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POCSO Act: All India High Courts Digest 2022
LIVELAW NEWS NETWORK
5 Jan 2023 10:00 AM IST
LiveLaw reported almost 7,000 orders and judgments in 2022 from various High Courts across the country. Here are some important decisions relating to the Protection of Children from Sexual Offences:1. POCSO Act Not Intended For Teenagers' Romantic Affair: Allahabad HCCase title - Atul Mishra v. State Of U.P. And 3 OthersCase citation: 2022 LiveLaw (AB) 51The High Court recently granted bail to...
LiveLaw reported almost 7,000 orders and judgments in 2022 from various High Courts across the country. Here are some important decisions relating to the Protection of Children from Sexual Offences:
1. POCSO Act Not Intended For Teenagers' Romantic Affair: Allahabad HC
Case title - Atul Mishra v. State Of U.P. And 3 Others
Case citation: 2022 LiveLaw (AB) 51
The High Court recently granted bail to a POCSO Accused who ran away with a 14-year-old girl (victim) due to a romantic affair between them. The Court noted that both of them fled away, got married in a Temple, and remained in company with each other for almost two years during which the girl even gave birth to a baby.
The Bench of Justice Rahul Chaturvedi also remarked that it would be extremely harsh and inhuman to devoid the baby from parental love and affection on account of the fact that both the accused and minor victim loved each other and decided to get married.
The Court, in a significant clarification also said that the scheme of the POCSO Act clearly shows that it did not intend to bring within its scope or limits, the cases of the nature where the adolescents or teenagers are involved in a dense romantic affair.
Case Title: Amrita Nand @ Tribhuvan Arjariya @ Baba v. State of U.P. and Another.
Citation: 2022 LiveLaw (AB) 122
The Allahabad High Court held that the Competency Certificate of a child witness is not mandatory if the child gives rational answers to the court's questions and his testimony is unshaken, inspires confidence of the Court.
"Nowhere it is provided that certificate regarding the competency of the child witness is mandatory. If it is recorded, it is so far so good. But, if the court has put the question to understand his intellect to understand the question and if he replied the rational answer and thereafter his examination was recorded without recording the certificate regarding the competency of the witness and he was thereafter cross examined by counsel for the accused and had replied satisfactorily and given rational answer, therefore, in above circumstances not appending the certificate by the trial judge regarding the competency of the witness is of no consequence and it will not make his statement inadmissible," Justice Mohd. Aslam observed.
Case title - Chndra Prakash Sharma v. State Of U.P And Another
Case Citation: 2022 LiveLaw (All) 172
Stressing that the depth of penetration is immaterial in an offence of rape, the High Court denied bail to a man who committed rape on an 8-year-old girl. The Bench of Justice Sanjay Kumar Singh further observed that little girls are worshipped in our country, but the cases of pedophilia are increasing.
The Court also said that a victim/female small child who experiences sexual abuse once in her life, tend to be more vulnerable to abuse in adult life, and in such cases, the healing is slow and systematic.
Case title - Govind v. State of U.P
Case Citation: 2022 LiveLaw (All) 173
The High Court denied bail to a man who has been accused of committing oral sex with a 8 year old girl as it noted that mere long detention in jail does not entitle an accused for bail.
The Bench of Justice Rajesh Singh Chauhan further noted that the victim/prosecutrix was about 8 years at the time of incident, and therefore, the Court said, at the stage of bail, it cannot be presumed that she gave the statement about oral sex under the influence of her parents.
Case title - Ashish Yadav v. State Of U.P And Another [CRIMINAL MISC. BAIL APPLICATION No. - 23834 of 2022]
Case Citation: 2022 LiveLaw (AB) 395
The Allahabad High Court has requested the High Court Legal Services Committee Allahabad to appoint lady counsels to represent the victims especially when the victims are minor girls.
The bench of Justice Ajay Bhanot was essentially dealing with the bail plea of a POCSO Accused when it noted that very few lady counsels appear to represent the victims from the side of the High Court Legal Services Committee.
"The High Court Legal Services Committee, High Court Allahabad has been empanelled counsels to represent the victims. However, it is noticed that very few lady counsels have appeared for the victims. In such circumstances, the High Court Legal Services Committee, High Court Allahabad is requested to appoint lady counsels to represent the victims especially when the victims are minor girls," the Court said.
Case title - Manoj Saxena v. State of U.P. and Another [CRIMINAL MISC. BAIL APPLICATION No. - 27038 of 2022]
Case Citation: 2022 LiveLaw (AB) 429
The Allahabad High Court granted bail to an accused booked for committing an Aggravated Sexual Assault (punishable under Section 10 of the POCSO Act) upon a 8 year old girl as her parents refused to get her medically examined.
The bench of Justice Sadhna Rani (Thakur) granted bail to accused Manoj Saxena taking into account the larger mandate of Article 21 of the Constitution of India and the Apex Court's dictum in the case of Dataram Singh v. State of U.P. and another (2018) 2 SCC 22
Case title - Rajiv Kumar v. State Of U.P. And 2 Others [APPLICATION 482 No. - 4392 of 2016]
Case Citation: 2022 LiveLaw (AB) 442
The Allahabad High Court quashed an FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife (who was a minor at the time of the incident) married the applicant/accused out of her own sweet will and is living a happy married life with him.
"To punish the offenders for a crime, involved in the present case, is in the interest of society, but, at the same time, the husband is taking care of his wife and in case, the husband is convicted and sentenced for societal interest, then, the wife will be in great trouble and their future would be ruined. It is also in the interest of society to settle and resettle the family for their welfare," the bench of Justice Manju Rani Chauhan observed as it quashed the rape-POCSO case against the accused.
Case title - Praveen Kashyap v. State Of U.P. And 3 Others [CRIMINAL MISC. BAIL APPLICATION No. - 36810 of 2022]
Case Citation: 2022 LiveLaw (AB) 464
The Allahabad High Court denied bail to a man accused of raping a minor girl (16-17 years old) after marrying her with her consent as the Court noted that the consent of the minor is no consent at all.
The bench of Justice Sadhna Rani (Thakur) opined that even if the minor she left her home, solemnized marriage, and had physical relations with the applicant with her consent, her consent, being consent of the minor, cannot be said to be of any significance.
Case title - Monu v. State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others [CRIMINAL MISC. BAIL APPLICATION No. - 10567 of 2022]
Case Citation: 2022 LiveLaw (AB) 465
The Allahabad High Court granted bail to a POCSO accused booked for raping a minor girl (17 years old) with whom he allegedly eloped, on the condition that he would marry her within a period of one month and shall give all rights to her and his child as wife and daughter.
While granting him bail, the Bench of Justice Dinesh Kumar Singh took into consideration the stand of the prosecutrix and her father who stated that they had no objection if the accused is released on bail. The Court also noted the fact that the Girl had already delivered a child from the accused applicant.
Case title - Arti Devi v. State of U.P. and Another [APPLICATION U/S 482 No. - 9242 of 2022]
Case Citation: 2022 LiveLaw (AB) 483
The Allahabad High Court has observed that the statement of the 13-year-old boy that the applicant has committed an act being 'Gandi Harkat' (loosely translated as Dirty Act) would be prima facie sufficient ground to summon the accused (a lady in this case) as per Section 204 CrPC.
The bench of Justice Saurabh Shyam Shamshery further clarified that such an act, if the commission of the same is proved in the trial, could amount to an offence under Sections 7 and 8 of the POCSO Act as even touching a private part of a child with sexual intent may fall under 'sexual assault' under Section 7 of POCSO Act.
11. Child Born Out Of POCSO Crime A "Victim" As Defined Under Section 2(wa) CrPC: Bombay High Court
Case Title: Ramesh Tukaram Vavekar v. State of Maharashtra & Anr.
Citation: 2022 LiveLaw (Bom) 55
Reducing the life sentence awarded to a rape convict to 10 years, the Bombay High Court directed him to pay compensation to the child born out of his illicit acts observing that the baby was also "victim" as contemplated under Section 2(wa) of the CrPC.
The victim had not only been abandoned by the appellant but also by her real mother(PW 1). They did not stop there but had put the life of the newly born child into jeopardy by sending him in an Orphanage. In view of Section 2(w a) of the Code of Criminal Procedure, the "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and expression "victim" includes his or her guardian or legal heir. The child born to the victim is indeed her legal heir and also a victim in view of the definition of "victim" and therefore, he must be adequately compensated for as it was the appellant who is responsible for bringing him in this world and then abandoning him at the mercy of an Orphanage.
Case Title: Atul Gorakhnath Ambale Versus The State of Maharashtra
Citation: 2022 LiveLaw (Bom) 155
The Bombay High Court observed that delay in trials in cases of sexual abuse often lead to re-victimization and ignominy, as the trial process itself makes the victim re-live the horrific experience and in cases of small children, due to their vulnerability, it may lead to further trauma.
Single judge Revati Mohite Dere said,"this Court has come across several cases, where the child/victim's evidence is not recorded for years and hence, it would be appropriate to issue some directions to the trial Courts conducting cases under the Protection of Children from Sexual Offences Act ('POCSO')."
13. Kissing & Fondling Not Unnatural Offence U/S 377 IPC: Bombay High Court Grants Bail To POCSO Accused
Case Title: Prem Rajendra Prasad Dubey vs The State of Maharashtra
Citation : 2022 LiveLaw(Bom) 190
The Bombay high Court observed that kissing and touching private parts are prima facie not unnatural offences under Section 377 of the Indian Penal Code, therefore it granted bail to a man accused of a minor boy's sexual assault.
Regarding offences under sections 8 and 12 of the POCSO Act with maximum punishment of five years, the bench observed that the applicant is in custody for almost one year, the charge is not yet framed and trial is not likely to commence in the immediate future.
Case Title – Nauman Suleman Khan v State of Maharashtra & anr
Citation : 2022 LiveLaw (Bom) 200
The Bombay High court quashed an FIR under Protection of Children from Sexual Offences Act (POCSO Act) for penetrative sexual assault, as the victim girl (now a major) said that she and the accused were allegedly in love and are now to be married.
The court observed it was "inclined to accept the request for quashing the FIR, only by considering their future. If the prosecution still remains, it will come in their peaceful life."
Case Title: Ramchandra Shrimant Bhandare v. State of Maharashtra
Citation: 2022 LiveLaw (Bom) 307
Bombay High Court held that touching the private parts of a child with sexual intent is enough for it to be construed as sexual assault under section 7 of the POCSO Act and a medical certificate demonstrating an injury is not mandatory.
Justice Sarang Kotwal held, "The absence of injury mentioned in the medical certificate will not make any difference to her case because the very nature of the offence of sexual assault defined under Section 7 of the POCSO Act mentions that even touching private part with sexual intent is sufficient to attract the provisions of Section 7 read with Section 8 of the POCSO Act."
16. Half of Life Imprisonment Is 10 Years for POCSO Offences: Bombay High Court
Case Title: Suresh @ Pintya Kashinath Kamble v. State of Maharashtra
Citation: 2022 LiveLaw (Bom) 352
The Bombay High Court sentenced a convict to one half of life imprisonment under the POCSO Act, who will have to undergo a sentence of 10-years.
Justice Sarang Kotwal held that since life imprisonment was not defined under the POCSO Act, the definition of life imprisonment under section 57 of the Indian Penal Code would apply.
The section provides that for calculating a fraction or part of an entire sentence, life imprisonment would be equivalent to imprisonment for twenty years.
"Thus, half of life imprisonment in such cases would mean imprisonment for ten years," Justice Kotwal observed while disposing off the petition.
Case Title: Rashmi Taylor v. State of Maharashtra & Ors.
Citation: 2022 LiveLaw (Bom) 367
The Bombay High Court directed a public interest litigant seeking proper enforcement of POCSO Act, to approach the High Court Committee on POCSO matters, with his suggestions.
The petition sought directions to the Special Courts to ensure that the testimony of the minor victim is recorded within one month, as per Section 35(1) of the POCSO Act. The ad-hoc committee overseeing POCSO matters comprises of Justice Revati Mohite Dere, Justice A. S. Gadkari and Justice Bharati Dangre.
The petition challenged non-compliance of Section 35 of the POCSO Act read with section 309 of CrPC and the directions of Supreme Court in Alakh Alok Shrivastava v. Union of India. The PIL also sought a direction to all Special POCSO Courts for a time bound conclusion of cases.
Case Title: Faizan Wahid Baig v. State of Maharashtra
Citation: 2022 LiveLaw (Bom) 452
The Bombay High Court granted bail to a man accused of raping a minor girl observing that the two were in a relationship and the girl, though minor, understood the consequences of her act. The girl was 15 years and 4 months old while the accused was about 21 years old at the time of the alleged incident.
"In a case like this, where she voluntarily joined the company of the applicant, and she had categorically admitted that she was in love with the applicant, whether that she consented for the sexual intercourse or not, is the matter of evidence," Justice Bharati Dangre stated in her order.
Case Title: Vilas Shantaram Kaldhone v. State of Maharashtra & Anr.
Citation: 2022 LiveLaw (Bom) 474
Justice Sarang V. Kotwal, while dealing with an appeal against POCSO conviction, observed that the appellant, as a convict and as an undertrial prisoner prior to that, had already been in jail for longer than the minimum sentence under section 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) at the time of the offence and his conduct in the jail is satisfactory.
The court upheld the conviction observing that the DNA report is one of the most incriminating pieces of evidence and cannot be overlooked.
Case Title: Md. Israil v. The State of West Bengal
Citation: 2022 LiveLaw (Cal) 23
The Calcutta High Court observed that there is existing social stigma associated with the offence of rape and accordingly held that a delay in lodging FIR in cases of such nature would not vitiate the prosecution case. The Court accordingly upheld the conviction of a man for raping a minor victim aged 14 years who had subsequently given birth to a still born child. A Bench comprising Justices Joymalya Bagchi and Bivas Pattnayak observed that it is apparent that the victim did not inform anyone about the crime due to continuous threats by the appellant and that she had proceeded to lodge the police complaint only after her pregnancy was discovered. "I am also not unmindful of social stigma attached to the nature of the offence which might have also attributed to the delay in lodging FIR. Even otherwise, the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case", the Court underscored. Further the Court observed that there is no evidence of concoction of a false version or embellishment and accordingly dismissed contentions pertaining to the delay lodging of an FIR.
Case Title: Ganesh Orang v. State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 33
The Calcutta High Court observed that lacunae in the prosecution case due to patent contradictions or inherent improbabilities cannot be cured by resorting to statutory presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak observed, "Glaring lacunae in the prosecution case undermines the credibility of the factual foundations which require to be prima facie established to attract the statutory presumption. When the primary facts relating to time, place and circumstances constituting the offence are not prima facie established due to patent contradictions or inherent improbabilities, such lacuane cannot be cured by resorting to statutory presumptions in law". Accordingly, the Court acquitted the appellant by observing, "In order to attract the statutory presumption under Section 29 of the POCSO Act the factual foundations with regard to the ingredients of the offence under Section 6 of the said Act require to be established in the first place..in the light of the contradictory and inconsistent versions with regard to the allegation of rape levelled against the appellant, the factual foundations of the prosecution case has not been laid on the basis of preponderance of probabilities so as to attract the statutory presumption and the appellant is therefore entitled to an order of acquittal."
Case Title: Dipak Singha v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 60
The Calcutta High Court observed that penetration even of the slightest degree is necessary to establish the offence of rape and accordingly held that the appellant should be convicted for the offence of attempt to rape instead of the offence of rape. A Bench comprising Justices Bivas Pattanayak and Joymalya Bagchi was adjudicating upon a case wherein the appellant had been convicted for raping a victim girl aged around 11 years. The Division Bench observed that the evidence on record shows that no case of penetration has been deposed either by the victim or other witnesses and accordingly held, "It is settled law penetration even of the slightest degree is necessary to establish the offence of rape. An analysis of the evidence on record shows no case of penetration has been deposed either by the victim or other witnesses. Although absence of injuries or non-rupture of hymen is not a sine qua non to prove the offence of rape, in the factual matrix of the case where the victim herself states that the appellant attempted to rape her absence of injuries in her private parts corroborate the conclusion that the case was one of attempt to commit rape."
Case Title: Ram Sevak Lohar v. State
Case Citation: 2022 LiveLaw (Cal) 92
While opining that the sole evidence of a victim of sexual assault is enough to secure a conviction, the Calcutta High Court observed that the evidence of a victim need not be tested with the same amount of suspicion as that of an accomplice. A Bench comprising Justice Shekhar B. Saraf and Justice Kesang Doma Bhutia observed that the Supreme Court in various decisions have held that barring serious exceptions, the evidence of victim of sexual assault is enough for conviction. Opining that the evidence of a victim of sexual assault need not be tested with the same amount of suspicion as that of an accomplice, the Court underscored, "A girl, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. Maintaining that the sole and trust worthy evidence of a woman, who is a victim of a sexual offence, is enough to find her assailant guilty. An accused guilty for committing of offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality." The Court further observed that the testimony of a minor sexual assault victim must be appreciated taking into account the facts and circumstances of the case. It was also noted that even if the mother of the victim turns hostile. the sole evidence of the victim if found reliable can be enough to secure a conviction. "..it has been held rape is not mere physical assault but instead destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and therefore, the testimony of the prosecutrix must be appreciated on the background of the entire case, even if the mother turns hostile", the Court observed further.
Case Title: Rohit Pal v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 121
The Calcutta High Court held that it is immaterial whether the breasts of a 13 year old girl are developed or not for the commission of the offence of sexual assault under Section 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) as long as it is proved that the accused had touched the specific part of the body of the girl with sexual intent. During the proceedings, it was alleged on behalf of the appellant that since the the concerned Medical Officer had deposed that the breasts of the victim girl was not developed, the question of touching breasts by the accused did not arise at all. Dismissing such a contention, Justice Bibek Chaudhuri observed, "In the instant case, the victim girl stated in clear term before the Learned Magistrate as well as during trial that the accused touched her breasts and kissed her. It is absolutely immaterial whether breasts of a 13 years old girl were developed or not. The specific part of the body of a girl of 13 years of age shall be held and term as breast for the purpose of Section 7 of the POCSO Act even if her breasts are not developed due to certain medical grounds".
Case Title: Prafulla Mura v. The State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 131
The Calcutta High Court issued practice directions in order to ensure that the identity of victims of sexual offences including minor victims under the POCSO Act are not disclosed in the pleadings and other records of the Court. The directions were issued while adjudicating upon an appeal filed challenging an order of conviction under Section 6 of the POCSO Act wherein the appellant had arrayed the minor victim as a respondent describing her by name and also disclosing her father's name. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi observed that such a disclosure in the petition of appeal runs contrary to the provisions of Section 33(7) of the POCSO Act as well as Section 228A of the IPC. Opining that necessary amendments are required to be made to the rules of this Court to avoid such disclosure of identity of victims, the Court underscored, "In order to avoid illegal publication of identity and other particulars of victim of offences under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E of the Indian Penal Code as well as minor victims in the pleadings and/or documents filed before this Court, necessary amendments are required to be made to the rules of this Court." Thus, the Court also ordered the Registrar General to place the matter before the Rule Committee of the Court for considering the issue of amendments of the rules of the Court so that the identity of victims of sexual offences including minor victims under POCSO Act are not disclosed in the pleadings and other records of the Court.
Case Title: Chitta Biswas v. The State of West Bengal & Anr
Case Citation: 2022 LiveLaw (Cal) 172
The Calcutta High Court upheld conviction for the offence of aggravated sexual assault under Section 10 of the Protection of Children from Sexual Offences Act (POCSO Act) by opining that surrounding circumstances like the accused making the minor victim girl naked prove the culpable mental state of the accused. Justice Bibek Chaudhuri also rejected the argument that since nobody saw the accused touch the private part of the victim girl, it would not constitute the offence of sexual assault. "Learned Advocate for the appellant submits that nobody saw the accused touching private part of the victim and from the evidence of PW3 it is found that the accused was sitting by the side of the victim girl who was lying on the varanda of PW3 in naked condition, the accused ought to have been convicted under Section 11 of the POCSO Act for the offence of sexual harassment. I am not in a position to accept such submission made by the learned Advocate for the appellant because there was no reason for not to treat the specific acts by the appellant as the acts of sexual assault within the meaning of Section 7 of the POCSO Act", the Court observed. Opining that the sexual intent of the victim has been proved beyond any shadow of doubt, the Court further underscored, "The surrounding circumstances like the accused having taken the victim to the house of PW3 when she was not present, pulling down her pant, making her naked amply prove culpable mental state of the accused and in such a case, the court is entitled to raise statutory presumption about the culpable mental state of the accused as permitted under Section 30 of the POCSO Act. The said presumption has not been rebutted by the accused by proving that he has no such mental state. Therefore, sexual intent of the accused is established beyond any shadow of doubt."
Case Title: Rajinder Lohar v. The State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 177
The Calcutta High Court has commuted the sentence of life imprisonment awarded to a man convicted of raping a 7 year old girl after taking into account that the convict had no criminal antecedents and that he had already suffered incarceration for about 18 years. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi opined that although in the instant case a minor victim had been raped, the accused was also a young person who was barely above 18 years of age at the time of the incident. Commuting the life sentence imposed, the Bench observed, "Although, the victim was a minor and was forcibly raped, appellant was also a young person who was barely above 18 years at the time of occurrence. He does not have criminal antecedents. Keeping in mind the aforesaid facts and as he has already suffered incarceration for about 18 years, I modify the sentence imposed upon the appellant and direct that he shall suffer imprisonment for the period already undergone in place of the maximum sentence of life imprisonment imposed upon him and pay the fine imposed upon him by the trial Court, in default, shall suffer rigorous imprisonment for one year."
Case title - Azad Ali Saha v. State of West Bengal
Case Citation: 2022 LiveLaw (Cal) 262
The Calcutta High Court upheld the conviction of a man for raping a 5-year-old girl by observing that the non-rupture of the hymen of a minor child would not wholly rule out a case of rape. Taking into account the facts, circumstances of the case, and the evidence adduced, the Bench of Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay observed thus: "A combined reading of medico-legal evidence on record categorically shows injuries on the vulva as well as inner aspect of thighs of the victim which probabalise a case of rape. Slight penetration is sufficient to constitute rape. Non-rupture of the hymen as noted by PW 11 is to be assessed in the light of the aforesaid proposition of law. Hence, non-rupture of the hymen of a minor child would not wholly ruled out a case of rape."
Case title - Soumen Biswas @ Litan Biswas vs State of WB
Case Citation:2022 LiveLaw (Cal) 303
The Calcutta High Court issued a slew of directions to the Special Courts to ensure a smooth, prompt and seamless examination of the minor victim of sexual offences. The bench of Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay issued the directions while rejecting a bail plea filed by POCSO accused as it noted that the trial Court had failed to act n accordance with the procedure laid down in Section 33 of POCSO Act regarding the manner of examination of the minor victim. Our readers may note that Section 33 of the POCSO Act provides for a child-friendly atmosphere for the examination of a minor. It requires that such examination has to be conducted in presence of her guardian, a friend, or a relative.
30. Delhi High Court Enhances Compensation For Child Sexual Abuse Survivors From Rs 7 Lakh To 10.5 Lakh
Case Title: X v. STATE OF NCT OF DELHI (ACTING THROUGH ITS SECRETARY) & ANR.
Citation: 2022 LiveLaw (Del) 996
Ordering increase in the amount of compensation for survivors of child sexual abuse from Rs 7 lakh to at least Rs 10.5 lakh under the 2018 Delhi Victim Compensation Scheme, the Delhi High Court said that the final compensation to the victims must be the maximum amount as provided in the scheme's schedule.
The schedule of 2018 scheme mentions both minimum as well as the upper limit of compensation to be awarded to victims.
Justice Jasmeet Singh said that special courts will be within their rights to adjudicate and grant compensation for more than 10.5 lakhs and will also decide the final as well as the interim compensation to be granted.
Case Title: ABC v. State
Citation: 2022 LiveLaw (Del) 984
Observing that offences against minors, especially sexual assault, are increasing alarmingly, the Delhi High Court stressed that it is necessary for the courts to "imbibe the legislative wisdom" behind enactment of the Protection of Children Against Sexual Offences (POCSO) Act.
Observing that rape is a heinous crime which is abhorrent not only as against the victim but also against society at large, a division bench of Justice Siddharth Mridul and Justice Anup J. Bhambhani observed:
"The plight of a victim and the shock suffered can be felt instinctively; as the victim of rape is left devastated by the traumatic experience, as well as an unforgettable shame; being haunted by the memory of the horrific experience forcing her into a state of terrifying melancholia."
Case Title: DR. BABA SAHEB AMBEDKAR HOSPITAL GOVT. OF NCT OF DELHI & ANR. v. DR. KRATI MEHROTRA
Citation: 2022 LiveLaw (Del) 201
The Delhi High Court has observed that as long as conception occurs before the tenure of the contract executed between a woman-employee and her employer expires, she should be entitled to maternity benefits as provided under Maternity Benefits 1961 Act.
A division bench comprising of Justice Rajiv Shakdher and Talwant Singh observed that the Act seeks to regulate the employment of women in certain establishments for given periods before and after child-birth, and, in particular, endeavours to provide for maternity benefit.
"Clearly, the provisions of the 1961 Act seek to invest a woman with a statutory right to take maternity leave and seek payment for the period that she is absent from duty on account of her pregnancy, albeit in accordance with the provisions of the 1961 Act," the Bench said.
Case Title: Mohd. Afsar v. State, Crl. A. 274/2020
Citation: 2022 LiveLaw (Del) 109
The Delhi High Court recently refused to accept the rough estimation of age, given by a rape victim's father, to determine whether the offences under the POCSO Act are attracted.
Justice Mukta Gupta observed that to determine the age of a victim, suspected to be a minor, Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules 2007 applies. It provides that the first priority has to be given to the Matriculation or equivalent certificate and in the absence thereof, to the date of birth certificate from the school first attended other than a play school.
In the instant case, the Bench noted that as per the date of birth recorded in the school first attended, the prosecutrix was a child in terms of Section 2(1)(d) of the POCSO Act as she was below the age of 18 years.
Thus, even if in the cross examination, her father had given a rough approximation of her age, the same cannot be taken as an exact estimation of the date of birth of the prosecutrix.
Case Title: Ravinder v. State
Citation: 2022 LiveLaw (Del) 85
The Delhi High Court has held that a trustworthy testimony of a child witness is sufficient to record a conviction under the POCSO Act. At the same time, the Court struck a note of caution that the testimony has to be evaluated more carefully.
The observation was made by Justice Manoj Kumar Ohri while hearing an appeal against conviction under Section 12 of the POCSO Act, which pertains to sexual harassment upon a child.
After perusing the facts and circumstances of the case, the Court finally set aside the conviction of the accused, citing unreliable testimonies of the prosecution witnesses.
Case Title: xyz v. GNCTD
Citation: 2022 LiveLaw (Del) 2
Observing that reproductive choice is a facet of reproductive rights of a woman and a dimension of her personal liberty, the Delhi High Court has allowed termination of 28 weeks foetus of a 33 year old woman. The foetus was suffering from various abnormalities including Tetralogy of Fallot (TOF) with Absent Pulmonary Valve Syndrome (APV).
Justice Jyoti Singh also observed that the mother cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board.
"As repeatedly held by the Courts, in the judgements referred above, reproductive choice is a facet of reproductive rights of a woman and a dimension of her 'personal liberty', enshrined in Article 21 of the Constitution of India and thus the Petitioner cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy, in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board," the Court said.
Case Title: SANGEETA THAPA v. GOVERNMENT OF NCT OF DELHI & ORS.
Citation: 2022 LiveLaw (Del) 11
The Delhi High Court has allowed termination of pregnancy of a 28 year old woman whose gestational period had exceeded 28 weeks after taking note of her mental and emotional distress apart from the foetus abnormalities.
Justice Rekha Palli relied on a recent order of a coordinate bench wherein the Court allowed termination of 28 weeks foetus of a 33 year old woman observing that reproductive choice is a facet of reproductive rights of a woman and a dimension of her personal liberty. The Court had also observed that the mother cannot be deprived of the freedom to take a decision to continue or not to continue with the pregnancy in the backdrop of the foetal abnormalities brought forth in the Medical Opinion of the Board.
The petitioner in this case had sought medical termination of her pregnancy on the ground that the foetus was suffering not only from Edward Syndrome (Trisomy 18) but also from non-ossified nasal bone and bilateral pyelectasis.
Case Title: RAM NAWAL v. STATE
Citation: 2022 LiveLaw (Del) 12
The Delhi High Court has upheld the conviction and sentence awarded to a man for raping a 5 year old minor victim in a POCSO case. The Court observed that penetration is sufficient in order to constitute an offence under Section 376 (rape) of IPC and Section 6 of the POCSO Act and that presence of the semen is not necessary.
"Undoubtedly, as per the FSL and DNA fingerprinting report neither any semen was detected nor were the alleles from the appellant accounted in the blood smears or the vaginal smears of the prosecutrix. To constitute an offence punishable under Section 376 IPC and Section 6 of the POCSO Act, penetration is sufficient and it is not necessary that semen needs to be essentially present," Justice Mukta Gupta observed.
The Court was dealing with an appeal challenging the judgment dated 12th January, 2018 wherein the appellant was convicted under sec. 6 of the POCSO Act. Sec. 6 of prescribes the punishment for aggravated penetrative sexual assault.
Case Title: RAKESH @DIWAN v. STATE OF NCT OF DELHI
Citation: 2022 LiveLaw (Del) 424
The Delhi High Court has reiterated that a convict under the Protection of Children from Sexual Offences Act, 2012 is not barred from seeking parole, as discretion has been vested in the Competent Authority to grant parole to such a convict under "special circumstances".
Justice Asha Menon added that while there is no doubt true that the Legal Services Authorities at all levels endeavour to provide excellent legal assistance to those in prison, however, to deny the convict an opportunity to engage with other counsel to enable him to make up his mind freely, as to whom he would wish to engage, would violate his constitutional rights to legal representation.
The Court was dealing with a plea seeking release of the petitioner on parole for a period of eight weeks on the grounds of filing Special Leave Petition.
39. POCSO Act Will Be Applicable To Minor Muslim Girl Who Has Attained Age Of Puberty: Delhi High Court
Title: IMRAN v. STATE OF DELHI THROUGH COMMISSIONER OF DELHI POLICE & ORS.
Citation: 2022 LiveLaw (Del) 620
The Delhi High Court has rejected a contention that according to Muslim law, since the victim has attained the age of puberty, the rigours of POCSO Act will not be applicable.
Justice Jasmeet Singh observed that the statement of object of the POCSO Act states that the Act is aimed to secure the tender age of the children and ensure they are not abused and their childhood and youth is protected against exploitation.
Case Title: Umesh v. State (and other connected matters)
Citation: 2022 LiveLaw (Del) 621
The Delhi High Court has observed that Special Courts must, on their own, initiate action for grant of interim compensation to child victims at the earliest, without waiting for them to file an application for the same.
Justice Jasmeet Singh was dealing with a bunch of pleas wherein a predecessor bench had sought to streamline the process of supplying FIRs pertaining to commission of sexual offences to DSLSA, for the purposes of granting interim compensation to the victims.
The development came after the Court was apprised that when the applications are moved before the Special Court for interim compensation, it takes two to three hearings before any effective order is passed in the same.
CASE TITLE: MS X THROUGH HER LEGAL GUARDIAN v. GOVERNMENT OF NCT OF DELHI & ANR.
Citation: 2022 LiveLaw (Del) 684
The Delhi High Court has permitted a minor victim of sexual assault to terminate her pregnancy of 25 weeks and 6 days old pregnancy.
Justice Yashwant Varma, while noting that the Medical Termination of Pregnancy Act deals with pregnancies which may only extend upto 24 weeks, highlighted that in exceptional situations, the Court could invoke its extraordinary powers to permit for such termination, even when the provisions of the Act, when strictly construed, may not sanction the same.
"This Court is of the firm opinion that if the petitioner was forced to go through with the pregnancy despite the same having been caused on account of the incident of sexual assault, it would permanently scar her psyche and cause grave and irreparable injury to her mental health. The Court cannot visualize a more egregious invasion of her right to life as guaranteed by Article 21 of the Constitution."
Case Title: MOHD AZIZUL v. STATE
Citation: 2022 LiveLaw (Del) 784
The Delhi High Court has held that a man accused of sexually abusing a minor cannot be punished under Section 6 of the POCSO Act for the offence of 'aggravated penetrative sexual assault' when the alleged act falls short of 'penetration'.
The bench of Justice Jasmeet Singh held that without penetration, such act is only an attempt to rape or aggravated sexual assault as per Section 9(m) of the POCSO Act, which is punishable under Section 10 of the Act with 5-7 years imprisonment and fine.
The Court was dealing with an appeal against conviction for aggravated penetrative sexual assault on a three year old minor girl by one Mohd. Azizul. He was sentenced to rigorous imprisonment for 14 years.
The bench noted that while there was sexual assault committed on the minor and the intent to commit rape was proved before the trial court, the statements of victim's mother and the MLC raised a doubt regarding penetration.
Case Title: FIJA & ANR. v. State
Citation: 2022 LiveLaw (Del) 793
The Delhi High Court has observed that as per Mohammedan Law, a minor girl who had attained the age of puberty can marry without consent of her parents and has a right to reside with her husband even when she is less than 18 years of age.
Justice Jasmeet Singh made the observation while granting protection to a muslim couple who got married in March this year as per Muslim rites and rituals. The plea was moved by the couple seeking directions to ensure that nobody separates them.
The parents of the girl opposed the marriage and registered an FIR under sec. 363 of IPC against the husband. Subsequently sec. 376 and sec. 6 POCSO were added.
Title: X v. PRINCIPAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT GOVT OF NCT OF DELHI & ORS.
Citation: 2022 LiveLaw (Del) 898
Allowing a woman's prayer for immediate termination of the pregnancy of her minor daughter, the Delhi High Court has directed the Centre to ensure that the procedure is done at the national capital's All India Institute of Medical Science on government expenses.
The government and private hospitals had earlier refused to terminate the pregnancy since the family of the teenager was unwilling to report the case to the police.
Section 19 of the POCSO Act makes it mandatory for any person apprehending an offence under the Act is likely to be committed or has knowledge about the same, to report such incident to a Special Juvenile Police Unit or the local police. The medical practitioners also are obliged under law to file a report regarding the pregnancy.
Case Title: Court on its own motion v. State
Citation: 2022 LiveLaw (Del) 899
The Delhi High Court has observed that extracting confession from a child regarding the manner in which the offence was committed by him is unconstitutional and beyond the scope of a preliminary assessment report required to be prepared under the Juvenile Justice (Care and Protection of Children) Act, 2015.
As per Section 15(1) of the Act, a Juvenile Justice Board (JJB) is required to make a preliminary assessment regarding the juvenile's mental and physical capacity to commit an offence and the ability to understand its consequences along with the circumstances under which allegedly the offence was committed.
However, there are no guidelines as to how the Board would conduct such a preliminary assessment.
The observations have been made by a division bench of Justice Mukta Gupta and Justice Anish Dayal while dealing with a criminal reference concerning issuance of guidelines to be followed by Juvenile Justice Boards in conducting preliminary assessment to try a juvenile as an adult.
Case Title: RAJESH KUMAR v. STATE (GOVT. OF NCT OF DELHI) & ORS.
Citation: 2022 LiveLaw (Del) 917
The Delhi High Court has issued a slew of guidelines for better functioning of child care institutions in the the national capital and said it is unfortunate that the "apathy of authorities" is seeping through the cracks and hampering the development of those at a vulnerable age.
Stressing on the need for improving existing institutions to ensuring that quality standard of care is provided to children, Justice Subramonium Prasad said there is a complete lack of direction and initiative among persons manning these institutions as to how they must guide the children towards a better future
Justice Prasad made the observations and passed guidelines as well as directions in an order in a plea seeking a magisterial enquiry into an incident concerning escape of five minor girls in March last year from a children home in the city and other similar incidents reported in the past.
Case Title: Javed vs State NCT Of Delhi
Citation: 2022 LiveLaw (Del) 1134
Reiterating that a minor's consent is immaterial in the eyes of law, the Delhi High Court recently denied bail to a 23-year-old man in a POCSO case, who is accused of allegedly raping a 16-year-old minor, observing that his age and the fact that he was already married, disentitle him from getting bail.
Justice Jasmeet Singh also took note of the submission that the accused had got date of birth of the complainant changed in the Aadhaar card to show her as major.
"The conduct of the applicant of getting the date of birth changed in the Aadhar card of the complainant is a serious offence. It seems that the applicant wanted to take advantage by getting the Date of Birth on the Aadhar Card changed so that when the applicant established physical relationship with the complainant, she was not a minor," the court said.
Case Title: Umesh v. State (and other connected matters)
Citation: 2022 LiveLaw (Del) 1193
Directing Delhi State Legal Services Authority (DSLSA) to move applications on behalf of the victims of sexual offences for compensation in the cases registered between 2012 to 2017, the Delhi High Court has clarified that there will be no requirement to file a separate application for condonation of delay to seek compensation in such cases.
Observing that since no limitation for filing an application for compensation is provided under Section 357(A) of the Cr.PC or Section 33 of the POCSO Act, such a provision under the Part-II of the Delhi Victims' Compensation Scheme (DVCS)-2018 cannot be used or invoked in a hyper- technical manner to defeat the rights of the victim for whose assistance and support the entire Scheme has been formulated.
Case Title: STATE (GOVT OF NCT OF DELHI) v. Pappu
Citation: 2022 LiveLaw (Del) 972
More than 7 years after he was released on probation — even though he had spent just nine months in jail, the Delhi High Court has sentenced the man to five years rigorous imprisonment for sexually assaulting a four-year-old minor victim.
The man was convicted for the offences under Section 363 (Punishment for kidnapping) of Indian Penal Code, 1860 and Section 10 (Punishment for aggravated sexual assault) of Protection of Children from Sexual Offences (POCSO) Act in 2015.
However, instead of sentencing him to imprisonment, the trial court on 10.02.2015 gave the convict the benefit of probation and released him for the period already undergone in custody. As per the nominal roll, he had undergone 9 months and 26 days in jail on the day of release.
Case Title: AK vs STATE GOVT OF NCT OF DELHI AND ANR
Citation: 2022 LiveLaw (Del) 1077
The Delhi High Court has said that the intention of The Protection Of Children From Sexual Offences (POCSO) Act was to protect the children from sexual abuse and not criminalise consensual romantic relationships of young adults.
Justice Jasmeet Singh said the factum of a consensual relationship borne out of love should be of consideration while granting bail.
51. POCSO Act | Sexual Harassment Of A Child Is A Cognizable And Non-Bailable Offence: Delhi High Court
Case Title: R.K. TARUN v. UNION OF INDIA & ORS.
Citation: 2022 LiveLaw (Del) 1117
The Delhi High Court has ruled that sexual harassment of a child, which is punishable under Section 12 of Protection of Children from Sexual Offences (POCSO) Act, 2012, is a cognizable and non-bailable offence.
A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad said that the offence would fall within the scope of the second category of Part II of Schedule I of the Code of Criminal Procedure.
The said category states that if the offence is punishable with imprisonment of three years and upwards but not more than seven years, then it will be a cognizable and non-bailable offence and will be triable by a judicial magistrate of first class.
Case Title: State Of Gujarat V/S Hasmukhbhai @Harshadbhai Dahyabhai Makwana
Citation: 2022 LiveLaw (Guj) 266
The Gujarat High Court has dismissed the appeal of the StateGovernment challenging the acquittal of a person accused under the POCSO Act, citing lack of evidence. A bench of Justice SH Vora and JusticeRajendran Sareen observed:
"Here in this case it is to be noted that on one side the complainant has alleged against the respondent accused regarding sexual assault upon her victim daughter and merely after a span of 3 to 4 days she has alleged against her own husband regarding sexual assault upon her victim daughter. As such, two contradictory versions have been stated by the complainant within a span of 4 days against two persons and both the allegations are based on suspicion and doubt, one against the present respondent accused and another against her husband. As such, mere suspicion and doubt cannot be considered to be cogent and convincing proof to prove the allegations."
Case Title: Salimbhai Ibrahimbhai Mir V/S State OfGujarat
Citation: 2022 LiveLaw (Guj) 316
The Gujarat High Court has granted anticipatory bail to a62-year-old, accused of sexuall assaulting a 17 years old after intoxicatingher.
The man was booked under Sections 363, 366 and 376 IPC andSections 4, 6 and 8 of the POCSO Act.
While granting relief, the High Court took into account several factors such as improvement in Prosecutrix's version, subsequent conduct of the accused, etc.
Case Title: State Of Gujarat V/S Pratap Prabhuram Devasi
Citation: 2022 LiveLaw (Guj) 346
The Gujarat High Court has upheld the acquittal of an accused under the POCSO Act on the ground that the victim's allegations were unreliable and contained several omissions and contradictions.
While dismissing the State's appeal, a bench of JusticeSH Vora and Justice Rajendra Sareen noted that at the time of alleged incident, both brothers of the prosecutrix were at home but, she did not shout for help. "Not only that, she did not disclose to any of her relatives, who came at her home despite she was asked."
Case Title: Nihar Ranjitbhai Barad v. State of Gujarat
Citation: 2022 LiveLaw (Guj) 414
The Gujarat High Court, while refusing bail to a teacheraccused of committing aggravated sexual assault on his student aged 12 years,invoked a Sanskrit verse and highlighted the role and impact of a 'Guru'in the life of his/her 'Disciple'.
Justice Samir J. Dave said:
"The accused is not a layman, but a teacher. The only career that influences other professions is teaching. It has the power to influence young people's future for the benefit of future generations. The teacher is expected to act as a protector. Such heinous acts would cast a lifelong psychological and emotional impact on the victim."
Case title - Rajesh Kumar v. State of Himachal Pradesh
Citation: 2022 LiveLaw (HP) 8
While upholding the conviction of a man under the POCSO Act for sexually assaulting a 12-year-old girl, the Himachal Pradesh High Court on Tuesday observed that it is not necessary that every bite, that too of a child of 12 years old who is trying to rescue herself from the clutches of 37 years old person, would cause injury, abrasion or teeth marks on the body of the accused.
Under these circumstances, the Bench of Justice Vivek Singh Thakur held that the absence of external injury, abrasion of teeth marks on the body of the accused would be of no consequence and the same can't be the basis of acquittal of the accused.
57. POCSO Act Does Not Impose Any Special Prohibition On Grant Of Bail: Himachal Pradesh High Court
Case Title : PRATAP v STATE OF HIMACHAL PRADESH
Citation: 2022 LiveLaw (HP) 23
The Himachal Pradesh High Court recently observed that the POCSO Act, which punishes sexual interactions with minors, does not impose any special prohibition for grant of bail.
Justice Satyen Vaidya remarked:
"POCSO Act does not impose any special prohibition for grant of bail in offence(s) committed under the Act. Rather, Section 31 thereof makes provisions of Code of Criminal Procedure including provisions as to bail and bonds applicable to the proceedings therein."
Case title - State of Himachal Pradesh v. Shiv Lal
Case Citation: 2022 LiveLaw (HP) 32
The Himachal Pradesh High Court recently issued certain directions to the Special POCSO Courts so as to ensure that the identity of the child victim shall not be disclosed, at any time, during the course of investigation or trial.
The bench of Justice Tarlok Singh Chauhan and Justice Virender Singh issued these directions while dealing with an appeal preferred by the state government against the acquittal of an accused under Sections 363, 366, 376 of the Indian Penal Code and Section 4 of the POCSO Act.
Case title - Mubarak Ali Wani v. Union Territory through Police Station
Case Citation: 2022 LiveLaw (JKL) 10
The Jammu and Kashmir and Ladakh High Court has observed that presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) comes into play even at the pre-trial stage
Court, while dismissing the instant bail plea, remarked thus:
"Perusal of the record tends to show that there is material on record prima-faciesuggesting involvement of the petitioner in the alleged offences and having regard to the principles and propositions of law laid down by the Apex court on the subject of bail as noticed above, particularly keeping in view the nature of accusation, severity of punishment so on and so forth, the petitioner is held not entitled to bail at this stage."
Case Title : Naik Bibhu Prasad v Union of India and others
Citation : 2022 LiveLaw (JKL) 42
The High Court of Jammu and Kashmir and Ladakh observed that there is no provision in the POCSO Act that bars the jurisdiction of Summary General Court Martial (SGCM) to try the offences mentioned thereunder.
Judge Rajnesh Oswal observed that
"There is no provision in the Act of 2012 that bars the jurisdiction of SGCM to try the offences under the Act of 2012. Rather section 42-A of Act of 2012 provides that the provisions of this Act shall be in addition to and not in derogation of provisions of any other law for the time being in force and in case of any inconsistency only, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of inconsistency.
Case Title: Ishfaq Ahmad Khan v. State of J&K & Ors.
Citation: 2022 LiveLaw (JKL) 62
A bench comprising Justice M A chaudhary observed repeated sexual activity on a 9 year old child is not possible without any injury in the vaginal /genital area.
The Court also noted that though accused could be held guilty for the commission of offence of rape based on the solitary evidence of the prosecutrix, however the same must inspire confidence and should appear to be absolutely trustworthy, unblemished and should be of sterling quality.
Case title - Afan Ansari vs. The State of Jharkhand and another [W.P. (Cr.) No. 536 of 2022]
Case Citation: 2022 LiveLaw (Jha) 97
The Jharkhand High Court has observed that the order to conduct DNA Tests cannot be passed as a matter of course as such a direction may encroach privacy and physical autonomy of a person.
With this, the bench of Justice Sanjay Kumar Dwivedi upheld an order of the Special Judge, POCSO, Ranchi rejecting the plea of the man, facing rape charges under the POCSO Act, seeking a direction to conduct his own and the child's DNA examination.
Case Title: Bibi Ayesha Khanum v. Union Of India Case No: WritPetition No.2318 OF 2022
Citation: 2022 Livelaw (Kar) 59
The Karnataka High Court recently issued directions for the effective implementation of the Protection of Children From Sexual Offences Act 2012, and the Protection of Children from Sexual Offences Rules, 2020, particularly incases where the accused were to move the Court for grant of bail. A division bench of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj disposing of a public interest litigation filed by a mother of a survivor, said,"None can have any doubt that offences under the POCSO Act are heinous in nature and are more often than not committed by depraved persons."
64. POCSO Act | ProsecutionCan Cross Examine The Victim On Her Turning Hostile : Karnataka High Court
Case Title: State Of Karnataka v. Somanna Case No:. CRIMINALPETITION No.8167/2020
Citation: 2022 LiveLaw (Kar) 86
The Karnataka High Court has said that under the Protection ofChildren from Sexual Offences Act, 2012, the prosecution can cross examine the victim on her turning hostile.
A single judge bench of Justice M. Nagaprasanna said, "In terms of sub-section (2) of Section 33 of the POCSO Act, the Special PublicProsecutor or as the case would be, the counsel appearing for the accused shall, while recording examination-in-chief, cross-examination or re-examination of the child communicates the questions to be put to the child to the Special Court which shall in turn put those questions to the child.Therefore, the victim is permitted to be cross-examined under the POCSO Act itself on her turning hostile which would also cover the situation under sub-section (2) of Section 33 of the POCSO Act."
Case Title: Hrishikesh Sahoo V State Of Karnataka Case No: WritPetition No.48367 Of 2018
Citation: 2022 Livelaw (Kar) 89
The Karnataka High Court has said that the trial against the husband accused of rape and charged under section 376 of the Indian Penal Code and also of sexually assaulting his daughter and charged under sections of theProtection of Children from Sexual Offences Act can be held before the Special POCSO Court. While refusing to quash the charges under Section 376 IPC against the husband ,a single judge bench of Justice M Nagaprasanna said , "The designated Court hearing cases relating to offences under the POCSO Act can try the offences under the IPC as well, in the facts of the case."
Case Title: THE STATEOF KARNATAKA v. SHANKAR URF SHANKRAPPA S/O RAMPPA HUBBALLI Case No: CRL.A.NO.100242/2018,
Citation: 2022 LiveLaw(Kar) 143
The Karnataka High Court recently increased the sentence of imprisonment from seven years to ten years, imposed on an accused convicted for raping a minor girl and charged under sections of the Protection of Children From Sexual Offences (POCSO) Act.
Case Title: MAHAMMADALI AKBAR @ ALI UMAR v State of Karnataka
Case No: CRIMINALPETITION No.4449 OF 2022
Citation: 2022 LiveLaw(Kar) 201
The Karnataka High Court has held that on the child attaining 18years of age, the rigor under Section 33(5) of the Protection of Children fromSexual Offences Act, 2012 Act gets diluted and sequentially, will not become abar for seeking recalling and further cross-examination of the victim underSection 311 of the CrPC on an application made by the accused.
Case Title:PRABHUNAIKA K.T v. STATE OF KARNATAKA
Case No: CRIMINALPETITION No.2015 OF 2022
Citation: 2022 LiveLaw(Kar) 242
The Karnataka High Court has observed that the 'Doctrine of Sameness' is not applicable if cases against the accused registered under theProtection of Children from Sexual Offences Act, are filed at different periods of time by different complainants.
Case Title: THAHSEEN BEGUM @ TASI v STATE OF KARNATAKA
Case No: WRIT PETITION NO. 12097 OF 2022
Citation: 2022 LiveLaw (Kar) 311
The Karnataka High Court has refused to quash a case of sexual harassment registered against a school teacher under the provisions of the Protection of Children from Sexual Offences Act for allegedly beating a 5-year-old student and removing her pants, revealing the body of the child as a measure of punishment.
Case Title: PERIYASWAMY M v. STATE OF KARNATAKA
Case No: CRIMINAL PETITION NO. 6288 OF 2022
Citation: 2022 LiveLaw (Kar) 319
In connection with a trial under the POCSO Act, the Karnataka High Court has said that an application made by the accused under Section 311 of the CrPC for summoning of material witnesses should be ordinarily permitted unless the Court comes to a conclusion that it is a ruse to drag the proceedings or permitting it, would become an abuse of the process of the law.
Case Title: AJ v. State of Karnataka
Citation: 2022 LiveLaw (Kar) 355
The Karnataka High Court on Friday allowed a petition filed by a minor boy and set aside the investigation initiated against him under sections of the Protection of Children from Sexual Offences Act (POCSO) for allegedly sexually assaulting a minor girl, following a mutual settlement having arrived at between the parties.
72. Karnataka High Court Quashes POCSO Case Against Muslim Man For Impregnating Minor Wife
Case Title: MOHAMMAD WASEEM AHAMAD & Others v. 1 STATE BY CHANDRA LAYOUT POLICE STATION.
Case No: CRIMINAL PETITION NO.5917 OF 2022
Citation: 2022 LiveLaw (Kar) 436
The Karnataka High Court has quashed the POCSO case registered against a Muslim man for impregnating his minor wife. The matter was put to rest after a settlement between the accused and the victim, who was married to him as per the Mohammedan Law.
The order was passed by Justice K.Natarajan on 10th October, two days before another single bench of the High Court declared that POCSO Act overrides personal law and thus, the age for involving in sexual activities is 18 years.
73. Teenage Relationships & POCSO: Karnataka HC Asks Law Commission To Rethink Age Of Consent For Sex
Citation: 2022 LiveLaw (Kar) 443
In a significant observation, the Karnataka High Court has said that in view of the ground realities, it is imperative for the Law Commission to rethink on the age of consent under the POCSO Act.
Case Title: X v. State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 239
The Kerala High Court on Monday issued a set of suggestions for the State to consider to assist survivors of child abuse or sexual violence, while particularly emphasising the need to take steps to publicize the Toll-Free Number '112' as an Emergency Response Support System. Justice Devan Ramachandran reiterated that the growing number of cases of hapless victims being driven to stages of despondency bears testimony to the suspicion that the measures currently in place are not being implemented properly.
Case Title: Anoop v State of Kerala & Ors.
Citation: 2022 LiveLaw (Ker) 271
The Court expressed its concerns over adolescents being unaware of the consequences of having sexual relationships with each other, even if they are consensual, under the Protection of Children from Sexual Offences (POCSO) Act and the amended Section 376 of IPC. Justice Bechu Kurian Thomas was adjudicating upon a bail application when he commented on the alarming rise in the number of sexual offences being committed against school children, most of them being cases where teenagers indulged in sexual relationships, oblivious to the severe consequences under the POCSO Act.
Case Title: Shiju Joy A v. Nisha and connected cases
Citation: 2022 LiveLaw (Ker) 311
The Kerala High Court has suggested introducing child-friendly rooms in all Family Courts in the State after finding that they were operating with inadequate infrastructure and facilities. The Court thereby directed the Registrar of the District Judiciary to submit a report on the number of POCSO Courts functioning in the near vicinity of all Family Courts and to explore the possibility of dedicating a separate room in all the Family Courts. A Division Bench of Justice A Muhamed Mustaque and Justice C.S Dias observed that the congested and overcrowded premises often scar young children who are forced to visit the courts with an averse idea of the justice delivery system in the country.
Case Title: X v. Union of India & Ors.
Citation: 2022 LiveLaw (Ker) 368
The Kerala High Court on Thursday expressed its concerns over the glaring absence of adequate sex education in schools amid the rising number of child pregnancies, which are, unfortunately, often a result of sexual abuse by close relatives. Justice V.G. Arun thereby asked the authorities to reconsider the sex education and safe use of the internet and social media being imparted at the schools in the State.
Case Title: XXXX v. State of Kerala and others
Citation: 2022 LiveLaw (Ker) 379
The Kerala High Court while allowing a pre-arrest bail application, observed that in matters of alleged sexual offences, especially against minor victims, the courts must be sensitive to the plight of the victims; however, that does not mean that the allegations ought to be accepted as the gospel truth in every case. Justice Bechu Kurian Thomas cautioned the courts about false allegations to achieve ulterior objectives and observed that tutoring a witness by the parents even while considering an application for bail cannot be ignored.
Case Title: Anoop v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 452
The Kerala High Court on Friday directed the State Government and the CBSE to issue necessary orders making it mandatory for every school in the state under their control to include a "Prevention-Oriented Program on Sexual Abuse" in the curriculum.
Justice Bechu Kurian Thomas expressing his anguish at the alarming rise in the number of sexual offences committed on school children and noticing that, in many instances, the perpetrators themselves were students, observed that the voice of the victims of sexual abuse should not be suppressed, and it is only through education that the victim can be empowered to speak out.
Case Title: Jollyamma V. Thomas v. State of Kerala & Ors.
Citation: 2022 LiveLaw(Ker) 544
The Kerala High Court on Wednesday observed that there is no ban on the continuation of disciplinary proceedings by Educational Authorities against teachers who are subject to criminal prosecution for offence of child harassment or offences under the Protection of Children from Sexual Offenses Act.
The Court noted that as soon as a teacher is arrested for a crime, they are suspended from their service. However, in the majority of instances, educational authorities do not complete the disciplinary processes under a mistaken impression that they cannot proceed against the teacher until the Criminal Court has rendered a decision in the pending case.
Case Title: Renoj R.S. v. State of Kerala & Anr
Citation: 2022 LiveLaw (Ker) 546
The Kerala High Court has held that the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) prevails over the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). Thus, when offences under both the Acts have been alleged, the accused would be entitled to avail the procedure contemplated under the former for bail.
The Court found that by virtue of Section 31 of the POCSO Act which makes the provisions of the Code of Criminal Procedure (Cr.P.C.) applicable, the accused person could approach the High Court under Section 439 Cr.P.C.
Justice Bechu Kurian Thomas, while holding so, observed that,"...it is pertinent to notice that despite the SC/ST Act being amended in 2015 and 2018, the overriding effect of POCSO Act, in the event of inconsistency, has not been nullified or interfered with by the Parliament. Thus, it is evident that the legislature intended to give supremacy to the POCSO Act, even over the SC/ST Act, in the event of any inconsistency".
82. [POCSO Act] Unilateral Bail Cancellation Without Hearing Accused Not Legal: Kerala High Court
Case Title: Muhammed Yasin v. Station House Officer & Anr.
Citation: 2022 LiveLaw (Ker) 566
The Kerala High Court on Wednesday reiterated that while hearing an application for cancellation of bail, even of an accused booked under the POCSO Act, an opportunity of hearing must be accorded to the accused. It condemned the action of a local Fast Track Court which cancelled the bail of the Petitioner herein, an accused under Sections 354A(I)(i) IPC and Sections 9 and 10 of the Protection of Children from Sexual Offences Act, 2012, with an opportunity of hearing. The bail cancellation was sought on the ground that the accused-Petitioner had contacted the victim child and violated other bail conditions.
Justice Kauser Edappagath, while setting aside the bail cancellation order, observed that, "When the cancellation of bail is sought either on the ground of post conduct of the accused like violation of the conditions of the bail or on the ground of the occurrence of supervening circumstances, the court must issue notice to the accused to explain why the bail granted to him should not be cancelled. He should also be given a fair opportunity of hearing. The order cancelling the bail unilaterally without hearing the accused cannot withstand legally".
Case Title: Khaledur Rahman v. State of Kerala & Anr.
Citation: 2022 LiveLaw (Ker) 600
The Kerala High Court has ruled that a marriage between Muslims under personal law is not excluded from the sweep of the POCSO Act.
Justice Bechu Kurain Thomas said if one of the parties to the marriage is a minor, irrespective of the validity or otherwise of the marriage, offences under the POCSO Act will apply.
The court disagreed with the view taken by the Punjab and Haryana High Court in Javed v. State of Haryana (2022 LiveLaw (PH) 276); by Delhi High Court in Fija and Another v. State Govt. of NCT of Delhi and Others (2022 LiveLaw (Del) 793) and by Karnataka High Court in Mohammad Waseem Ahamad v. State (2022 LiveLaw (Kar) 436). "With respect to the learned Judges, I am unable to agree to the proposition laid down in those decisions that an offence under the POCSO Act will not get attracted against a Muslim marrying a minor," Justice Thomas said.
84. Non-Reporting Of Child Sexual Abuse Is A Bailable Offence Under POCSO Act: Kerala High Court
Citation: XXXXX v. State of Kerala
Citation: 2022 LiveLaw(Ker) 614
The Kerala High Court on Thursday held that the offence punishable under Section 21 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is a bailable offence. Section 21 makes the failure to report an offence under POCSO Act punishable with imprisonment upto six months or if the person is in charge of an institution or company, imprisonment can extend upto one year.
Justice Bechu Kurian Thomas said if the statute does not declare a particular offence as bailable or non-bailable, reference has to be made to the schedule attached to the CrPC.
The court noted Section 21 of POCSO Act makes contravention of Section 19 and Section 20 of the Act punishable but by itself does not declare the offence to be a non-bailable offence."A reading of the Schedule to Cr.P.C. extracted above evidences that if, under other laws, the offence is punishable with imprisonment for less than three years or with fine only, the offence is bailable and non-cognizable. It is thus evident that section 21 of the POCSO Act, which provides for a punishment of six months or a maximum of one year, is a bailable offence," said the court.
Case Title: Vineeth v. State of Kerala
Citation: 2022 LiveLaw (Ker) 656
The Kerala High Court on Monday observed that the statutory bar imposed on Special Courts by Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act') to ensure that a child is not repeatedly called to to testify in the court is not absolute.
Justice Kauser Edappagath observed, that the bar under Section 33(5) of POCSO Act is not absolute. In appropriate cases, if it is necessary for the just decision of the case, of course the child witness can be recalled.
Case title - Hani Sharma vs. State of M.P. & Anr.
Citation: 2022 LiveLaw (MP) 5
"Every girl being a citizen of India has a right to live her life peacefully and without any threat to her dignity and life," observed the Madhya Pradesh High Court as it refused to quash a POCSO Case based on a compromise between the 17-year-old victim and a man, accused of stalking and harassing her for two years.
The Bench of Justice G. S. Ahluwalia noted that it was a case where the applicant-accused was continuously stalking and harassing the victim and caught hold of her hand in a public place when she had come to her house for celebrating Deewali and therefore, refused to quash the case.
Case Title: Shobit Nigam v. The State of Madhya Pradesh
Citation: 2022 LiveLaw (MP) 36
The High Court of Madhya Pradesh recently allowed a bail application of the Applicant, accused under the provisions of IPC and POCSO Act after considering the categorical statement made by the Prosecutrix, whereby she conveyed that she was a well-educated, grown up with a sound mind and that she developed physical relation with the Applicant by her own wish and was also ready to marry him.
Justice Sanjay Dwivedi was essentially dealing with a bail application moved by the Applicant, accused for offences U/S 363, 366, 376 (3), 376(2)(n) IPC and U/S 5(L), 6 POCSO Act. He was in custody since October last year.
Case Title: Hiralal Dhurve Vs. The State of Madhya Pradesh and others
Citation: 2022 LiveLaw (MP) 81
The Madhya Pradesh High Court refused to interfere with the charge framed against an Advocate under the POCSO Act for 'ill-advising' the accused and Prosecutrix in a rape case, suggesting them 'not to disclose true facts to the police'.
Justice Sanjay Dwivedi was dealing with a criminal revision preferred by the Applicant aggrieved by order of the trial court, whereby he was charged for offence punishable under Section 19 (Reporting of offences) and 21 (Obligation of media, studio and photographic facilities to report cases) POCSO Act.
89. Madhya Pradesh High Court Relies On 'Two Fingers Test' To Cancel Bail Of Rape Accused
Case Title : FATHER OF PROSECUTRIX-X v STATE OF MADHYA PRADESH
Citation: 2022 LiveLaw (MP) 115
The Madhya Pradesh High Court recently set aside the bail granted to rape accused under the provisions of POCSO Act, observing that although the medical report of the Prosecutrix did not mention any definite opinion of rape, it pointed out that her hymen was ruptured and two fingers were easily going in her vagina, which prima facie corroborated the fact that she was sexually abused.
Dealing with the application for cancellation of bail under Section 439(2) CrPC moved by the father of the Prosecutrix, Justice R.K. Dubey observ
Though, in the medical examination report of the prosecutrix, it is mentioned that no definite opinion can be given regarding rape but apart from that it is also mentioned that the hymen was old torn and two fingers were easily going in the vagina which prima facie corroborates the fact that she was sexually abused.
Title: State of Madhya Pradesh v. Golu
Case Citation: 2022 LiveLaw (MP) 142
The High Court of Madhya Pradesh recently directed action against a lower court judge for not considering a crucial medical evidence of DNA report while acquitting the accused in a POCSO case. The Court observed that despite the medical report being brought on record, the same did not find mention in the impugned judgment passed by the respective trial court judge.
The division bench of Justice Sujoy Paul and Justice D.D. Bansal was hearing the application for grant of leave to appeal moved by the State against the impugned judgment passed by the lower court, whereby the accused was acquitted of charges punishable U/S 376-(A) (B), 377 IPC, U/S 6 POCSO Act and U/S 3(2)(5) of SC/ST (Prevention of Atrocities) Act for allegedly raping the Prosecutrix who, at the time of the incident, was 10 years old.
Case Title: S. Ganeshan v. State Represented by Inspector of Police
Citation: 2022 LiveLaw (Mad) 116
Madras High Court has held that the bar under Section 33(5) of the POCSO Act against recalling a child (minor victim) is not applicable after such victim attains majority.
Justice A.D Jagdish Chandra, while allowing the petitioner-accused's plea held that the victim is now 21 years old and she will not fall within the definition of "child" so as to invoke Section 33(5) of the POCSO Act, 2012. Section 33(5) of the Act only mandates that the child witness cannot be called repeatedly to testify in the Court.
The court also relied on decision of Apex Court in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd. (2017) and noted that it is mandatory for a court under Section 311 CrpC to recall witnesses for further cross-examination if their evidence appears to be essential for just decision of the case. the court also highlighted that the child's right under Section 33(5) of the POCSO Act has to be balanced with the right of the accused.
Case Title: Pastor Muniyandi @ Ramesh & Ors. v. State Represented by Inspector of Police
Citation: 2022 LiveLaw (Mad) 128
Madras High Court has commuted the life sentence of three accused including a pastor involved in the acts of kidnapping, marrying and sexually assaulting a Class X Student.
Justices P.N Prakash and A. A Nakkiran took note of a particular submission by A2 and A3 that they were unaware of the age of the victim and genuinely believed her to be over 18 years. The court, however, observed that though the argument appears to be 'a little convincing' at the first blush, the cross-examination of the victim has revealed that she was in a school uniform when taken to the houses of accussed.
Life imprisonment imposed on Vijayakumar-A1 under Section 6 of the POCSO Act [Punishment for aggravated penetrative sexual assault] was reduced to 14 years rigorous imprisonment, without any remission benefits. Life imprisonment imposed on Pastor Muniyandi-A2 and Joseph Raja-A3 under Section 6 R/w Section 17 of the POCSO Act was reduced to 10 years of rigorous imprisonment. The court also made it clear that the sentences imposed under IPC and Prohibition of Child Marriage Act, along with the sentence of fine and the default clause imposed by the trial Court on all the appellants will remain unaltered.
Case Title: Agavai (Name Changed) v. The State represented by Inspector of Police
Citation: 2022 LiveLaw (Mad) 192
The Madras High Court set aside the detention order passed by the Juvenile Justice Board, Thiruvallur against a 15 years old child in conflict with law, observing that the order was passed in a hasty manner without going into the genuineness of the matter.
Justice AD Jagadish Chandra also observed that a child offender should not be given punishment based on the kind of offense he/she has committed but should be given an individual treatment that is reformative in nature and which is based on his/her need, psychological and social background.
The court also opined that the parents, teachers, schools, community, and law enforcement agencies need to understand, prevent and reduce risk factors that may push children towards adopting behaviors that may harm them. The court further observed that no child is born criminal and it is his/her social factors that make them do acts against the law.
Case Title: Sankar v. State
Citation: 2022 LiveLaw (Mad) 281
Observing that the accused must be given an opportunity to place his defence, the Madras High court recently allowed a POCSO accused's plea for recall of the victim for cross examination.
Justice V.Sivagnanam explained that Section 33 (5) of the Act was introduced only to ensure that the child should not be repeatedly called to the Court for examining as it would affect the mind of the child. In the present case, the victim was no longer a child and had attained majority. Hence, the victim could be called for cross examination to give a last chance to the accused to give his defence.
Case Title: K Vijayakumar v. State
Citation: 2022 LiveLaw (Mad) 309
Coming to the aid of a 13 years old rape victim, the Madras High Court recently allowed termination of her 28 weeks + 3 days old pregnancy on a plea by the girl's father.
Justice Abdul Quddhose observed that even though the pregnancy had crossed the legal period of 20 weeks, it had to be noted that she was a small statured girl and was not mentally or physically strong to withstand the pregnancy. Apart from this, the court also noted that the girl's father, the Petitioner herein, was an agricultural labourer and if the pregnancy was allowed to continue, not only the victim girl but the whole family would suffer. The court also noted that it had wider power under Article 226 of the Constitution than what is prescribed under section 3(2) of the Medical Termination of Pregnancy Act.
Case Title: Azhagan @ Prabhu v. State
Citation: 2022 LiveLaw (Mad) 337
The Madras High Court recently modified a judgment of conviction under the Protection of Children from Sexual Offences (POCSO) Act to one under the IPC after observing that the prosecution had failed to establish the age of the victim at the time of the offence.
Justice Bharatha Chakravarthy opined that when the prosecution had not produced the Transfer certificate of the victim and when the victim had categorically deposed before the court that her date of birth was 27.07.1995 not making her a minor at the time of the offence, her evidence should be taken as her correct age and therefore altered the charges.
Case Title: Narayanan v. State
Citation: 2022 LiveLaw (Mad) 370
While confirming the life imprisonment of a man convicted for sexually abusing five children, the Madras High Court emphasized that the mere absence of physical injury does not rule out the sexual acts.
Justice PN Prakash and Justice Hemalatha held sexual activity with a child to be a criminal/ immoral act and emphasizing on making the society safe for children
Case Title: Kanthan v State and others
Citation: 2022 LiveLaw (Mad) 390
The Madras High Court recently remarked that information technology today is posing a great challenge in upbringing of teenagers, whose minds are often affected by easily accessible pornography, misleading them and making them indulge in sexual offences without understanding its consequences.
The Madurai bench of Justice J Nisha Banu and Justice N Anand Venkatesh emphasized that whenever these teenagers are arrested, efforts should be made to attend to their mental perversity.
Case Title: A Veronica Mary v The State of Tamil Nadu and others
Citation: 2022 LiveLaw (Mad) 487
Observing that sexual harassment in educational institutions continues to remain inadequately addressed, the Madras High Court recently issued directions to the State government for proper implementation of the law and policies framed against sexual abuse of children.
The division bench of Justice R Mahadevan and Justice Sathya Narayana Prasad directed the school education department to coordinate with the State Commission for Protection Of Child Rights to ensure that an Internal Complaints Committee is constituted in the schools as required under under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The court also said the schools may frame anti-sexual harassment policy and distribute it among students and teachers. Importantly, the court said it needs to be ensured that every schools has reporting and redressal mechanism in place.
Case Title: Ravi @ Virumandi v State and another
Citation: 2022 LiveLaw (Mad) 501
Upholding the conviction and 10 years sentence of a man in a POCSO case, the Madras High Court recently said that it is "eagerly" waiting for an amendment in the law to appropriately deal with cases involving relationships of adolescents.
Justice P Velmurugan made the comment while upholding the conviction and sentence of one Ravi who was accused of kidnapping and forcibly marrying a 17 year old girl in May 2014. He was convicted by the trial court under Sections 366 of IPC, Section 5(l) of the POCSO Act and Section 3(1)(w)(i) r/w 3(2)(Va) of SC/ST Act and sentenced to rigorous imprisonment for a period of ten years.
Case title - Sandam Bhogen Meetei v. State of Manipur
Case Citation: 2022 LiveLaw (Man) 9
"...under-trial prisoner's right to life does not diminish even a wee bit when in jail as an accused/convict for an offence and such person's health concerns have to be taken care by the State and if not done so, by the judiciary," the Manipur High Court recently observed as it released a POCSO Accused on bail on medical grounds.
The bench of Justice M. V. Muralidaran further emphasized that the right to dignity of an accused does not dry out with the Judges, rather, it subsists beyond the prison gates and operates until his last breath.
Case title - Shri. Skhemborlang Suting & Anr. v. State of Meghalaya & Anr.
Citation: 2022 LiveLaw (Meg) 11
The Meghalaya High Court recently quashed FIR and criminal proceedings in a POCSO case registered against a man as it noted that the accused man and victim-wife were living with each other as husband and wife and out of the said union, a child was born.
The Bench of Justice W. Diengdoh however stressed that such cases of consensual or voluntary sexual intercourse with an underage girl by an adult man while they are living as husband and where the wife gives birth to a child, are complex.
Case Title: Morningstar Nongsiej v. State of Meghalaya
Citation: 2022 LiveLaw (Meg) 12
The Meghalaya High Court has recently held that the expression "came on top of me" must be construed as a euphemism for commission of 'penetrative sexual assault'. A Division Bench Chief Justice Sanjib Banerjee and Justice W. Diengdoh observed,
"The later statement of the victim recorded in course of her deposition at the trial must be seen in the milieu of how a woman in this country, particularly a girl child, would be intimidated in the foreign and suffocating atmosphere of a court and in the presence of rank strangers to describe how she had been violated. The expression, "came on top of me" must be seen to be a euphemism for the offender having violated her in the sense of having committed penetrative sexual assault."
Case title - Sparding Nongbri Vs. State of Meghalaya
Case Citation: 2022 LiveLaw (Meg) 13
The Meghalaya High Court upheld the conviction of a man for raping his minor stepdaughter as it noted that the confession of the accused as recorded in his statement under Section 164 CrPC had completely corroborated what the victim had to say.
With this, the Bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh also held that if the confessional statement fills up any lacuna in the prosecution case, the court can find the basis of conviction in such statement while relying on the overall evidence to satisfy itself that the confessional statement was relevant.
Case: Mohammad Saimullah vs . State Of Meghalaya
Citation: 2022 LiveLaw (Meg) 18
The Meghalaya High Court observed that the act of holding the hands of a child and saying that her hands are beautiful cannot be considered an act of sexual assault under POCSO Act.
"It is to be noted that the place of occurrence is located near the residence of the alleged victim girl. Near the place, a group of persons were playing cards and while she was playing the petitioner asked her for a glass of water to which she complied by bringing the said water to him. It is apparent that the place of occurrence is a public place with a number of people present and the alleged incident happened in broad daylight. The fact that the petitioner had held and commented on the hands of the alleged victim girl which contact is probably of a few seconds, the same cannot be read to imply that there is sexual intent on the part of the petitioner. At best, a non-sexual purpose of the contact can be presumed."
Case title - Pyniarlang Kurkalang & Anr. v. State of Meghalaya & Anr. [Crl.Petn. No. 28 of 2022]
Citation: 2022 LiveLaw (Meg) 26
The Meghalaya High Court on Tuesday requested the Meghalaya State Government to conduct an extensive awareness program to highlight the aspects of the danger of underaged marriage or cohabitation to avoid unnecessary conflict with the relevant provisions of law.
The bench of Justice W. Diengdoh ordered this while quashing a POCSO Case before the Court of Special Judge, (POCSO), Shillong as it noted the accused and the victim were living with each other as husband and wife with their baby.
Case Title: Shri. Kwantar Khongsit & Ors. v. State of Meghalaya & Ors.
Citation: 2022 LiveLaw (Meg) 28
The Meghalaya High Court, on Wednesday, quashed and set aside charges levelled against a man under the provisions of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') for allegedly having 'consensual sex' with his minor wife.
A Single Judge Bench of Justice W. Diengdoh took note of the peculiar circumstances of the case and observed,
"…in the event it is apparent that a young couple are in a relationship where love is the deciding factor even to the extent that it has culminated into a marriage relationship, it may be the case that in such a relationship even if the girl involved is legally a minor, if she has the capacity to procreate and her age is perhaps ranging from about 16 to 17 years and more but below 18 years, it would not shock the conscience of this Court if hypothetically speaking such a girl enters into a marriage relationship on her own free will, as oppose to a child of about 12 or 13 years voluntarily entering into a marriage relationship."
Case Title : Shri Anwar Hussain Sheikh Vs. State of Meghalaya & Anr.
Citation :2022 LiveLaw (Meg) 30
The Meghalaya High Court recently observed that it is incumbent upon the Court, hearing a POCSO case, to be certain of the age of the victim before proceeding with the matter.
The observation came from Justice W. Diengdoh:
"An offence against a child has to be tried by the Special Court. However, it is incumbent upon the Court to be certain right from the inception of a case that the case before it involves a child by the definition found in the said POCSO Act. In this context, the age determination is very vital before further proceedings are initiated."
Case Title: Shri. Adelbert Marbaniang & Anr. Vs. State of Meghalaya & Ors.
Citation :2022 LiveLaw (Meg) 32
The Meghalaya High Court, while quashing a POCSO FIR against a minor's partner, reiterated that rigors of the Act may not be applied to break down a happy family relationship. Such cases must be decided by taking a sympathetic view towards the accused, who is in a consensual relationship with the minor, in the instant case almost 18 years of age.
The observation came from Justice W. Diengdoh while disposing of the plea preferred by the POCSO accused and his child-bearing minor partner. The couple had been living together like husband and wife.
Case Title: Shri. Jeffrey Diengdoh & Anr. v. State of Meghalaya & Ors.
Citation :2022 LiveLaw (Meg) 33
The Meghalaya High Court has quashed charges under the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') against a husband for having 'consensual' sexual relationship with his minor wife. A Single Bench of Justice W. Diengdoh observed,
"Notwithstanding the fact that a proper criminal proceeding cannot be cut short without very strong and compelling circumstances which strikes at the very root of personal liberty, particularly that of the accused, the peculiar facts and circumstances has to bear testimony to move the hand of the court especially in exercise of its inherent powers."
Case title - Swill Lhuid v. State of Meghalaya & ors [Crl.A.No.17/2022]
Case citation: 2022 LiveLaw (Meg) 43
The Meghalaya High Court has observed that for the purpose of the POCSO Act, 'Aggravated Penetrative sexual assault' does not require deep or complete penetration and even the slightest amount of penetration would constitute the offence.
With this, the bench of Chief Justice Sanjib Banerjee and Justice W. Diengdoh confirmed the conviction of a man under Section 5(m) of the POCSO Act who was sentenced to 15 years of rigorous imprisonment by the trial court for committing rape upon a 7.5-year-old girl.
Case title - Silvestar Khonglah & Anr. Vs. State of Meghalaya & Anr. [Crl. Petn. No. 45 of 2022]
Case Citation: 2022 LiveLaw (Meg) 44
While quashing POCSO charges against a minor's partner, the Meghalaya High Court has observed that the term 'sexual assault' as per the POCSO Act cannot be attributed to an act where there is mutual love and affection between a young couple (boyfriend and girlfriend).
The observation came from the bench of Justice W. Diengdoh while disposing of the plea preferred by the POCSO accused and the mother of the victim on mutual understanding.
113. Sexual Activity With Minor Based On "Bedrock Of Love": Meghalaya High Court Quashes POCSO Case
Case Title: Shri Manik Sunar and 2 Others v. State of Meghalaya
Citation: 2022 LiveLaw (Meg) 45
The Meghalaya High Court, while dealing with a petition filed by the petitioner-accused charged with offences under POCSO and IPC, ordered for the quashing of the offences on grounds that the alleged victim was in a consensual relationship with the accused.
The Court took note of the statement of the girl who stated that the sexual relationship was based on the bedrock of love and of the fact that the alleged victim had in fact married the petitioner-accused upon attaining majority. The single bench of Justice W. Diengdoh noted:
"In cases of this nature, since it is evident that the alleged aggrieved person has indicated that she is no longer interested in pursuing with the matter and all those who are involved are also not keen to prosecute the matter, it may perhaps be a futile exercise for the prosecution to ensure conviction of the accused under such circumstances."
Case Title: Pidika Sambaru v. State of Odisha & Anr.
Citation: 2022 LiveLaw (Ori) 21
A Single Judge Bench of Justice S.K. Panigrahi has ruled that the right of an accused to recall witnesses under Section 311 CrPC cannot be denied only because there exists a right of prosecutrix under Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 ("POCSO Act"). The said provision requires the Special Court to ensure that the child (prosecutrix) is not called repeatedly to testify in the court. While allowing the revision petition, it was held that the provisions of Section 33 laid down a general principle which must guide the trial Court and is similar to Section 309 Cr.P.C, being in the nature of laws to ensure speedy trial. However, by virtue of Sections 4 and 5 of Cr.P.C, Section 311 Cr.P.C shall prevail as no specific procedure is provided under POCSO Act for recall of a witness. Section 42A of POCSO Act clarifies that the Act is not in derogation of any other Law.
115. Patna High Court Allows Termination Of Pregnancy Of A Minor Victim Of Sexual Abuse
Case Title : Miss K v The State of Bihar
Citation: 2022 LiveLaw (Pat) 9
The Patna high Court recently allowed termination of pregnancy of a minor victim of sexual abuse.
Justice Anil Kumar Sinha observed that a plain reading of the provisions of the Medical Termination of Pregnancy Act, 1971, shows that with the consent of pregnant woman or the guardian in case of minor, the pregnancy can be terminated by two registered Medical Practitioners, where the length of pregnancy does not exceed 24 weeks.
Case Title: Pragya Prateek Shukla and another v. State of Rajasthan, Through PP
Case Citation: 2022 LiveLaw (Raj) 15
The Rajasthan High Court suspended the sentence awarded to a Faculty Member in the college and the Hostel Warden booked under Section 21 of the POCSO Act (among other offences) for their alleged failure to report a 'POCSO Case' of the hostel involving a minor girl, as it noted thus:
"Incidents are not uncommon where after deliberations, it is decided in a bonafide manner not to report such matters to the police, lest the reputation of the girl is tarnished. This aspect gains more importance because the hostel warden/higher-ups would definitely have preferred to deliberate with the parents of the girl before taking any such action."
Case Title: Suresh v. State Of Rajasthan, Through Pp
Citation: 2022 LiveLaw (Raj) 80
In a significant ruling, the Rajasthan High Court, Jaipur has issued guidelines for Test Identification Parade (TIP) in POCSO Cases.
The court ruled that special Judges of POCSO Act cases and all the District and Sessions Judges of the State shall ensure the immediate implementation of this order amongst all the judicial officers and all courts in their respective jurisdiction, which are conducting the trial of POCSO Cases
Justice Farjand Ali, while issuing the guidelines for TIP, rejected the bail application of the accused and ordered,
"This order shall be conveyed by the Registry of this Court to all learned special Judges of POCSO Act cases and all the District and Sessions Judges of the State, who shall ensure the immediate implementation of this order amongst all the judicial officers and all courts in their respective jurisdiction, which are conducting the trial of POCSO Cases."
118. Immature Act Of Uncontrolled Emotions: Rajasthan HC Quashes POCSO Case Against Minor's Lover
Case Title: Tarun Vaishnav v. State of Rajasthan and Another
Citation: 2022 LiveLaw (Raj) 257
The Rajasthan High Court has quashed the FIR registered against a 22-year old man under Section 376 of the IPC and Sections 3 and 4 of the POCSO Act for impregnating a 16-year old girl, leading to delivery of a child.
A single bench of Justice Dinesh Mehta noted that the minor and the accused were lovers and the sexual acts were consensual in nature. It observed,
"This Court cannot and does not accord any approval or sanction to the sexual act of petitioner with the prosecutrix but then, it is a hard reality that their love affair has traversed beyond the legal and moral bounds, consequence whereof has begotten a child...The mistake or blunder which otherwise constitutes an offence has been committed due to immature act and uncontrolled emotions of two persons, out of whom, one is still a minor."
Case Title: Subhash Chandra Chettri v. State of Sikkim
Citation: 2022 LiveLaw (Sik) 10
The Sikkim High Court recently held that a slight penetration without any visible injury is enough to constitute offence of rape and aggravated penetrative sexual assault under Sections 376 AB of the IPC as well as Section 5 of the POCSO Act. A Division Bench of Justices Bhaskar Raj Pradhan and Meenakshi Madan Rai noted,
"Penetration to any extent is sufficient to constitute rape under IPC and penetrative sexual assault under the POCSO Act. The victim's deposition is specific, consistent and clear that the appellant had inserted his penis into her vagina."
Case Title: Milan Kumar Rai vs State of Sikkim
Citation: 2022 LiveLaw (Sik) 13
The Sikkim High Court acquitted a man accused in a POCSO case after noticing that the victim suffered catatonic schizophrenia and thus prone to hallucinations and delusions.
"It would be difficult to conclude with absolute certainty that what the victim states in her deposition is not coloured by hallucination as she was certainly suffering from catatonic schizophrenia", the bench of Justices Meenakshi Madan Rai and Bhaskar Raj Pradhan observed in the judgment.
Case Title: Vanka Rajesh Raju v. The State of Telangana
Citation: 2022 LiveLaw (Tel) 67
The Telangana High Court reiterated that the defense that acts of physical relationship was consensual between the accused and victim girl cannot be considered where the age of the girl was below 18 years.
Stating thus, a single bench of Justice K. Surender dismissed an appeal challenging conviction under the Protection of Children from Sexual Offences Act, 2012.
The appellant was convicted for the offence under Section 5(1) r/w 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act and Section 506 (punishment for criminal intimidation) and 376 (punishment for rape) of IPC.
Case Title: Guda Mahender v. The State of Telangana
Citation: 2022 LiveLaw (Tel) 68
Telangana High Court ruled that benefit of doubt has to be extended to the accused under the POCSO Act, if the age of the victim girl cannot be proved by prosecution to be below 18 years of age.
Case Title: Mekala Shiva v. The State of Telangana
Citation: 2022 LiveLaw (Tel) 70
the Telangana High Court overturned the POCSO conviction as the age of the victim girl could be above 18 years of age on applying the margin of error to the age determined by doctor on radiological/ossification examination. Justice K. Surender relied on Jaya Mala v. Home Secretary, Government of J&K (1982), in which the Supreme Court had observed that one can take judicial notice that the margin of error in age ascertained by radiological examination is two years either side. Applying the judgment regarding margin of error, if it is accepted that he victim is 16 years of age, adding two years to it, victim would be more than 18 years.
In the said circumstances, there was no conclusive proof regarding the age of victim. Thus, the benefit of doubt was extended to the appellant as prosecution failed to prove the age of victim girl. The appeal was allowed.
Case title - Sanju Tanti v. The State of Tripura
Citation: 2022 LiveLaw (Tri) 10
The Tripura High Court recently acquitted a man booked and convicted under, inter alia, Section 8 of the POCSO Act [Punishment for sexual assault] for allegedly touching a minor's hand as the Court noted that the prosecution and the victim had said nothing about the intention of the accused to molest.
The Bench of Justice Arindam Lodh, which was hearing an appeal filed by the accused against the order of conviction passed by the Special Judge (POCSO), Khowai, Tripura, observed thus:
"After careful perusal of the record it is found that the offence under Section 8 of the POCSO Act has not been established beyond a reasonable doubt. The prosecution witnesses including the victim has not specifically stated anything that there was any intention of the accused to molest her. However, though she stated that the accused had touched her hand, in this situation, in my opinion, the ingredients of Section 8 have not been fulfilled and conviction and sentence under Section 8 of the POCSO Act stand quashed and set aside."
Case Title: Kunjabihari Nayak v. State of Odisha
Citation: 2022 LiveLaw (Ori) 153
The Orissa High Court upheld the conviction and ensuing sentence of 12 years rigorous imprisonment imposed upon a 'cook-cum-attendant' of a Primary School in the district of Phulbani, who was accused of raping three inmates of the school hostel. While expressing shock and condemnation over such an unfortunate incident, a Single Bench of Justice Sangam Kumar Sahoo observed,
"This case gives a sorry state of affairs about the maintenance and security of the Ladies' Hostels where minor girls belonging to Scheduled Caste and Scheduled Tribe Community were staying. Congested room, absence of proper security measures and poor maintenance of the hostel room came into fore while going through the case records and evidence of witnesses. It also appears that the Headmistress of the School and the Hostel Superintendent were not vigilant and acted like the 'blind vulture' for which protector turned perpetrator of the crime and acted like 'cunning cat' and spoiled the lives of the victims."
Case Title : Kulwinder Singh v. State of Punjab
Citation: 2022 LiveLaw (PH) 91
The Punjab and Haryana High Court, while dealing with a case registered under provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO), held that, for an offense of sexual assault, final report would be complete on statement of the prosecutrix and FSL report can be used only to corroborate their version.
The bench comprising Justice Suvir Sehgal held that based on the challan filed by the Investigating Agency, the Court can take cognizance of the offense.
Case Title: Dinesh Versus State of Haryana
Citation: 2022 LiveLaw (PH) 173
The Punjab and Haryana High Court recently granted regular bail to a man booked under the POCSO Act after the complainant, his wife, accused him of penetrative sexual assault in an incident that allegedly took place prior to their marriage, when she was still a minor.
The bench comprising Justice Vikas Bahl observed that no date of the alleged incident has been mentioned in the FIR and it was registered after the petitioner moved a plea for restitution of conjugal rights. Apart from that, the FIR was registered after much delay.
Case Title: Avnish Kumar Sharma @ Avinish Versus State of Haryana
Citation: 2022 LiveLaw (PH) 225
The Punjab and Haryana High Court recently acquitted a school teacher charged and sentenced under the POCSO Act, stating that it is highly improbable that a minor girl who has been sexually abused by her teacher on more than one occasion would not disclose this factum either to her parents or her teacher or any of her class fellows.
The bench comprising Justices G.S. Sandhawalia and Vikas Suri further added that the delay in lodging of the FIR has wiped out all the evidence and though conviction can be based solely on victim's testimony, the same must meet the threshold of inspiring court's confidence.
Case title - Nardeep Singh Cheema @ Navdeep Singh Cheema v. State of Punjab and others [CRM-M-2270-2020]
Case Citation: 2022 LiveLaw (PH) 257
The Punjab and Haryana High Court has observed that an offence under POCSO Act, which is a special statute, cannot be quashed on the basis of any compromise or matrimony between the accused and the prosecutrix.
The bench of Justice Suvir Sehgal also stressed that the subsequent marriage of the accused with the prosecutrix/victim would not dilute the offence under POCSO Act or under Section 376, IPC.
Case title - Chaman Lal Chimnu v. State of Haryana [CRA-D-700-DB-2010]
Citation: 2022 LiveLaw (PH) 242
The Punjab and Haryana High Court upheld the life sentence awarded to a man who had raped his own 12-year-old niece in the year 2008. Noting that the accused was the real uncle of the victim, the Court remarked thus:
"The factual matrix of this appeal is unfortunately related to a sordid and obnoxious incident, where the appellant, who is the real uncle of the victim, raped his niece, a girl child of the tender age of 12 years. The result was that the sacred relationship of uncle and niece was besmirched. Such offenders are a menace to the civilised society and have to be dealt with strictly as per law. It is an act, which is not only a blow to her supreme honour and offends her self-esteem and dignity, it degrades and humiliates the victim and where the victim is a helpless child or a minor, it leaves behind a traumatic experience. Such crime is not only a crime against a minor innocent child, rather it is a crime against the entire society."
Case Title: Roop Lal Vs. State of Punjab
Citation: 2022 LiveLaw (PH) 262
Punjab and Haryana High Court while dealing with a case of father raping minor daughter, held that the conviction for the offence under Section 376 of IPC can be based on the sole testimony of the rape victim.
The bench comprising Justice Sureshwar Thakur and Justice N.S.Shekhawat further added that there can never be more graver and heinous crime than a father committing rape on his own daughter.
Case title - Manoj Kumar v. State of Haryana [CRA-D-825-DB-2012 (O&M)]
Case Citation: 2022 LiveLaw (PH) 266
Refusing to overturn a judgment of the trial court convicting an accused of raping and murdering a 9-year-old girl, the Punjab and Haryana High Court recently observed that child rape cases are the cases of the worst form of lust for sex, where children of tender age are not even spared in the pursuit of sexual pleasure.
Stressing that there cannot be anything more obscene, diabolical, and barbaric than this, the Court further remarked thus:
"It is a crime not only against society but against the entire humanity. Many such cases are not brought to light because of the fact that social stigma is attached thereto. According to some surveys, there has been a steep rise in child rape cases. The children need more care and protection not only by the parents and guardians but also by the Courts and society at large. In such cases, the responsibility is equally there on the shoulders of the Court so as to provide proper legal protection to these minor victims. Children are the natural resources of our country and are also the country's future. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual, emotional, and financial abuse."
Case Title: Mohit v. State of Uttarakhand
Citation: 2022 LiveLaw (Utt) 12
The Uttarakhand High Court has held that recalling a child witness for cross-examination by the accused cannot be blanketly denied only because of Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 (the 'POCSO Act'). Notably, the provision requires Special Court to ensure that the child (prosecutrix) is not called repeatedly to testify in the Court.
While allowing an application for recall, a Division Bench of Acting-Chief Justice Sanjaya Kumar Mishra and Justice R.C. Khulbe held,
"…it was erroneous on the part of the learned Additional Sessions Judge/FTSC to reject the application to re-call the child witness only on the ground that Sub-Section (5) of Section 33 of the POCSO Act provides that repeated attendance of the child should be avoided. Moreover, an accused, who is arraigned for committing serious offence like rape and penetrative sexual intercourse, should be given an adequate opportunity of cross-examining the witness."
Case Title: Anees alias Anees Raza v. State of Uttarakhand
Citation: 2022 LiveLaw (Utt) 40
The Uttarakhand High Court dropped a criminal trial under the Protection of Children from Sexual Offences Act, 2012 after noting that the victim had moved on in life and did not intend to prosecute the accused.
The single bench of Justice Sharad Kumar Sharma noted that although offences under the POCSO Act and other IPC offences complained of in the criminal matter are not compoundable under Section 320 of CrPC, however, it could not be ignorant of the fact that both the applicant and the victim (upon attaining majority) had solemnized independent marriages and were living happily discharging their respective matrimonial obligations.
