father about it, she was shut down, and that when her brother decided to confront the father about the same, the father slapped him.

In reply, it was argued by the petitioners that there had been an inordinate delay in the filing of the FIR by the minor, and that there existed mala fides in her complaint, since the alleged assault had occurred in 2018-19 but the FIR was filed in 2021.

It was submitted that there were several familial problems that had existed between the families of the minor’s father and mother respectively, which had been duly adjudicated upon by the Courts, and that a delay of two years was a “concoction and afterthought and lodged with the ulterior motive to humiliate the Petitioner and lower his prestige in the estimation of people in the society with frivolous allegations to share only selective information in order to mislead and suit the narrative and ulterior motive of the complainant.”

The petitioners further submitted, that the victim had refused physical medical examination, thus being in violation of Section 164A CrPC, and Section 27 of the POCSO Act, and requested the Court to take adverse note of the same.

It was further submitted by the petitioners that Section 39 of the POCSO Act had not been complied with, since there was no pre-trial assessment of the victim by reference to an expert/ psychologist/ counsellor/ mental health expert/ neurologist to assess and ascertain her actual mental and physical condition. It was argued that such an omission would negatively impact the case, as a psycho-medical assessment would have “demolished the false narratives.”

Finally, the petitioners questioned the bona fides of the victim, her mother and her brothers, by stating that the charge sheet was filed in a “mechanical manner”, with no independent witnesses being examined, leading to the petitioners detriment. It was argued that the mother/opposite party no 2 in attempting to get back at the father/co-accused no 2 was misusing the POCSO Act and her minor daughter. It was argued by the petitioners that the mother had ‘tutored’ the victim and her brothers in order to make false statements against the father and the petitioner.

In refusing to quash any of the criminal proceedings in the matter, the Court systematically dealt with each of the contentions raised by the petitioners and elaborated that the fact that the victim had filed the FIR when she turned 18 years old, would indicate that she understood the gravity of the complaint, and that no mala fide intent on part of the victim and her family was made out by the petitioners. It opined:

Several rounds of complaints and litigations have been going on between the parties involved for a long time. The accused persons and their families have lodged 13 complaints against the complainant and her children and the complainant have lodged 5 complaints against the accused persons. The victim was a woman of 18 years when she lodged the complaint and it is expected that she was fully aware of the nature of the accusations and the consequences she and her family would have to face if they turn out to be false. When a victim comes forward with an allegation of sexual assault, it tags along with the person and their families for the rest of their lives and it is given that they would have to face ostracization by the society in case the accused is proven innocent. This accused in this present case could not prove any mala fide intention. Still, even if they did, this Court would not have been compelled to go into the merits and demerits of the allegations simply because the petitioner alleges malus animus against the author of the FIR or the complainant, and use it as a reason to quash the FIR.”

On the issue of victim's medical examination the Court held,

"In this particular case of sexual assault, there was no penetrative act done by the accused on both occasions. On the first occasion, the victim touched the breasts and private parts of the victim without consent and on the second occasion, the victim was forced by the accused to touch his private parts. Therefore, it is apparent that medical examination by the doctor cannot prove whether these acts had been committed by the accused."

On the issue of delay the Court further held,

"It is not that the victim did not try to raise a complaint against the accused after the act was committed. She at once informed her father, who did not believe her. Therefore, she could not confide in him again after she was violated the second time. When she informed her brother, they were threatened by her father and his family and when they went to file the FIR in the police station, they were threatened there as well. Therefore, there seems to be a cogent reason for the delay in filing the FIR."

Coram: Justice Bibek Chaudhuri

Case: Shreekant Sharma Vs. The State of West Bengal & Anr

Citation: 2023 LiveLaw (Cal) 195

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