Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S.Sonak, J.
Abhay Kudchadkar – Appellant
Versus
Officer-In-Charge/Police Inspector, Maina Curtorim Police Station – Respondent
Criminal Writ Petition No. 44 of 2021
Decided On : 20-01-2022
A.D.Bhobe, Advocate, Pravin Faldessai, Advocate, Sanman Keny, Advocate
The absence of mens rea and the over-enthusiasm of the petitioner to highlight crimes against minor children influenced the court's decision to quash the criminal proceedings.
Headnote:
Sec. 228-A IPC - Protection of Children from Sexual Offences Act, 2012 - [Sec. 228-A IPC, Sec. 23(4) POCSO Act] - The court discussed the offense of disclosing the identity of a minor victim girl and the provisions of the POCSO Act. It highlighted the absence of mens rea and the over-enthusiasm of the petitioner to highlight crimes against minor children, leading to the quashing of the criminal proceedings.
Fact of the Case:
The petitioner forwarded a message containing the photograph of a minor victim girl who was raped, leading to the filing of a charge-sheet against the petitioner under Sec. 228-A of IPC and Sec. 23(4) of the POCSO Act.
Finding of the Court:
The court found that there was no mens rea on the part of the petitioner and that the message was forwarded due to the petitioner's over-enthusiasm to highlight crimes against minor children. It also acknowledged the offer of compensation by the petitioner to the minor victim girl.
Issues: The issues revolved around the disclosure of the identity of the minor victim girl, the absence of mens rea, and the authority to compromise the matter with the petitioner.
Ratio Decidendi: The court emphasized the absence of mens rea and the over-enthusiasm of the petitioner, leading to the quashing of the criminal proceedings. It also recognized the need for compensation to the minor victim girl.
Final Decision: The petition was allowed, and the impugned order and criminal proceedings were quashed, subject to the petitioner depositing an amount of Rs.1,00,000.00 within four weeks.
JUDGMENT
1. Heard Mr. A. D. Bhobe, learned counsel for the petitioner, Mr. P. Faldessai, learned Additional Public Prosecutor for respondent Nos. 1 and 2, and Mr. S. Keny learned counsel for respondent No.3.
2. The petitioner, by instituting the present petition seeks to quash the order dtd. 17/2/2021 made by the learned Additional Sessions Judge, at Margao on the application for compounding, jointly filed by the petitioner and the complainant - respondent No.3 in the context of charge-sheet bearing No.69/2020.
3. In this case, the only allegation against the petitioner is that on 13/3/2020, the petitioner, on his WhatsApp group forwarded certain material containing the photograph of a minor victim girl who was raped. In the context of such rape, a case had been registered at Maina Curtorim Police Station. The allegation against the petitioner is that in doing this, he disclosed the identity of the minor victim girl and such disclosure is an offence punishable under Sec. 228-A of IPC punishable under Sec. 23(4) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
4. The message allegedly forwarded by the petitioner speaks about police arresting a 23 years person for allegedly raping the minor victim school girl. The message speaks about how the accused offered a lift to the victim girl on the pretext of dropping her home after school and taking her in the forest of Quepem and raped her. The message speaks about how the victim girl suffered an injury and was admitted to the hospital where she narrated the incident to the police. Finally, the message states that the accused has been booked under POCSO Act for kidnapping and raping the minor girl. The message forwarded by the accused incidentally has the photographs of the accused as well as the small victim girl in her school uniform. The name of the victim girl does not appear in the message.
5. The message and the accompanying post lament the increasing incidents of rape on minors in the State of Goa. This message was allegedly posted by the petitioner on the WhatsApp group by the name "Goa News Point" which is said to have about 181 participants.
6. No sooner than the above message was posted on the group some of the participants/members of the group posted comments advising the petitioner to delete this post because this might amount to revealing the identity of the minor victim girl. The petitioner, instead of deleting the message re-posted that he has only forwarded this message and therefore, let the person who originated this message be arrested. The petitioner also stated that the person who forward the message complaining about brutality in society should not be arrested but rather it is the rapists and other criminals that should be arrested.
7. Ultimately, one of the participants brought to the notice of the petitioner the contents of the Cybercrime Reporting Portal of the Ministry of Home Affairs which had clarified that online possession, posting and circulation of child pornography or rape/gang rape contents is a punishable offence. Even though the message forwarded by the petitioner had no child pornography contents, the petitioner, deleted his message.
8. Respondent No.3 -NGO however filed a complaint against the petitioner alleging commission of offence under Sec. 228- A of IPC punishable under Sec. 23(4) of POCSO Act. Based thereon FIR was registered against the petitioner which ultimately resulted in the filing of the charge-sheet against the petitioner.
9. On 17/2/2021, the petitioner and respondent No.3 - complainant filed a joint application before the learned Sessions Judge seeking to compound the matter by invoking the provisions of Sec. 320 of the Criminal Procedure Code. The learned Additional Sessions Judge dismissed this application by making the following order:-
" O Heard. The offences u/s 228A of the IPC and Sec. 23(4) of the POCSO Act are noncompoundable. Hence the application is rejected. Sd/- 17/02/2021 Addl. SJ, Margao."
10
