Punishing An Adolescent Boy Who Enters Into A Relationship With A Minor Girl Was Not At All The Objective Of POCSO Act: Madras High Court

 Case Ref: Vijayalakshmi and another -vs- state of tamilnadu & another - madras hc - J N.ANAND VENKATESH

The Defacto Complainant/mother and the victim girl jointly filed petition seeking to quash the criminal proceedings pending against the accused boy, who is facing trial before the Court below for offences under Section 366 of the Indian Penal Code, Section 6 of the POSCO Act and Section 9 of the Prohibition of the Child Marriage Act

The victim girl is well known to the accused/boy and they were in love with each other. Ultimately, they decided to get married and went away from their respective homes and a police complaint is filed and the same has now resulted in criminal proceedings against accused.

In Sabari v. Inspector of Police reported in 2019 (3) MLJ Crl 110, had discussed in detail about the cases in which youths of the age group of 16 to 18 years are involved in love affairs and how in some cases ultimately end up in a criminal case booked for an offence under the POSCO Act.

The relevant portions alert to youth and suggest legislature in Sabari vs Inspector of Police judgment are extracted here under:

• 26) In addition to the above, this Court is of the view that 'warning' of attraction of POCSO Act must be displayed before screening of any film, which have teenage characters suggesting relationship between boy and girl." 
  
• 29) "..........The Act can be amended to the effect that the age of the offender ought not to be more than five years or so than the consensual victim girl of 16 years or more. So that the impressionable age of the victim girl cannot be taken advantage of by a person who is much older and crossed the age of presumable infatuation or innocence”.

 

    A reading of the Statement of Objects and Reasons of the POCSO Act would show that the Act was brought into force to protect children from offences of sexual assault, sexual harassment and pornography, pursuant to Article 15 of the Constitution of India, 1950 and the Convention on the Rights of the Child.

   To quash the criminal proceedings involving non-compoundable offences pending against the accused. The Hon'ble Supreme Court has laid down the guidelines in the case of Parbathbhai Aahir @ Parbathbhai Vs. State of Gujrath, reported in 2017 9 SCC 641 and in case of The State of Madhya Pradesh Vs. Dhruv Gurjar and Another reported in (2019) 2 MLJ Crl 10, has given sufficient guidelines that must be taken into consideration by this Court while exercising its jurisdiction under Section 482 of Cr.P.C, to quash non-compoundable offences. One very important test that has been laid down is that the Court must necessarily examine if the crime in question is purely individual in nature or a crime against the society with overriding public interest. The Hon'ble Supreme Court has held that offences against the society with overriding public interest even if it gets settled between the parties, cannot be quashed.

Here, the offences in question are purely individual/personal in nature. It involves the minor girl and the adolescent boy and their respective families only. It involves the future of two young persons who are still in their early twenties. The boy is working as an Auto driver to eke his livelihood. Quashing the proceedings, will not affect any overriding public interest in this case and it will in fact pave way for the minor girl and the boy to settle down in their life and look for better future prospects. No useful purpose will be served in continuing with the criminal proceedings and keeping these proceedings pending will only swell the mental agony of the victim girl and her mother and not to forget the adolescent boy as well. 

 

In this context, the Madras High Court has quashed the criminal proceedings in Special S.C.No.24 of 2018 on the file of the learned Sessions Judge, Mahila Court (Fast Track Mahila Court) Erode in exercise of its jurisdiction under Section 482 of the Criminal Procedure Code, 1973. 

 

As long as the marriage subsist, the wife is entitled to receive the PF benefits even if she desserted her husband - Bombay High Court

The Bombay High Court held that when the marriage is legally valid, wife is entitled to the Provident Fund and other related benefits of the husband. The HC also said that just because a woman fails to perform the duties of a mother and a wife, she cannot be denied her entitlement.

Bench of Justices Atul Chandurkar and Nitin Suryawanshi have pronounced the ruling by while upholding a family court's orders that wife has entitlement in the PF benefits of her husband though the wife desserted her husband.

The husband had deleted the name of his first wife from all the PF and other related schemes and had nominated his second wife for these benefits. Amid all these disputes, the husband had not given divorce to the first wife and his first marriage subsisted.The bench said that the second marriage was thus illegal since the first marriage continued to subsist even as the couple lived separately from the past 23 years.

Having heard the contentions of both the sides, the judges referred to the provisions of the General Provident Fund (Central Services) Rules, 1960, which notifies as to who is entitled to these benefits. "Taking into consideration the definition of ‘family’ in the rules, only a legally wedded wife can be said to be included in the definition of family."

"Since the husband has performed a second marriage, while his first marriage was subsisting, the second marriage is void and the second wife thus cannot be said to be legally wedded one," the bench held. Further, the bench said that even if the couple leading life separately for more than 23 years, "still that itself does not dissolve."

The husband's contention was that the first wife was leading an adulterous life and has failed to perform the duties of a mother and of a wife and she deserted him over 23 years has forced him to perform a second marriage.

"All these allegations are unacceptable and they do not further the case of the husband in any manner, in absence of declaration and dissolution of his marriage with the first wife by decree of a competent Civil Court," the judges held.

The bench held that "During the subsistence of the first marriage, he has performed a second marriage, which cannot be said to be legal. The allegations of adultery have no relevance in the present case as the same does not in any manner affect the merits of the claim by the first wife,"

 

Unconstitutionality Of Publishing Of Marriage Notices Under Special Marriage Act

The Special Marriage Act, 1954 provides the registration of inter-religious marriages. The petitioner, Nandini Praveen, a law student, filed a writ petition under Article 32 of the Constitution of India before the Supreme Court challenging Section 6(2), 6(3), 7, 8, 9 and 10 of the Special Marriage Act, 1954 (SMA).

 

The petitioner in her PIL stated that the conditions under Section 4 of SMA are fulfilled through Section 11 of SMA. The section 11 of SMA requires three parties to sign a declaration that the intended marriage would not violate any of the provisions of Section 4. Hence there is no need to exercise the impugned provisions.

 

 

Accused is not entitled to acquittal - when the complainant is the investigating officer - Supreme Court

Case Title: Mukesh Singh -Vs- State(Narcotics Branch of Delhi) - Supreme Court of India 

The five-judge bench of the Supreme Court has held that when the complaint and the investigating officer are one and the same, the accused is not entitled to acquittal. The Supreme Court has examined, analysed and compared some case laws deciding varying legal points and to substantiate same the relevant provisions of CrPC are as follows:

Section 154 Cr.P.C. provides that every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction. 

Section 156 Cr.P.C. provides that any officer in charge of a police station may investigate any cognizable offence without the order of a Magistrate. It further provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Therefore, as such, a duty is cast on an officer in charge of a police station to reduce the information in writing relating to commission of a cognizable offence and thereafter to investigate the same. 

Section 157 Cr.P.C. specifically provides that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the offender. 

The Supreme Court listed out numerous cases where the trial was vitiated for the reason that the informant and the investigating officer was the same person. In the case of Mohan Lal -Vs- State of Punjab (2018) 17 SCC 627 held that the trial is vitiated because the investigation is conducted by the police officer and who is also the complainant and the accused is entitled to acquittal. But the decisions in these cases have to be treated confined to their own facts and cannot be based solely on the fact that the investigation officer himself is the informant against the accused.

 

"It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal; II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled."

 

Power of Speaker to disqualify the State Assembly and the Parliament member and the Supreme Court Recommendation

The Supreme Court on Tuesday delivered a verdict two important declarations. 

1) The three-judge bench of Supreme held that the Speaker of the State assembly or the Parliament has power to decide on disqualification petitions for members within three months unless or otherwise there exists an extraordinary circumstance. Further courts have the powers to intervene on disqualification petition if the proceedings are delayed beyond the reasonable time limit. 

What the law does not prohibit is the court enforcing disqualification proceedings, which are quasi-judicial in character, when they are unnecessarily delayed.

2) The Supreme Court recommended the Parliament strongly to remove the Speakers’ disqualification powers and forming an independent tribunal to take up these petitions. The reason for this suggestion is that Speakers invariably belong to the ruling parties and they might act in a partisan manner. 

 

Further the court strongly recommended that Parliament should seriously consider taking away disqualification powers from the Speakers. These powers could be given to an independent tribunal headed by a former Supreme Court judge or a former chief justice of a High Court or form “some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially”.

Case Title : KEISHAM MEGHACHANDRA SINGH -Vs- THE HON’BLE SPEAKER MANIPUR LEGISLATIVE ASSEMBLY & ORS.