Merely Because Victim Is Same Doesn't Mean Offence Is Same: Karnataka HC Permits Registration Of Separate FIRs For Minor's Rape By Several Accused

A single judge bench of Justice M Nagaprasanna said,

"There was physical contact of every man who had come in contact with a minor girl. Those are separate incidents which may have happened on the same day. The accused are different as every man was different. Merely because the victim is the same, it cannot be said that only one crime should have been registered and all of them should be put in one basket as accused in the said crime."

It thus rejected the argument of accused Mohammad Shariff @ Fahim Haji that separate crimes are being registered against every accused who had indulged in such sexual intercourse with the victim on her identifying them, though all the accused can be brought under one FIR and one charge sheet.

The accused had approached the court seeking to quash the FIR registered against him under Sections 363, 376, 506, 109 r/w 34 of the IPC and Sections 4, 6 and 17 of the Protection of Children from Sexual Offences Act, 2012.

It was contended by him that he was only a customer who was introduced to the victim by accused No.1 and being a customer who has indulged in alleged sexual intercourse with the complainant, a minor, cannot be proceeded against. He argued that under the Immoral Traffic (Prevention) Act, 1956, the customer is absolved.

The bench observed that a perusal of the chargesheet brings out horrendous offences committed by every accused, including the petitioner. The petitioner is said to have indulged in sexual intercourse with a minor, to have videographed the incidents on his phone and to be threatening to make it viral on social media. The complaint was lodged after the complainant came out of "clutches" of accused.

In this backdrop it observed, "It is not a case where the alleged victim was above 18 years and it is not a case that the Police have conducted a search and unearthed any incident in a particular place which has been used to run a rocket of prostitution. Here it is the complainant herself who registers the complaint. She is the victim of sexual abuse and has registered the said complaint."

It then held,

"Therefore, the learned senior counsel cannot draw parallel to a search being conducted on a spa, brothel or a lodge where the customer is found to have indulged in such activity with the victim. It is in those cases under the Immoral Traffic (Prevention) Act, those customers have been let off the hook. The case at hand is not the one of that kind. The offences do not stop at POCSO but even under the Information Technology Act for having threatened the victim that her videos would be uploaded on multiple websites."

Finally it opined that if the contention of the petitioner is accepted that he is a customer and he should be let off, it would be putting a premium on the activities of the petitioner who has indulged in such acts which prima facie meet the ingredients of all the offences alleged against him. "Technicality or hyper-technicality cannot mask the allegation of the kind alleged in the case at hand."

Accordingly, it dismissed the petition.

Case Title: MOHAMMAD SHARIFF @ FAHIM HAJI v. THE STATE OF KARNATAKA

Case No: CRIMINAL PETITION No.8502 OF 2022

Citation: 2022 LiveLaw (Kar) 446

Date of Order: 17TH DAY OF OCTOBER, 2022

Appearance: SANDESH J.CHOUTA, SR.ADVOCATE A/W LETHIF B., ADVOCATE for petitioner; V.S.HEGDE, SPP-II A/W K.P.YASHODHA, HCGP FOR R1; S.RAJASHEKAR, ADVOCATE FOR R2.

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