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IN THE HIGH COURT OF DELHI AT NEW DELHI
GITA MITTAL & R.K.GAUBA, JJ.
GAYA PRASAD PAL @ MUKESH – Appellant
Versus
STATE – Respondent
CRL.A. 538 of 2016
Decided On : 09-12-2016
Criminal Procedure Code, 1973 - Section 357A - Protection of Children from Sexual Offences Act, 2012 - Section 28, 33(8) - Protection of Children from Sexual Offences Rules, 2012 - Rule 7 - Sexual offences - Special Court - Jurisdiction - FIR was registered for investigation into an offence under the POCSO Act - Charge-sheet was submitted by the police under Section 28 of the POCSO Act - Special Court took cognizance - Right through to the stage of order on sentence passed trial court described the power and jurisdiction exercised by it to be that of an Additional Sessions Judge - There is no reference that the trial court was conscious that the jurisdiction it was exercising in the case at hand was that of a Special Court created under the POCSO Act - Judicial officers shall always bear in mind the jurisdiction they are exercising in the cases brought before them and properly describe the power, designation and jurisdiction in the proceedings.
Criminal Procedure Code, 1973 - Section 437-A - Sexual offence - Conviction - Personal bond - Legality of - Appellant was arrested on 18.10.2013 - He has remained in custody ever since - He was sentenced to life imprisonment and directed to be sent to prison under the conviction warrant - Calling to furnish personal bond which had even been "accepted" in terms of Section 437-A Cr.P.C - Held, there was no occasion for Section 437-A to be applied.
Penal Code, 1860 - Section 354, 376 - Protection of Children from Sexual Offences Act, 2012 - Section 4, 42 - Sentence - Life imprisonment - Scope of - Sentence of imprisonment for life awarded to the appellant for the offence under Section 376(2) IPC shall mean and be enforced as imprisonment for the remainder of his natural life - Directing any of the sentences to run consecutively is rendered redundant.
Protection of Children from Sexual Offences Act, 2012 - Sections 4, 5, 7, 28, 42 - Criminal Procedure Code, 1973 - Section 173 - Penal Code, 1860 - Sections 354A, 376 and 506 - Forcible sexual intercourse - Stepdaughter less-than-14 years' - Making her pregnant - Subjecting her to criminal intimidation - Conviction - Acts constituting the offence of "aggravated penetrative sexual assault" was committed by the appellant in May, 2013 - Provisions contained in Sections 375 and 376 IPC amended with effect from 3.2.2013 would apply - Appellant is a relative and he was in a position of trust and authority vis-à-vis the prosecutrix having control and dominance over her - Prosecutrix was under 16 years' of age - Case would also attract the prescription of punishment in terms of Section 376 (2) (f), (i) and (k) IPC.
Protection of Children from Sexual Offences Act, 2012 - Sections 4, 5, 7, 28, 42 - Penal Code, 1860 - Sections 354A, 376 and 506 - Acts of assault - Criminal force - Application of POCSO Act, - Use of criminal force actuated by the intent to outrage the modesty of the prosecutrix - Loose language used by the trial court in framing of charge - Since a charge under Section 376 IPC was framed - It being a graver offence the corresponding offence under POCSO Act, the error in the context of the charge relatable to the latter would be inconsequential - Held, failure on the part of the trial judge in invoking offence under Section 6 of POCSO Act at the stage of framing of the charge will not come in the way of recording conviction under Section 376 (2) (f), (i) and (k) IPC.
Protection of Children from Sexual Offences Act, 2012 - Section 33(8) - Criminal Procedure Code, 1908 - Sections 357 and 357A - Sexual Offences - Compensation - There are two victims of crime - Child and the baby born out of offence - Case demands a compensation which is not only with respect to the loss suffered but also injury /aftermath as a result of crime - Compensation of Rs. 13 Lacs is awarded to the victim - Compensation of Rs. 2 lacs is awarded from Delhi State Legal Services Authority
Protection of Children from Sexual Offences Act, 2012 - Section 33(7) - Penal Code, 1860 - Section 228 A IPC - Sexual offences - Disclosure of identity - Compliance - Disclosure of identity of victims of sexual offences - Improper disclosure of the identity of the victim of such offences entails sanction in penal law - All the trial courts shall ensure that the identity of the victim in cases involving sexual offences shall not be disclosed anywhere on judicial record - Names shall be referred by pseudonyms in accordance with law.
Key Points: - (!) (!) (!) (!) - (!) (!) (!) (!) - (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
R.K. GAUBA, J.
1. The appellant stands convicted and is aggrieved by judgment dated 15th October, 2015 (in Sessions Case No. 163/2013) on the charge with the gravamen of he having assaulted and committed forcible sexual intercourse with his less-than-14 years’ old step-daughter making her pregnant with his child and subjecting her to criminal intimidation. The trial held in the court of Additional Sessions Judge, also designated as Special Court under Section 28 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) for New Delhi district, had arisen out of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C), submitted by Station House Officer (SHO) of Police Station Vasant Vihar (the police station) on 12.11.2013, upon conclusion of investigation into first information report (FIR) No. 458/2013. The Special Court, by its order dated 12.11.2013, upon perusal of the complaint and other documents submitted with the said report (charge-sheet), had taken cognizance of offences punishable under Sections 354A, 376 and 506 of Indian Penal Code, 1860 (IPC) read with Sections 4 and 5 of POCSO Act. The trial judge by proceedings recorded on 10.01.2014 put the appellant on trial on charge for offences under Sections 354,376,506 IPC read with Section 4 of POCSO Act. On the conclusion of trial, the impugned judgment dated 15th October, 2015 was passed holding the appellant guilty, as charged, for offences punishable under Sections 354 and 506 IPC besides under Section 4 of POCSO Act read with Section 376 IPC. By subsequent order dated 5th January, 2016, separate punishments were awarded against the appellant for offences punishable under Section 376 IPC, Section 6 POCSO Act, Section 354 IPC and Section 506 IPC. In addition, the trial judge directed compensation to be paid specifying the amounts at Rs. 13 lakhs payable with reference to Section 33 (8) of POCSO Act read with Rule 7 (2) of Protection of Children from Sexual Offences Rules, 2012 (POCSO Rules) besides Rs.2 lakhs recommended under Section 357-A Cr.P.C. read with POCSO Rules.
2. By the appeal at hand, the appellant impugns not only his conviction but also the order on sentence.
SOME CONCERNS
3. Before we deal with the issues raised before us, lament on some aspects of the case needs to be expressed at the very outset. On the material placed before us it is beyond the pale of any doubt or controversy that the victim of the offences statedly committed by the appellant was a ‘child’ within the meaning of the expression defined in Section 2(1)(d) of POCSO Act, she being below the age of 18 years at the relevant point of time. Given the nature of offences involved, she is entitled to the protection envisaged by law in Section 33(7) of POCSO Act. To put it simply, the special court was duty bound to ensure that her identity was “not disclosed at any time”. As we shall note later, this precaution was given a go-by during the proceedings before the trial judge more than once.
4. As we shall also see elaborately in due course, the graver offence defined by Section 5 of POCSO Act (“aggravated penetrative sexual assault”), punishable under Section 6, though mentioned in the order of cognizance, was forgotten when the formal charge was framed. The order on framing charge is too cryptic to gauge the reasons why a lesser offence under Section 4 of POCSO Act (“penetrative sexual assault”) was preferred. The impugned judgment was passed by another presiding officer holding the appellant guilty as charged. But, the order on sentence was pronounced by her successor who, for unexplained reasons, chose to mete out punishment to the appellant for the graver offence (Section 6 of POCSO Act) for which there was neither a charge laid nor conviction recorded.
5. The order on sentence reveals gross confusion prevailing in the mind of the trial judge with regard to the inter-play of various provisions dealing with the issue of compensation in such cases as at han
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