08 November 2024 - Legal Updates

1. Sexual Assault Under POCSO Can’t Be Quashed Based on Compromise, Offence is Henious & Not of Private: Supreme Court

The Supreme Court set aside the Rajasthan High Court’s decision which quashed the ‘sexual assault’ complaint against a teacher (accused of rubbing the victim’s breast). The High Court had quashed the matter based on a ‘compromise’ between the victim’s father and teacher.

“We are at a loss to understand how the High Court arrived at the conclusion that in the case on hand a dispute to be resolved exists between the parties and further that to maintain harmony the FIR and all further proceedings thereto should be quashed,” the Supreme Court observed.

“When an incident of the aforesaid nature and gravity allegedly occurred in a higher secondary school, that too from a teacher, it cannot be simply described as an offence which is purely private in nature and have no serious impact on the society,” the court added.

The bench comprising Justices CT Ravikumar and Sanjay Kumar observed that matters related to sexual assault cannot be treated as private matters eligible for compromise-based quashing. The Court emphasized the societal impact of such crimes and mandated that proceedings continue in the interest of justice.

“Obviously, rubbing the breast of a child would constitute an offence of 'sexual assault' under Section 7 of POCSO Act, punishable with imprisonment of either description for a term which shall not be less than three years and may extend to five years and also fine. They would reveal that the commission of such offences against the children should be viewed as heinous and serious. Needless to say, that commission of such offences cannot be taken lightly as offences of private nature and in fact, such offences are bound to be taken as offences against the society.” the Court observed.

Reference was made to the decision in State of M.P. v. Laxmi Narayan (2019) 5 SCC 688 which held that an offence against the society cannot be compromised.

The Court also quoted with approval the judgment of the Delhi High Court in Sunil Raikwar v. State and Another which held that a POCSO Act offence cannot be "permitted to be settled."

"In view of the very object and purpose of enacting the POCSO Act, we find no reason to disagree with the conclusions in paragraph 12 (of the Delhi HC judgment) extracted above in the given case," the Supreme Court stated.

The Court also rejected the respondent's argument that the third person/appellant had no locus standi to challenge the quashing of FIR as they were not part of the criminal proceedings. The Court said that the offence of sexual assault, being grave and impacting society cannot be categorized as a private dispute disentitling the appellant's locus to challenge FIR quashing.

“In view of the nature of the offences alleged against the third respondent, one can only say that if they are proved they could be treated only as offences against the society and at any rate, it cannot be said that prosecuting an offender against whom such allegations are made is not in the interest of the society. In fact, it would only be in the interest of the society. In that view of the matter, when by quashing the FIR by invoking the power under Section 482, Cr. P.C., the accused was relieved of the liability to face the trial coupled with the aforesaid circumstances and the position of law qua locus standi of third party to maintain a petition under Article 136 of the Constitution of India, as revealed from the decisions referred above, we have no hesitation to hold that the challenge based on the appellants' locus standi got no merit at all.” the court observed.

While quashing the FIR, the High Court referred to the Case of Gian Kaur v. State of Punjab (2012) to observe that when the dispute between the parties is private not having much impact on society then the High Court should not hesitate to quash the FIR.

Setting aside the High Court's decision, the judgment authored by Justice Ravikumar observed that the High Court wrongly applied the dictum of Gian Kaur, as the Court, in that case, observed that the High Court is bestowed with the duty to examine whether the compromise entered between the parties could be acted upon or not in the interest of justice. However, in the present case, the High Court failed to bestow proper consideration in that regard.

Background

The Court heard a plea filed by the third party/appellant to the criminal proceedings who challenged the High Court's decision contending that heinous crimes, especially those involving minors and sexual offenses, cannot be treated as private matters eligible for compromise-based quashing.

The allegation against the teacher was that he rubbed the breasts of the minor child in nobody's presence in the classroom. The victim was threatened to shut her mouth when she tried to narrate the incident to other teachers. Anyhow, the FIR was lodged against the teacher under IPC, including the POCSO Act and SC/ST Act provisions. However, a compromise was reached between the teacher and the victim's family, leading to the quashing of the FIR by the Rajasthan High Court.

Aggrieved by the quashing of the FIR, the appellant-ordinary village men approached the Supreme Court.

Conclusion

The Supreme Court allowed the appeal, overturning the High Court's order and directing that criminal proceedings against the accused continue. Emphasizing that POCSO Act cases involve serious public interest, the Court held that such matters should not be dismissed solely based on a compromise between parties.

Case- Ramji Lal Bairwa & Anr. vs. State of Rajasthan & Ors.

2. Calcutta High Court Quashes Case Against BJP Leader Kailash Vijayvargiya Over Allegedly Misleading Post on ‘X’

The Calcutta High Court has quashed a case against BJP leader Kailash Vijayvargiya accused under Sections 504/505(1) (b)/ 120B of the Indian Penal Code, 1869, for allegedly misleading posts regarding workers belonging to the ruling party posted on his X (Twitter) account.

It was alleged by the state that Vijayvargiya had shared a fake video of women being assaulted on his X handle and claimed that the ruling party workers were behind the assault. It was argued that this post led to widespread disruption of peace in the area.

In quashing the case against Vijayvargiya, a single bench of Justice Ajay Kumar Gupta held.

All Sections mentioned in the instant case or started against the Petitioner are non-cognizable in nature...In the light of above discussion and upon perusal of the Judgments referred by the learned counsel for the petitioner and the legal Maxim “Sublato Fundamento Cadit Opus” meaning thereby “initial action by the Police Authority without following the provision as laid down in the Criminal Procedure Code is bad, all subsequent actions are bad” are squarely applicable in the present case.

Background

It was stated that Opposite Party No. 2 alleged that the Petitioner (Vijayvargiya) shared pictures of two women being assaulted and humiliated by some persons via social media through his Twitter account. Such an incident allegedly took place in the area of the informant. However, the informant stated that the entire episode is absolutely fallacious and it was because of such misleading information and statements, a tension was created in the said region, thereby leading to a disturbance of the peace in the locality.

On the basis of such a written complaint, a First Information Report was registered against the Petitioner for initiating an investigation.

The Petitioner asserted that he is an eminent, distinguished and renowned political figure from the opposition party of the State. Furthermore, it is also stated that at the time of lodging such a complaint, he was the National General Secretary of the opposition party of the State.

It was stated that after the results of the West Bengal Assembly Elections were declared, the Ruling Party due to political vendetta, falsely initiated the present case against the Petitioner, even though the alleged offences are non-cognizable in nature, which does not empower the police authority to investigate without order of the Magistrate.

It was stated that no direction has ever been passed under Section 155 (2) of the CrPC by the Magistrate before investigation. Furthermore, the offence as alleged by the complainant does not fulfil the essential ingredients of any criminal offence whatsoever as such registration of the First Information Report by the police authority is illegal and harassing the petitioner. Consequently, the Petitioner approached with this

Agreeing with the submissions of the petitioner, the court held that the offences were indeed non-cognizable, and since the police started investigating them without the approval of the magistrate, their initial action had rendered the present prosecution void.

Accordingly, the case was quashed.

Case- Kailash Vijayvargiya vs. The State of West Bengal & Anr.

3. Section 482 BNSS | Once Pre-arrest Bail is Denied On Merits, Second Plea Can’t Be Entertained Without Any Change In Fact Situation: Punjab & Haryana HC

The Punjab & Haryana High Court has made it clear that once the first anticipatory bail has been denied on merits and without there being change in the facts of the situation, the second application for the same relief under section 482 BNSS cannot be entertained by making new arguments or twist by introducing new circumstances, development or material.

Justice Kirti Singh while rejecting the second anticipatory bail plea in a murder case noted that there was no change in circumstances and non-bailable warrants have already been issued against the accused.

The Court further elucidated that the concession of anticipatory bail is intended to prevent harassment through wrongful arrest but it is not a remedy for intentionally evading of the lawful process once non-bailable warrants are issued.

It added that granting anticipatory bail in these circumstances would undermine the purpose of non-bailable warrants as these are intended to ensure individual's presence and compliance with the judicial process.

These observations were made while hearing the second anticipatory bail of one Sikandar Singh, who was booked under FIR under Sections 302, 307 and 34 of Indian Penal Code, 1860 and Sections 25/27 of Arms Act.

Earlier the Court had dismissed the pre-arrest bail plea on merits. However, the petitioner argued that various documents which were sine qua non for deciding the bail application of the petitioner which were neither referred nor placed on record and mentioned in the petition including statement of complainant and eye-witnesses.

After hearing the submissions, the Court considered the question, "whether once this Court had dismissed the earlier anticipatory bail application, can the accused be permitted to file second application for anticipatory bail under Section 482 of BNSS."

Reliance was placed on Maya Rani Guin and etc. vs. State of West Bengal, [2003(1) RCR(Criminal) 774] wherein it was categorically held that entertaining second application for anticipatory bail would amount to review or re-consideration of the earlier order passed by a Bench having coordinate jurisdiction, as the accusation remains unchanged.

In the present case, the Court noted that the petitioner was summoned under Section 319 of Cr.P.C to face trial and non-bailable warrants of the petitioner were issued in August and September. Now the proceedings under Section 82 Cr.P.C. has been initiated against him.

In the light of the above, the Court dismissed the plea.

Case- Sikandar Singh vs. State of Punjab & Another