THE BLANKET EXTENSION OF LIMITATION PERIOD DURING PANDEMIC: NOT PERMISSIBLE

 

The BLANKET EXTENSION OF LIMITATION PERIOD during pandemic: NOT PERMISSIBLE

The law relating to limitation is quite significant, as no claim can be pursued till perpetuity and finite period for raising claim is thus stipulated. The Limitation Act 1963 governs that. In the backdrop of Covid and owing to lockdown, people are genuinely prevented from raising their plea in courts of law and therefore the hon’ble Supreme Court under the extra-ordinary power as conferred on it under Article 141 of Constitution of India in Suo Motu case No. 3/2020 has extended period of limitation from time to time so as to prevent the claims of parties being stale in the backdrop of pandemic. The hon’ble Supreme Court has finally in the Suo Motu Case No.3/2021 was pleased to extend the period of limitation w.e.f 15.03.2020 till 02.10.2021.However, the ensuing discussion is whether the extension is blanket or could it be circumscribed in facts and circumstances of the case.

The Hon’ble Delhi High Court have rendered a judgment on 17^th  December, 2021 in CS (Comm) 119/2020 and in a matter captioned as  HT MEDIA LIMITED & ANR versus BRAINLINK INTERNATIONAL, INC. & ANR  (CORAM: HON'BLE MS. JUSTICE ASHA MENON)

It is to be noted that the suit related to infringement of Trade Mark. The order in the captioned matter was passed while disposing the application filed by the defendants under Order VIII Rule 1 read with Section 151 of Code of Civil Procedure for seeking condonation of delay in filing the written statement. The defendant had claimed that were not served with the summons of the suit and merely intimation was received to the effect that a suit is filed and that order dated 28th April, 2020 is passed by the court, through email, in compliance of requirements of Order XXXIX Rule 3 CPC.

The defendants had thus entered appearance and filed reply to the interim application filed by the plaintiffs. The defendants believed that they were not required to file a written statement of defence until and unless served with the summons of the suit. In any case, as the global pandemic had adversely affected the world, hence extension in limitation period was perceived as permissible. Moreover, the defendants had believed that Supreme Court of India was pleased to take cognizance of the situation and extended the limitation and therefore, the delay in filing written statement was liable to be condoned and the same could be taken on record.

The plea of defendants was that the 30 days’ time-line provided for filing of the written statement is  extendable for a period of 120 days and that is to be reckoned from the date when the summons were served. As no summons were never served on the defendants and further as defendants had appeared in response to the information furnished in compliance of Order XXXIX Rule 3 CPC, thus, in actual fact, there is no delay in filing of the written statement. The judgment rendered by Supreme Court in Cognizance For Extension of Limitation, In re. (2020) 9 SCC 468 [Misc. Appl. No.665/2021 in SMW(C) 3/2020] was relied upon to contend that the limitation period has been extended for all purposes. Further, reliance was placed on the judgment of the Division Bench of Delhi High court in Rohit Sharma v. A.M. Market Place Pvt. Ltd., 2021 SCC OnLine Del 3092.

The plaintiff had opposed the plea, as the delay was nearly 441 days, after the ad-interim order was passed and no cogent reasons were given to explain the delay. Pertinently, the defendants have appeared in the court, through their counsel, on several dates and still, the defendants opted not to file written statement. The Commercial suit in any case by virtue of its very nature mandates expedition. The application for seeking condonation was thus liable to be dismissed and right of the defendants to file the written statement should be closed. The plaintiff’s plea was that this was not a case in which the defendants had been prevented from participating in the proceedings. The suit, which itself had been filed while the pandemic was raging and the first order having been passed on 28th April, 2020, when the video conferencing hearings had commenced, and when the interim directions were issued, indicated that urgent matters were being heard by this court. The defendants had in fact appeared before the court on 29th May, 2020, through counsel, when it was informed to the court that two applications were being listed on 2nd June, 2020. One of these applications was filed by the defendants under Order XXXIX Rule 4 CPC. Therefore, the defendants knew about the pendency of the suit and their claim that they expected to be served with the summons before filing their written statement, is untenable. Still further, a list of other applications filed by the defendants has also been given in the written submissions as also in the reply, to point out that the defendants were not prevented by the pandemic from taking various steps or participating in different proceedings before different fora. It was thus pleaded that the benefit of the Supreme Court decision in Cognizance For Extension of Limitation (supra), could not enure to the defendants.

It was also contended that the application for seeking condonation of delay in filing written statement was filed only after the plaintiffs had filed their application under Order XIII-A CPC, seeking summary judgment in their favour, which was listed before the court on 6th July, 2021.

                            CASE LAWS:

1.  Love Chauhan v. Ajay Kumar Kathuria, 2021 SCC OnLine Del 4861,

2.  Shagufa Ahmed v. Upper Assam Polywood Products Private Limited and Others. (2021) 2 SCC 317

3.   Bharat Kalra v. Raj Kishan Chabra, 2021 SCC OnLine Del 3976

The aforesaid dicta buttress the plea that the benefit of extension of time pursuant to the orders of the Supreme Court on 23^rd March, 2020, was not automatically available to all.

Reliance has been placed on the judgment in

1.  Flight Center Travels Pvt. Ltd. v. Flight Centre Limited, 2013 SCC OnLine Del 331,

2.  Siraj Ahmad Siddiqui v. Prem Nath Kapoor, (1993) 4 SCC 406,

3.  Nath Agrawal v. Nath, 1981 SCC OnLine All 445

4.   Sunil Poddar v. Union Bank of India, (2008) 2 SCC 326, The aforesaid judgments relates to the fact that once the defendants participated in the proceedings, the defendants waived the right to be served with the summons.

In the light of the above judgments, It is held in the matter by hon’ble Delhi High Court that defendants were not impacted due to the conditions that prevailed due to the pandemic and nothing precluded the defendants from interacting with their counsel and filing appropriate applications and replies before this court and therefore the judgment rendered by hon’ble Supreme Court in Cognizance For Extension of Limitation (supra) would not be applicable to the facts of the present case. It was also noted that that the parties were referred to mediation on 22^nd  February, 2021 and the report that mediation efforts had failed, received on 30^th June, 2021. Subsequently, when plaintiffs on 6^th July, 2021, applied for summary judgment that the defendants had woken up from slumber and opted to file a written statement and application for condonation of delay was filed for placing written statement on record.

Another aspect that the hn’ble court had also weighed in the context was that whereas on 28^th April, 2020, summons were directed to be issued and process fee was also directed to be filed, and as per record the one-time process fee was envisaged to be deposited by the plaintiffs, however, the Registry does not seem to have issued any summons, though intimation was sent to the defendants giving the particulars of the case and the interim directions of this Court. The question is whether this lapse, if it be one, would enure to the benefit of the defendants? The High Court has answered that no such benefit shall enure to the benefit of defendants. The high court having regard to Supreme Court judgment in Sunil Poddar (supra) has held accordingly. Though, the judgment rendered In Sunil Poddar (Supra) was in the context of an application under Section 22(2)(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 read with Order IX Rule 13 CPC, still, the observations made therein would be significant here. In that case, it was held that the question is not whether the defendants were actually served with the summons in accordance with the procedure laid down and in the manner prescribed under Order V CPC, but whether the defendants had sufficient notice of the date of hearing and had sufficient time to appear and answer the claim of the plaintiffs. To reproduce paragraphs No. 23 and 24 of the said judgment shall be worthwhile:

 “23. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order 5 of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff's claim, he cannot put forward a ground of non-service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order 9 of the Code. Since the said provision applies to the Debts Recovery Tribunals and the Appellate Tribunals under the Act in view of Section 22(2)(g) of the Act, both the Tribunals were right in observing that the ground raised by the appellants could not be upheld. It is not even contended by the appellants that though they had knowledge of the proceedings before DRT, they had no sufficient time to appear and answer the claim of the plaintiff Bank and on that ground, ex parte order deserves to be set aside”.

24. “In our opinion, the Tribunals were also right in commenting on the conduct of the appellant-defendants that they were appearing before the civil court through an advocate, had filed written statement as also applications requesting the court to treat and try certain issues as preliminary issues. All those facts were material facts”.

14. A coordinate Bench of Delhi High Court in Flight Center (supra) has held that when the defendant had knowledge of the case and had entered appearance through counsel, a technical process of service of summons need not be insisted upon. It was observed as below: -

“It was, therefore, incumbent upon the appellants to disclose such facts in an application under Section 22(2)(g) of the Act when they requested DRT to set aside ex parte order passed against them. The appellants deliberately and intentionally concealed those facts. There was no whisper in the said application indicating that before the civil court they were present and were also represented by an Advocate. An impression was sought to be created by the appellant-defendants as if for the first time they came to know in December 2000 that an ex parte order had been passed against them and immediately thereafter they had approached DRT. The Debts Recovery Tribunal, Jabalpur, therefore, in our opinion was right in dismissing the said application.”

The objective of the process of issuance of summons is to obtain the presence of the defendant for final opportunity to be given to him to rebut the claim against him. Thus, if he appears at the initial stage in a sense there is waiver of the right to have summons served on him. This position has been explained in the case of Sri Nath Agrawal case (supra) and to that extent the aforesaid has been upheld by the Supreme Court in Siraj Ahmad Siddiqui case (supra).”

The high court thus held that there is no reason to take a different view in the present case. The defendants in the present matter were fully aware of the present case and had participated on various dates from 29^th May, 2020, including in mediation, and opted not to file their written statement. Had they been not represented by a counsel, a probable view could have been taken that the procedure was unknown to the defendants. However, they have been assisted by counsel throughout this being a commercial suit, entailing strict timelines. The plea of the defendants that since the summons had not been served to them, the time had not begun to run, cannot be accepted. Thus, on both grounds, there is no merit found in the application seeking condonation of delay in filing written statement. The delay was thus not condoned and filing of the written statement was declined.

REMARK

The pandemic, no doubt has caused colossal loss of time and resources and the Suo Motu Writ Petition No. 3 of 2020 passed hon’ble Supreme Court has been apt and with a view to securing ends of justice, so that litigants are not non- suited owing to the reasons beyond the control of litigants. However, the moot point is that when a litigant is aware about the development in a case and had not only the wherewithal, but, opted to appear in the said case and defended the case, through counsel with all the might in their command, whether, the leverage accorded to by the hon’ble Supreme Court could be claimed by such a litigant as a matter of right for seeking delay for inordinately longer period? The technicalities of formally receiving a summon should therefore be a sine qua non in such a situation or not? It is held not to be so, by the hon’ble high court. The legal process is to aid and not to avail technical brownie point. As it is, the delay is often caused and it is alleged that the judicial process has inherent impediment ingrained in it, thereby, causing delay. In the context, the expedition should be the norm and efforts to that effect deserved to be lauded, of course, while ensuring that the litigants does not suffer in bona fide case, for want of legal aid. In the present case, the parties were duly represented and had all the knowhow and wherewithal and opted selectively to invoke the nuances of law and procedure, therefore, taking advantage of a system by harping on the leverage available only to bona fide litigants and no inbuilt claim of extension of period of limitation could be claimed by a party. If a party, notwithstanding the above, seeks to avail of such condonation in delay, in placing written statement on record, the same could only be dealt with on its own merit as is held by Delhi High Court in the present matter. That said, though,  final words, probably, in the context is yet to come.

                                                   Anil K Khaware

                                                   Founder & Senior Associate

                                                   Societylawandjustice.com

 

 

 

PROTEST PETITION: A LEGAL PERSPECTIVE

 

PROTEST PETITION: A LEGAL PERSPECTIVE

 

In criminal cases, protest petition is a term which is in vogue quite often. The protest is raised in case of a Final Report filed by the Police before a concerned Magistrate seeking closure of case, pursuant to registration of F.I.R. The closure Report is filed under Section 169 of Code of Criminal Procedure, in the event, according to police, no evidence in the case was found to file charge sheet against the accused. Generally, closure report is filed owing to lack of evidence and thus, inability of police to file charge sheet. The protest petition by a victim , however, could be filed against such closure report or also if the F.I.R registered is under inadequate provisions or if any clear and tangible fault are conspicuous in investigation and if there is a shoddy investigation. It may be noted that Section 156(3) of Cr.P.C contains a comprehensive provision, under which a Magistrate is empowered to monitor the case and necessary guidelines or directions to Police could be passed by a concerned Magistrate. The investigation is generally believed to be domain of investigation, but the Magistrate is not powerless even during investigation as per the trap of section 156(3) of Cr.P.C and the precedents have evolved in pursuance thereto through various judicial dicta as laid down by hon’ble Supreme Court.

Though, much in vogue in legal framework, but the word protest petition is no where defined or mentioned in Code of Criminal Procedure. However, it has evolved as procedure any by dint of the judicial precedents, more particularly, in the last Two decades or so when such issues are dealt with more pervasively. The next question of significance relates to the Role of a Magistrate, whether a Magistrate is obliged to accept the Closure Report/Final Report as per section 169 of Cr.P.C or any discretion as regards accepting or rejecting the Closure Report/Final Report is vested in a Magistrate. The law has matured in this regard, ever since, and it is now settled that a Magistrate is not obliged to accept the Closure Report/Final Report and discretion is accorded to a Magistrate, whether to accept or reject the report.

THE OPTIONS TO A MAGISTRATE

In case a Closure report/ Final Report seeking closure of case investigated by the Police in a F.I.R, filed before a Magistrate, the options before the ld Magistrate is clear and discernible. The options are:

(a) The Magistrate may accept the Final Report and may reject the Protest Petition.

(b)  The Magistrate may accept the final report, but treat the protest petition as a complaint and proceed in accordance with Section 200 of Cr.P.C.    

(c) The Magistrate may accept the Protest Petition and reject the Final Report and take the cognizance u/s 190(1)(a) of Cr.P.C.

It is held in Dilawar Singh Vs State of Delhi JT 2007(10)SC 585 that If the aggrieved person is aggrieved by the shoddy investigation or improper investigation, such a person can approach court of Magistrate u/s 156(3) and if the Magistrate is satisfied, he can order a proper investigation and take other suitable steps and pass such order as he thinks necessary for ensuring proper investigation. To state, in yet another recent judgment of hon’ble Supreme Court reported as T.C Thangaraj Vs V.Engammal & Ors III(2011) CCR 295 SC it is held that Magistrate can direct the police to carry out investigation properly and can monitor the same if Magistrate finds that Police have not done their duty or not investigated properly.

 

LAW & PRECEDENTS

The hon’ble Supreme court in State of Punjab Vs Baldeo Singh 1999(39) . ACC 349 have expressed anguish in the following words :-

“There is indeed a need to protect society from criminals. The society intent in safety will suffer if persons who commit crime are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed”.

The accused are not to be heard for hearing in closure report

Karan Singh  vs State  1997 ACC 163 (1997 AIHC 376)

S.C Misra  vs State  1996 AWC (Supp)318

S. K. Sharma reported in 1994 ACC, 748

Anil Kumar  vs State 1994, ACC 535

The Hon’ble Supreme Court in aforesaid cases has held that the Magistrate is not required under the law to hear an accused before rejecting a final report submitted by the Investigating Officer or while hearing an informant in opposition of filing of such final report.

Abhinandan Jha AIR 1968 SC 117: (1968 All LJ 373),

The hon’ble Supreme Court has held:

“whenever an informant found fault with a Final Report being filed by the Investigating Officer, he would file protest petition before the Court of the Magistrate. On hearing the informant on the protest petition, the Court could pass an order of summoning the accused by rejecting the Final Report, or, direct further investigation, or accept the Final Report and reject the protest petition. It should be useful to notice here that in none of the Criminal Procedure Codes that is the one now in vogue, Cr. P. C. of 1973 or the repealed Cr. P. C. of 1898 or the earlier Cr. P. Cs. of 1982 or of 1872 or the earliest one that is Cr. P. C. of 1861 is there any provision permitting an informant to file any objection against Final Report filed by an Investigating Officer. The practice of hearing an informant through the mode of protest petition was permitted because it was carrying forward the true spirit behind the very purpose of as investigation undertaken by Police upon a grievance of an informant regarding commission of an alleged offence. The best precedence on the permissibility of preferring protest petition is reported in the decision in Abhinandan Jha (supra) wherein the practice of filing protest petition against Final Report has been specifically noted and countenanced by the Hon'ble Supreme Court”.

It is to be culled out that that till that stage the issue of truthfulness of allegations of the informant is confined between the informant on the one hand and the Investigating Officer on the other. Invariably only one issue has to be determined whether the named or unnamed accused, as may apparently emerge from the allegations in the FIR, has or has not to be challaned to Court for trial. No other issue opens up before the Investigating Officer. All steps of the Investigating Officers are directed towards that single goal. In order to arrive at the said conclusion, the Investigating Officer may take all steps indicated in Chapter V for 'arrest of persons', in Chapter VI for process to compel appearance and Chapter VII for process to compel the production of things. It may be stated here, just as a reminder that arrest of an accused or suspect at one point of time by the Investigating Officer does not necessarily mean that a charge sheet is bound to be filed against him at the conclusion of the investigation and likewise not arresting an accused or suspect by the Investigating Officer would not mean that final report is bound to be filed in his favour.

As per the dicta of hon’ble Supreme Court any lapses of Police officials during the investigation process or any dereliction of duty may be taken note of by the Magistrate and the Magistrate has comprehensive power to secure the end of justice. In the matter reported as Sakri Vasu Vs State of U.P  AIR 2008 SC 907:  2008 AIR SCW 309:  2008 (1) ALJ 752 it is held that Magistrate can monitor investigation and Magistrate can invoke his power u/s 156(3) to redress grievance of complainant by issuing appropriate directions to police, even after registration of F.I.R.

As per the latest verdict on protest petition by Supreme Court all protest petitions are not complaints. In Vishnu Kumar Tiwari v. State of Uttar Pradesh ( Criminal Appeal No. 1015 of 2019), the Supreme Court observed that, “In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint is a different matter. Undoubtedly, if a magistrate treats the protest petition as a complaint, he would have to follow the procedure prescribed under Section 200 and 202 of the Code, if the latter Section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the Investigating Officer; cognizance could be taken under Section 190 (1) (b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy for the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code.”

In case of Rajesh v. State of Haryana (Criminal Appeal No. 813 of 2019), the Supreme Court held that, “If police names only some accused in the charge sheet instead of all accused named in FIR, the Magistrate has to give an opportunity to the informant to file protest petition.”

Issue with the Protest Petition:

The significance of the Protest Petition for a victim’s right is elusive since, apart from its non-existence in statutory literature, it also suffers from lack of certainty due to the limited number of case laws available to discern it from its ambiguities. Since the Protest Petition can be sent directly to the Magistrate without any police intervention, it expands a victim’s remedies in law, since the Magistrate need not even look at the shoddy police report to decide whether to go forward with the complaint or not.

To meet the goals of justice, victim can go with this remedy where previous investigation had wrongly acquitted the accused. Once the Magistrate establishes that this was not a false complaint and the victim is rightly unsatisfied, he/she can conduct the inquiry by himself/herself, or order an investigation by an officer-in-charge, to whom the complaint is forwarded.

However, the essential ingredients of the Complaint must be satisfied to maintain a Protest Petition before Magistrate and Magistrate in apt case may take cognizance under section 190(1) (a) of the Code of Criminal Procedure, 1973. There are three options available to the Magistrate, when the final report is submitted by the police and the Protest Petition is filed, as elucidated above.

LEGAL POSITION

The correct legal position is that Magistrate is not bound to accept the final report submitted by the police officials. The Magistrate can disagree with that report and take the cognizance even on the basis of police papers, if any submitted along with the police report. Hence, where the Protest Petition is filed, the procedure prescribed for trial of the complaint case has to be followed and Protest Petition has required to be dealt accordingly as per law. Moreover, section 173(8) entails further investigation and without proper investigation, if the case against the accused whether named or named is sought to be closed, the same could be rejected on the touchstone of law.

Conclusion:

The Protest Petition, though, has not as yet become the part of statute book, still, with a view to do substantive justice through judicial orders a mechanism is evolved whereby the aggrieved party i.e complainant can seek judicial innovation. As per the existing criminal justice system in our country, role of victim is negligible, however, increasingly the ladder of leverage are being accorded to the victim by courts with a view to do substantive justice in a matter, in as much as it is the victim who are directly affected and as the criminal wrong is wrong against state and thus state represents victim, but making a victim oblivious to the process shall not do any good and that realization has made qualitative change in judicial dicta and even issues could be raised by a victim which may be the sphere of investigation and trial. This is high time, parliament codified law and included the provisions of Protest petition in Cr.P.C and also to accord further leverage to the victim in the statute book with a view to aid, emphasize and contribute in the role of prosecution.

                              Anil K Khaware

                              Founder & Senior Associate

                              societylaw&justice.com

 

POCSO ACT: AS IT EVOLVED

 

POCSO ACT: As it evolved

 

Prevention of Children from Sexual offences (POCSO Act 2012 was enacted for safeguarding children from paedophiles and sexual offenders and procedure is laid down and rules framed in that regard. The nuances of law as also the concerns raised of late and more particularly, owing to acquittal of an accused from the charges under POCSO by a ruling that skin to skin contact shall be imperative for making out a case within the purview of Section 8 of the Protection of Children from Sexual Assault (POCSO) Act, which stipulates a minimum punishment of Three (3) years.

There has been considerable debate and discussion as regards the judgment as referred to above.  The ruling by Nagpur Bench of Bombay High Court, in a matter captioned as Satish Ragde Vs. The State of Maharashtra (Criminal Appeal No. 161 of 2020) (Criminal Appeal No. 161 of 2020). The concern has been generic and it is all over. The Attorney General has raised the issue before hon’ble Supreme Court and even National Commission for Women has also preferred appeal against the judgment, besides, State of Maharashtra, also have preferred appeal. The present article shall delve the Act, rules framed thereunder as well as judicial precedents in is perspective, apart from wholesome discussion on POCSO as it evolved.

Before proceeding further, the aforesaid ruling of Bombay High Court may be worth further analysis. The high court has held that groping a minor’s breast without skin-to-skin contact cannot be construed as sexual harassment as described under Section 7 of  POCSO Act. It is to be noted that the 12 year girl was the victim and her mother had registered a case under the POSCO Act. The hon’ble Bombay High Court had set aside the judgment of Sessions Court, which had imposed imprisonment of Three (3) years on the offenders for committing offence against 12 years old girl child. It was held by Nagpur Bench of Bombay High Court that touching a minor's breast shall not be akin to sexual assault, unless, the accused removed the child's top worn. The Court has held that sexual harassment under POSCO Act may have been construed, if done with sexual intent and includes touching the child's private parts or having the child touch the accused's private organ.

The POCSO Act took into consideration the standards prescribed by the Convention on the Rights of the Child adopted by the General Assembly of the United Nations to which the Indian government acceded to on December 11, 1992. The interpretation of the legislation is flawed since the “physical contact” does not necessarily imply skin to skin touch. The hon’ble judge, thus, ostensibly have relied upon a flawed interpretation of the Act and the impact of that shall be far reaching. If this flawed interpretation is allowed to subsist, the entire Act may be redundant. It is in this backdrop, that the Attorney General had requested the Supreme Court to take Suo moto cognizance of the matter. The hon’ble Supreme Court has recorded the fact that the Attorney General had brought to court’s notice judgment of the Bombay High Court, Nagpur Bench dated January 19, 2021, in which the High Court has acquitted the accused under section 8 of POCSO Act on the ground that the accused had no sexual intent in committing the offence under POCSO, because, there was no direct physical contact i.e. skin to skin. The Attorney General submitted that order is unprecedented and likely to set a dangerous precedent. The hon’ble Supreme Court has stayed the acquittal of the accused.

The decision, it appears may have smeared the legislative intent of the Act which is to prescribe enhanced protection to minors for their healthy growth. The Article 21 of Constitution of India which is Right to life and liberty and without dignity such a right shall be rendered meaningless and hence, such a legislation is in place. By virtue of the judgment of Bombay High Court, the very objective appears to have been relegated and the interpretation of “Sexual Assault” by hon’ble high Court is baffling. The sexual crime against child shall entail no leniency, else, the very object of enacting POCSO to punish sexual offenders shall be negated. The narrow interpretation of the law, in the context of above has thus shocked many.

OBJECT OF POCSO

The object of POCSO has been clear and distinct and even if there could be some overlapping between Indian Penal Code and POCSO Act, the fact remains that POCSOO Act is enacted to cater to a situation and is gender neutral.

The POCSO Act seeks to cover all children below the age of 18 years. It is a gender neutral Act and prescribes child friendly processes for reporting, recording and trial as the best interest of child is a priority. The burden of proof shall lie on accused in cases of penetrative sexual assault, sexual assault and aggravated sexual assault. The reporting of child abuse cases is also made mandatory.

 

Why the need of enactment of law such as POCSO was felt is a moot point. Prior to 2012, for instance, if a male child was sexually assaulted, and if the act was penetrative, the act could fall within the purview of Section 377 of the Indian Penal Code that criminalizes unnatural sex. In the prevailing situation a minor male child could not report a case of non-penetrative sexual assault under the IPC. The absence of a gender-neutral law was thus felt with the avowed object to protect children from sexual offences, and then came POCSO Act, 2012. 

The preamble of the POCSO Act sets out in no uncertain terms the object. It begins with –

“An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences…”.

Some unique features of the POCSO Act are:

(i)        It is a gender-neutral legislation – it only refers to the perpetrator as “person”, and the victim as “child”  who is below the age of 18.

 It also deals with:  –

·       Sexual Assault and includes Penetrative Sexual Assault (if the sex organ or any object is inserted into any part of the child’s body).

·        Aggravated Penetrative Sexual Assault (when a police officer/ member of the armed forces/ public servant/ staff of hospital/ staff of educational institution commits sexual assault on a child).

·        Sexual Harassment i.e harassment through words or gestures including showing porn to a child porn or making a child exhibit any part of their body).

·        Significantly, use of the words “rape”, “eve-teasing”, or “outraging modesty” are not in vogue in the Act, unlike the Indian Penal Code. This legislation has been created with the intent to ensure that technicalities and descriptions does not come in the way of implementation of the provisions of the Act.

·        A special court and a special public prosecutor has to deal with offences under the POCSO Act.           

 

Special Courts (Section 26)

For the purpose of speedy trial, State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, appoint a Special Court i.e. Sessions Court in each district. If any person attempts to commit an offence under the POCSO Act during the provision of Sessions court, protection of Child Rights Act, 2005 or any rule applicable at that time, then such Court shall be deemed to be a Special Court under this section.

Special Court formed under this Act has the right to decide on cases which involves online exploitation of a child through any act, or conduct or manner.

 

Power & Procedure of Special Courts (Section 33)

 

1.         Any Special Court can take the cognizance of any offence, upon receiving a complaint of facts which constitute such offence, or on police report.

2.         The Special Public Prosecutor or any advocate appointed by accused, shall submit the questions to the Special Court that need to be asked to the child during examination-in-chief, cross-examination or re-examination, which the Special Court shall in turn put those questions to the child.

3.         If Special Court finds it necessary, then, it can permit frequent breaks to the child during trial.

4.         Special Court shall create a child-friendly atmosphere in the court by allowing any member, care taker, friend or relative, in which the child has trust or confidence.

5.         Special Court shall ensure that the child is not called repeatedly in the court.

6.         Special court shall not permit aggressive questioning or character assassination of child and shall ensure the dignity of child is maintained throughout the trial.

7.         Special Court shall ensure that at no time during the trial identity of child is disclosed.

8.         If found necessary or in best interest of child, Special Court shall give the permission for revealing the identity of child Explanation: child’s identity shall include the child’s family, school, relatives, neighborhood or any other information through which the identity of child can be found.

9.         Special Court can also order to provide compensation to the child for physical and mental injuries caused for the immediate rehabilitation of child.

10.       Special Court, for the purpose of trial, has all the powers of Sessions Court, and can also ask for the reason of delay in trial.

REQUISITES OF COMPLAINT

The report or complaint about child abuse could be filed, If any person, including child, has any doubt that such offence can happen or has the knowledge that such offence has been committed, can give the information to the following authorities:

i.                 Special Juvenile Police Unit constituted in all police stations;

ii.               Local police

iii.             The non- reporting of offence or filing a false report shall also be liable for punishment.

iv.             The report has to be written and entry of the report in the register of police is a must. In case, it is field by a child ,m then it should be registered in simple language, to enable the child to understand and in case a child does not understand that language, then translator should be used

Not reporting any offence committed under the provisions of this Act,  Shall be punished with an imprisonment of upto six months and/or with fine.

With a view to ensure child’s complete development and respect, during all the steps of legal procedure child’s information needs to be kept confidential. It is necessary to:

i. Not to make any report or present comments related to child which can violate the confidentiality of child’s information. Media shall not disclose any information without any authentic proof.

ii. If through media’s report, no information of child shall be disclosed like name, address, photograph, family details, neighbourhood or any other particulars; until the capable court haven’t released any order permitting the same.

 

In case, the concerned investigating agency understands that the child of sexual abuse need care and protection, then the reasons should be recorded and within the limits of 24 hours police is required to arrange care and protection in a manner necessary.

The Special juvenile Police unit or any local police shall inform about the cases to Child Welfare Committee and to the Special Court or to the Sessions Court, in case the Special Court have not been specifically provided for..

If any person inserts or penetrates any private body part or any object in child’s body or makes the child to do so with him/her, then the same may be treated as penetrative sexual assault and prescribed punished shall be a minimum Ten (10) years which may extend upto imprisonment for life, and shall also be liable to fine. If penetrative sexual assault is done on child below 16 years than the punishment will be minimum 20 years and can extend to life imprisonment and shall also be liable to fine.

 

In an aggravated penetrative sexual assault, minimum terms of imprisonment shall be 20 years and can also be saddled with life imprisonment or even death penalty, besides fine. The fine paid is to be used to meet medical and rehabilitation expenses of victim.

STATEMENT OF CHILD

Child’s statement shall be recorded at the residence of child or at place where child is comfortable in presence of a woman officer not below the rank of sub-inspector.

While recording the statement of child, police officer shall not be in uniform.

The police officer investigating the case shall make sure that the child at no point comes in contact with the accused.

Under no circumstances the child shall be detained in police station in the night.

Police officer shall ensure that child’s identity is protected from public and media, unless otherwise directed by the Special Court in the interest of child.

Recording of statement of child by police (Section 24)

According to section 74 of The Juvenile Justice (Care and Protection) Act, 2015, (1) No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published: Provided that for reasons to be recorded in writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child.

(2) The Police shall not disclose any record of the child for the purpose of character certificate or otherwise in cases where the case has been closed or disposed of.

(3) Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to Two Lakh rupees or both.

i. If the victim of offence is a girl child, then the medical examination shall be conducted by a woman Doctor.

ii. Child’s medical examination shall be conducted in the presence of parents or guardian, and if they are not present, then in presence of any other person in whom the child has trust or confidence

iii. If during medical examination of child, his/her parents or any other person whom the child trust cannot be present, for any reason, then the medical examination shall be conducted in presence of a woman nominated by the head of medical institution.

Presumption as to certain offences (Section 29)

Estimation of certain offences

If any person is facing criminal charges related to sexual offence on a child or abetting others to commit sexual offence on that child, then the Special Court shall believe that the person has committed the offence, unless proven otherwise.

Presumption of culpable mental state (Section 30)

Special Court shall believe that the offender has the knowledge of offence and the person has the intention and motive of committing the offence, unless it is proven otherwise, that the person mental state was different.

Special Public Prosecutors (Section 32)

i. To conduct cases of state government, in every court a Special Public Prosecutor shall be appointed.

ii. A person shall be eligible as a Special Public Prosecutor only when he/she had been in practice as an advocate for not less than 7 years.

 

Procedure and Powers of Special Courts (Section 33)

1. Any Special Court can take the cognizance of any offence, upon receiving a complaint of facts which constitute such offence, or on police report.

2. The Special Public Prosecutor or any advocate appointed by accused, shall submit the questions to the Special Court that need to be asked to the child during examination-in-chief, cross-examination or re-examination, which the Special Court shall in turn put those questions to the child.

3. If Special Court finds it necessary, then, it can permit frequent breaks to the child during trial.

4. Special Court shall create a child-friendly atmosphere in the court by allowing any member, care taker, friend or relative, in which the child has trust or confidence.

5. Special Court shall ensure that the child is not called repeatedly in the court.

6. Special court shall not permit aggressive questioning or character assassination of child and shall ensure the dignity of child is maintained throughout the trial.

7. Special Court shall ensure that at no time during the trial identity of child is disclosed.

8. If found necessary or in best interest of child, Special Court shall give the permission for revealing the identity of child.

Explanation: child’s identity shall include the child’s family, school, relatives, neighborhood or any other information through which the identity of child can be found.

9. Special Court can also order to provide compensation to the child for physical and mental injuries caused for the immediate rehabilitation of child.

10. Special Court, for the purpose of trial, has all the powers of Sessions Court, and can also ask for the reason of delay in trial

 

RECORDING OF EVIDENCE (Section 35)

Period for recording of evidence of child and disposal of case:

i. Evidence of child shall be recorded by the Special Court within a period of 30 days of cognizance of offence;

ii. Special Court shall complete the trial, as far as possible, within a period of one year from the date of cognizance of the offence Child not to see accused at the time of testifying (Section 36);

iii. Special Court shall ensure that the child is not exposed to the accused while giving statement, and shall also ensure that the accused is in a position to hear the child’s statement and communicate with his/her advocate;

iv. Special Court shall record the statement of child through video conferencing or by using single visibility mirrors or curtains Trials to be conducted in camera (Section 37);

v. Special Court shall try cases in camera where child’s mother, father or any other person on whom the child has trust or confidence is present;

 

Monitoring of the implementation of the Act

The Act shall be properly followed, to ensure this National Child Rights Protection Commission and State commission for Protection of Child Rights is formed. For the protection of child rights, National Child Rights Protection Commission (N.C.P.C.R.) was established during March 2007 under Protection of Child Rights Act, 2005.

HELPLINE:

As regards other measures, what is of paramount importance is that to report a child abuse, calls is to be made on a dedicated number 1098, Or BACHPAN BACHAO ANDOLAN HELPLINE NUMBER 18001027222

 

APPOINTMENT OF SUPPORT PERSON

The POCSO Rules, 4(7) ordains that the Child Welfare Committee may provide a support person with a view to aid or render assistance to child through the process of investigation and it is the responsibility of the police to keep the support person informed about the developments including the arrest of the accused, the applications filed and other court proceedings. It is a matter of concern, though, that most of the orders of the special court does not reflect the appointment of a support person. The role of support person cannot be overstated, as the support person portrays the circumstances of a child its family situation, vulnerabilities etc to the Special court designated for this purpose to make an apt decision.

Allahabad High Court in a matter captioned as Junaid Vs State Of Uttar Pradesh And Another, CRIMINAL MISC. BAIL APPLICATION No. - 46998 of 2020 | 09-07-2021 relating to POCSO Act ,2012, has observed that the court has to correlate and balance the mandate of statutory rights of the victim, with the imperative of constitutional liberties of the accused, and the silences of the legislature have to be interpreted by the courts.

Relating to Bail application and its time bound disposal, in the above context, therefore, following directions were issued:

The directions are as under:

(i)              Notice of bail application by the local police or Special Juvenile Police Unit (SJPU) upon the Child Welfare Committee (CWC) should be served within three days from the date of service of notice of bail application upon the office of the Government Advocate at the High Court. 

(ii)         The time period for the CWC to create assessment report and identify the guardian whom the child trusts or to nominate a support person best suited to protect the best interests of the child and receive bail notice on its behalf, should be fixed within 3 days from date of lodging of FIR, the Bench said.

(iii)          The District Legal Services Authority as well as the High Court Legal Services Committee should provide legal aid within five days from receipt of notice of bail application, before the hearing of the bail application in the High Court and District Court respectively. 

(iv)          the time period for maturation of a bail application under POCSO remains undefined, still, the authorities are obligated to perform their duties in a reasonable time frame. 

(v)            The High court in administrative side may consider the feasibility of creating specific rules for bail maturation or the time period for serving advance notice upon the Government Advocate and other connected issues.

(vi)          The victim/child and its parents are not joined as parties to bail applications by name, other personal details of the child should also not be stated in the bail application. 

(vii)        The High Court has laid down a timeline for maturation of a bail application in POCSO cases, stating that information of crime is to be given by local police/SJPU to the Child Welfare Committee within 24 hours after report of crime u/s 19(6) of the POCSO Act. 

(viii)      The time period for the CWC to create assessment report and identify the guardian, whom the child trusts or to nominate a support person best suited to protect the best interests of the child and receive bail notice on its behalf, should be fixed within 3 days from date of lodging of FIR.

(ix)           The notice of bail application by the local police or SJPU upon CWC should be served within three days from the date of service of notice of bail application upon the office of the Government Advocate at the High Court. 

(x)             That District Legal Services Authority as well as High Court Legal Services Committee should provide legal aid within five days from receipt of notice of bail application, before the hearing of the bail application in the High Court and District Court respectively. 

(xi)           That the timelines of duties have to be strictly adhered to by the respective authorities and failure of its compliance will be proceeded in accordance with the law. 

(xii)         That the Court directed that the DGP, UP Police will create a framework and standard operating procedures for the State, and the District Magistrate of the concerned district will ensure that the reports as directed in the order are produced by the CWC before the Court when the bail application is placed in Court and that action is taken against those who default. 

 

The judgment rendered by hon’ble Supreme Court in APARNA BHAT & ORS.VERSUS STATE OF MADHYA PRADESH & ANR is worth analysis.

 

(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;

(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;

(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;

(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;

(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;

(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and

(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.

Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their  children, their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

 

As far as the training and sensitization of judges and lawyers, including public prosecutors goes, the Supreme Court mandates that a module on gender sensitization be included, as part of the foundational training of every judge. This module must aim at imparting techniques for judges to be more sensitive in hearing and deciding cases of sexual assault, and eliminating entrenched social bias, especially misogyny. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. Equally, the use of language and appropriate words and phrases should be emphasized as part of this training. In paragraph no. 47 of the judgment, the hon’ble Supreme Court has directed that:

The National Judicial Academy is hereby requested to devise, speedily, the necessary inputs which have to be made part of the training of young judges, as well as form part of judges’ continuing education with respect to gender sensitization, with adequate awareness programs regarding stereotyping and unconscious biases that can creep into judicial reasoning. The syllabi and content of such courses shall be framed after necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields, preferably within three months. The course should emphasize upon the relevant factors to be considered, and importantly, what should be avoided during court hearings and never enter judicial reasoning. Public Prosecutors and Standing Counsel too should undergo mandatory training in this regard. The training program, its content and duration shall be developed by the National Judicial Academy, in consultation with State academies. The course should contain topics such as appropriate court-examination and conduct and what is to be avoided”.

 

The hon’ble Supreme Court has also called upon the Bar Council of India (BCI) to consult subject experts and circulate a paper for discussion with law faculties and colleges/universities in regard to courses that should be taught at the undergraduate level, in the LL.B program. The BCI shall also require topics on sexual offences and gender sensitization to be mandatorily included in the syllabus for the All India Bar Examination.

The hon’ble Supreme Court has further opined that each High Court should, with the help of relevant experts, formulate a module on judicial sensitivity to sexual offences, to be tested in the Judicial Services Examination.

CONCLUSION

What is a grim reminder is that despite the claim of human, being a unique race in its wisdom and expertise, as also the fact that the human is a classical example of social animal and evolved race, but when crime in general and against minor in particular are noticed and the enactment such as POCSO was enacted is an iteration that society has not taught enough at least to such class of human. The extra- ordinary situation necessitates extra-ordinary measures, alright, and therefore, the POCSO Act 2012 is enacted. However, a great deal shall depend upon the enforcement agencies and courts of law, the pleaders, judges, Child Welfare Committee constituted in this regard and at last but not the least, collective outlook of society to gradually weed out the crime against the child.

                                                                        Anil K Khaware

                                                                        Founder & Sr Associate

Societylawandjustice.com