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Will you marry her? Supreme Court asks the man accused of raping a minor and grants him protection from arrest [READ ORDER]

The Supreme Court on 1st, March 2021 asked a 23-year-old man who stands accused of raping a minor girl when she was aged around 16 years whether he will marry her. 

By: Khushi Yadav, FIMT College, GGSIP University.

A three-judge bench headed by Chief Justice of India SA Bobde, Justice Bopanna, and Justice Ramasubramanian dismissed the Special Leave Petition giving the accused liberty to seek regular bail and the bench also granted the petitioner protection from arrest for four weeks. 

The CJI while hearing a special leave petition by the man who is now a government servant in Maharashtra, against an order of the Bombay HC (Aurangabad Bench) which canceled his anticipatory bail.

CJI Bobde asked the petitioner’s lawyer when the matter was taken, “Will you marry her?”

The lawyer pleaded that his client was a government servant who will be suspended from service if arrested in the case. The Petitioner presently aged 23 years was accused of raping a 16-year-old girl during the years 2014-15. 

The CJI replied, “You should have thought before seducing and raping the young girl, you know, you are a government servant. We are not forcing you to marry. Let us know if you will. Otherwise, you will say we are forcing you to marry.” 

When the case was retaken after other matters, a lawyer informed that marriage was not possible as a petitioner had married someone else. Also, the lawyer added petitioner initially wanted to marry her but she refused. 

The FIR was lodged against the petitioner, in 2019, under Sections 376, 417, and 506 of the Indian Penal Code, 1860 and under Sections 4 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 by the girl.

The Applicant alleged that she was studying in ninth standard in the years 2014-15 when the respondent started stalking her. He was her distant relative and used to keep coming to her house. She further alleged that during that period he clandestinely entered into the house from a backside door and committed rape on her. He also threatened her of consequences if the incident was disclosed. She further alleged that even thereafter he continuously stalked her and threatened her. She alleges that he used to come frequently to her house and used to have sexual intercourse. She also stated that sometimes he used contraceptives since and she was afraid, she never disclosed this fact to anybody. 

She further alleges that when she, along with a Social worker and her mother, went to Lodge a report with the Police Station of respondent 2, who persuaded them not to launch the complaint by promising that she would accept her as her daughter-in-law. 

The Sessions Court granted the accused anticipatory bail then the girl approached the Bombay High Court seeking its cancellation. 

The Bombay High Court observed, “One can easily conclude that going by the allegations responded number two has sexually exploited the applicant for a sufficiently long period since she was around 16 years of age the papers of Investigation would further corroborate the applicant’s version about the execution of writing on a stamp paper of rupees 500 responder number two and is Family seem to be so influential that they could get executed this writing from the applicant and her widowed mother the very fact that they could get such writing executed is indicative and it’s sufficient to infer the respondent 2 had indulged in sex with the applicant. Even when she was merely 16 years of. Pertinently, writing also bears his signature and signature of his mother.” 

The High Court also said that “The impugned order passed by the Learned Additional Sessions Judge is indeed atrocious. The only reason that can be found in the impugned order is the approach of the Learned judge from such reasoning clearly shows his utter lack of sensitivity in such serious matters in spite of having noted that the applicant was still a minor. When responded number two had sexually exploited her and in spite of observing that a consent was immaterial. He has concluded that it was a consensual relation. Astonishingly, Merely because you had mentioned in the FIR about the use of contraceptives. The judge has jumped to the conclusion that she was having sufficient maturity. The height has committed by the Learned Additional Sessions Judge even to record an observation that there is possibility of false implication of respondent no. 2. Such an approach is a clear indication of the Learned judge utterly lacks competence. It is indeed a matter which deserves a serious consideration. The Learned Judge has clearly deprived the investigating officer to of an opportunity to custodial interrogations for number two by granting anticipatory bail merely for asking.”
The High Court went further to say that, “This is a case where it can easily be concluded that the learn additional Sessions Judge has not exercised the discretion vested in him judiciously. Order being clearly perverse, arbitrary, and capricious the application deserves to be allowed. And the impact the order granting anticipatory bail to respond and number two is liable to be quashed and set aside.”

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There Should Be Screening of Programs on OTT Platforms, At Times They Are Showing Pornography: Supreme Court in Aparna Purohit Bail Plea

The Supreme Court said there should be screening of OTT platforms like Prime Video, Netflix.

By: Shailvi Gupta, Banasthali university, Jaipur.

The observation was made in the anticipatory bail plea filed by India Head of Amazon Prime Video, Aparna Purohit in the case registered against her in connection with the web series ‘Tandav’.

At the outset of today’s hearing, Senior Advocate Mukul Rohatgi described the case filed against Purohit as shocking“, stating that publicity seekers around the country were filing such complaints.

Justice Ashok Bhushan said to Rohatgi, 

“Please submit the regulations on OTT platforms. We are of the view that there should be some screening of such programs. At times they are showing pornography too.”

Agreeing with the Court’s observation, Solicitor General Tushar Mehta added, “They are showing filthy things with abuses too.”

Rohatgi then submitted that the Allahabad High Court order rejecting Purohit’s bail plea was not based on the Centre’s newly notified OTT regulations.

“It’s about freedom of speech and expression,” Rohatgi said.

The Court replied, “It’s about creating balance.” 

Despite Rohatgi’s protestations that the OTT regulations were not applicable in this case, the Court adjourned the matter.

SG Mehta was asked to submit and circulate the Information Technology (Guidelines for intermediaries and Digital Media Ethics Code) Rules, 2021, which provides for regulation of content on OTT platforms.

The Allahabad High Court had recently rejected Purohit’s bail plea, noting in its order that the sentiments of majority community have been hurt by display of the characters of their faith in disrespectful manner.

Purohit had approached the High Court after an First Information Report (FIR) was filed against her by the Uttar Pradesh Police for offences under Sections 153A (promoting enmity between different groups), 295 (defiling place of worship), 295A (hurting religious sentiments), 505(1)(b), 505(2) (statements conducive to public mischief) of Indian Penal Code (IPC) and Sections 66 and 67 of the Information Technology Act.

FIRs were also registered against Director of Tandav, Ali Abbas Zafar, Producer Himanshu Mehra and Writer Gaurav Solanki.

The High Court had observed that the allegations for committing offences u/s 153-A(b) IPC were fully made out since the act of the applicant is prejudicial to the maintenance of harmony between different religious, social and communal groups. It was noted that the scenes filmed in the series intentionally used “the names of Hindu Gods and sage to convey an insidious message.”

The High Court had also opined that there is an onerous duty on every citizen to respect the feelings of the people of other faiths even while making a work of fiction.

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Writ jurisdiction under Article 226 can be called off to quash FIR if there is disrespect to the process of law: Supreme Court

The Supreme Court observed that a High Court, invoking its powers under Article 226 of the Constitution of India, can quash an FIR if the same is found that there is abuse of process of law.

By: Shailvi Gupta, Banasthali University, Jaipur.

In this case, a writ petition preferred by the accused for quashing the First Information Report registered under Sections 420/406 of the Indian Penal Code, 1860 against them was dismissed by the Allahabad High Court. The accused’s contention was that the FIR against him is a counterblast to the cheque bounce complaint filed against the complainant. 

While allowing the appeal, the bench comprising Justices DY Chandrachud and MR Shah observed that the inherent jurisdiction under Section 482 Cr.P.C. and/or under Article 226 of the Constitution is designed to achieve salutary purpose that criminal proceedings ought not to be permitted to degenerate into a weapon of harassment.

“If the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. When the Court is satisfied that criminal proceedings amount to an abuse of process of law or that it amounts to bringing pressure upon accused, in exercise of inherent powers, such proceedings can be quashed. As held by this Court in the case of Parbatbhai Aahir v.State of Gujarat (2017) 9 SCC 641, Section 482 Cr.P.C. is prefaced with an overriding provision. The statute saves the inherent power of the High Court, as a superior court, to make such orders as are necessary (i) to prevent an abuse of the process of any Court; or (ii) otherwise to secure the ends of justice. Same are the powers with the High Court, when it exercises the powers under Article 226 of the Constitution.”, the bench stated.

Taking note of the facts of the case, the bench found that the subsequent FIR filed by the original complainant can be said to be an abuse of process of law and the same to be bringing pressure on the accused. “When the impugned FIR is nothing but an abuse of process of law and to harass the appellants-accused, we are of the opinion that the High Court ought to have exercised the powers under Article 226 of the Constitution of India/482 Cr.P.C. and ought to have quashed the impugned FIR to secure the ends of justice“, the bench observed while allowing the appeal.

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Due to the welfare of the daughter, the custody cannot be achieved until the matter in court is cleared.

By: Sanidhya Sharma, O.P. Jindal Global University.

A woman named Gyanmati Kushwaha is held responsible and is accused by the Allahabad High Court for the murder of her husband. When there was a matter of custody of the child, who is of two years old, the Allahabad High Court refused to give the custody of the child to the mother who was accused of murdering the child’s father.

She will not get this custody unless her case is resolved in the eyes of the court, only then she will have the liberty that she can seek custody.

A petition was made by the petitioner of the court who was the mother, Gyanmati Kushwaha. This petition was for the writ of habeas corpus which is used for bringing the other detainee to present before the court to determine the fact that the imprisonment of the person is correct in law or not. The mother asked the court for her minor, two years old daughter to be presented or produced before the court and demanded that the daughter should be commended in the care and custody of the mother, but the court refused to this demand. 

The Bench of Justice J. J. Munir, gave the daughter’s mother the liberty to seek custody for her daughter after she is acquitted by the judgement which could either be in doubt or could be otherwise. The court stated, “it would be irreversibly unsettling and debilitating in her formative years. It many even expose her to insurmountable trauma if she witnesses her mother, whom she is bonded with, convicted in the case of her father’s mother.”  the court stated further that there is a possibility and there is also not, of conviction being remote but it can happen. The court said, “this court assumes that the possibility of conviction may be remote or not so remote, but the possibility is there. The existence of this possibility and the adverse impact of the event, if it were to come to pass, would far outweigh the transitory benefit the minor would derive from her mother’s care and company.” This was observed by the Court.”

The mother is currently facing trials as a co-accused in this case that is related to her husband’s murder. 

The court also stated, “This facet of the matter apart, the possibility that the mother might truly be a conspirator in her husband’s murder, predicates a personality which would not be beneficial for the minor in grooming her about her moral values – a very important aspect of a child’s welfare. On the other hand, if the mother is innocent and is acquitted, the loss, the minor would suffer on account of deprivation of her mother’s care and custody, cannot be re-compensated, but nevertheless, it is a reverse that must be accepted for the minor’s surer welfare, in preference to a contingent better, fraught with risk.”

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Bombay High Court grants bail to rape accused after parties settle the dispute [READ ORDER]

“Allegations contained in the complaint, which reflect a consensual relationship and since the C.R. invokes Sections 406 and 420 of IPC, the applicant is entitled for interim protection from arrest”. – Bombay High Court

By: Anish Khondo, 5th Year Law Student at Christ University, Bangalore.

The applicant in the case is a 51-year-old Police Constable, seeking protection in anticipation of his arrest.

The facts were that the accused had told the prosecutrix that he will marry her right after he divorced his first wife. Later in the statement given by the prosecutrix, it was stated that the two had acquaintance culminated into friendship, which went ahead and a relationship was established which also led to physical indulgence and the complaint give details of the same.

But later the council for prosecutrix Advocate Arjun Kadam mentioned that the accused was not interested in deserting his family and in fact, shares a cordial relationship with his wife, mother and son. Also, that “The allegations are also levelled to the effect that she had spent an amount of Rs.1,70,000/- in form of cash and, therefore, the offence came to be registered”.

Later the applicant was charged under offences under Sections 376 (2) (punishment for rape), 406 (criminal breach of trust), 420 (cheating), 504 (breach of peace), and 506 (criminal intimidation) of the Indian Penal Code, 1860, as well as Sections 66(E) (violation of privacy) and 67(A) (transmitting material electronically) of the Information Technology Act.

The accused had also filed for a second anticipatory bail application before the High Court in December 2020 and the prosecutrix was also made a party in the second anticipatory bail application and was against the accused.

The Court after analyzing the facts noted “prima facie reading of the complaint reveals that the incident revolves around two adults, but the impression given by the applicant is to the effect that he is estranged from his wife and he was running a shop in the Fort area”.

Then, on the last day of the trial, the learned counsel for the applicant made a statement that the parties have now settled the discord amongst themselves and they are likely to approach the Division Bench for quashing the FIR.

Justice Bharati Dangre, dismissed the case after stating that “In light of the said petition being instituted and in the wake of the allegations contained in the complaint, which reflect a consensual relationship and since the C.R. invokes Sections 406 and 420 of IPC, the applicant is entitled for interim protection from arrest”.

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