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IN THE HIGH COURT OF DELHI AT NEW DELHI
MANOJ KUMAR OHRI, J.
In the Matter of: Hari Dev Acharya @ Pranavanand and Others – Petitioners
Versus
State – Respondent
Crl. M.C. Nos. 6530 of 2018, 1521 of 2019, Crl. M.A. Nos. 50336 of 2018, 6039 of 2019, 14161, 14160 of 2021
Decided On : 12-11-2021
Indian Penal Code, 1860 - Section 377 - POCSO Act - Section 6, 10, 21 r/w 18 and 31 - Criminal Procedure Code, 1973 - Sections 161, 164, 223 and 482 - Unnatural offences - What persons may be charged jointly - Child victim had alleged that during his stay at the stated Gurukul, he was harassed for the last one and half month. It was further stated that on intervening night, Nikhil Arya, after awakening him, took him to teacher's room and sexually exploited him. Further stated that thereafter in presence of entire class, child victim was physically beaten with kicks, fist and punches. It was also stated that on 02.09.2017 between 11 a.m. to 12 p.m. when he visited the washroom, Nikhil was already present there. After gagging complainant's mouth, Nikhil committed the offence of sodomy. The complainant ran away from there and thereafter, Swami Pranavanand levelled allegations against him of stealing dry fruits and rusticated him from Gurukul. After going home, the child victim narrated the entire incident to his mother and the present FIR came be lodged - Whether Nikhil Arya and the present petitioners can be tried jointly in same FIR and also whether two offences can be clubbed would depend on meaning of expression “same transaction” as occurring in clause (d) of Section 223 Cr.P.C. - Whether two separate offences can be clubbed in one FIR.
Finding of the Court:
Offences committed by Nikhil Arya and the present petitioners have been committed in the course of “same transaction” and a joint trial is permissible. The reliance placed by learned Senior Counsel on the decision in Kamal Prasad Patade (Supra) is entirely misplaced as the said decision was passed in the facts of that case and the import of clause (d) of Section 223 Cr.P.C. was not considered therein. For the aforesaid reasons, the contention that firstly, the prosecution had to prove the main offence and only then the petitioners could be proceeded with, is untenable - Plain reading of clause (d) of Section 223 Cr.P.C. indicates that when different offences are committed by different persons during the course of “same transaction” they can be charged and tried together. In the present case, while the accused Nikhil Arya is alleged to have committed an offence under Section 377 IPC and Section 10 of the POCSO Act, the present petitioners are accused of not informing the concerned authorities about the said offence in spite of having knowledge about it and thus being guilty of committing the offence punishable under Section 21 read with Section 19 of the POCSO Act - it is apparent that one of the basic ingredients to fasten criminal liability on an accused for the offence punishable under the aforementioned Section is his having had “knowledge” of the commission of an offence under the POCSO Act, or likelihood thereof.
Result: Petitions dismissed.
JUDGMENT :
MANOJ KUMAR OHRI, J.
1. The above-noted petitions have been filed under Section 482 Cr.P.C. on behalf of the petitioners assailing the summoning order dated 22.11.2018 passed by the learned ASJ-01/Special Court (POCSO), South District, Saket Court, New Delhi in CIS/SC No. 220/18 as well as the supplementary charge-sheets filed on 22.05.2018 and 22.08.2018 in the aforesaid case.
2. Briefly stated the facts involved in the present case are that on a complaint lodged by the child victim/complainant on 04.09.2017, FIR No. 304/2017 came to be registered under Section 377 IPC and Section 10 of the POCSO Act against one Nikhil Arya and others. In this complaint, the child victim had alleged that during his stay at the stated Gurukul, he was harassed for the last one and half month. It was further stated that on the intervening night of 04/05.08.2017 at about 12:50 in the night, Nikhil Arya, after awakening him, took him to the teacher's room and sexually exploited him. The child victim immediately informed the same to one Raman and thereafter went to Police Station Hauz Khas. His mother was called to the police station at about 2:30 in the night and to avoid any insult, they entered into a compromise under the pressure of Rampal, Subhash, Pradeep, Bhupesh and Yogesh. It was stated that Raman, who had supported the complainant, was rusticated from the Gurukul. It was further stated that thereafter in presence of entire class, the child victim was physically beaten with kicks, fist and punches. It was also stated that on 02.09.2017 between 11 a.m. to 12 p.m. when he visited the washroom, Nikhil was already present there. After gagging the complainant's mouth, Nikhil committed the offence of sodomy. The complainant ran away from there and thereafter, Swami Pranavanand levelled allegations against him of stealing dry fruits and rusticated him from Gurukul. After going home, the child victim narrated the entire incident to his mother and the present FIR came be lodged.
3. After completion of investigation, a common charge-sheet came to be filed on 12.04.2018 against Nikhil Arya under Section 377 IPC and Section 6 of the POCSO Act. The names of Yogesh Kumar, Bhupesh Kumar, Pradeep Kumar, Rampal and Pranavanand were kept in Column No. 12. The statements of the child victim under Sections 161 Cr.P.C. and 164 Cr.P.C. were recorded, wherein he stated that he was forced to enter into the compromise dated 05.08.2017 with the accused persons in the Police Station. On the aspect of compromise, statement of ASI Hakam Singh was also recorded. Consequently, a supplementary charge-sheet was filed on 22.05.2018 and the five accused persons kept in Column No. 12 of the initial charge-sheet were transposed to Column No. 11 for the offence punishable under Section 21 of the POCSO Act. However, the name of accused Subhash Chander being inadvertently left out, another supplementary challan came to be filed on 22.08.2018 thereby transposing him from Column No. 12 in the initial charge-sheet to Column No. 11. In furtherance of the material placed on record, the Trial Court summoned the present petitioners along with co-accused Nikhil. Subsequently, the Investigating Officer seized the CCTV footage from the cameras installed in the Gurukul. On receipt of the FSL Report with respect to the CCTV footage, a third supplementary charge-sheet was filed on 11.04.2019 mentioning that as per the CCTV footage, the child victim had entered the washroom on 02.09.2017 at 11:30 a.m. and left the same at 11:46 p.m. It was also mentioned that Nikhil Arya could not be seen going to the washroom at this time on 02.09.2017. Instead, he was seen present in the Verandah at the relevant time and after that entering the office situated at a considerable distance from the washroom. It was further mentioned that he entered the office at 10:55:18 a.m. and left at about 11:47:37 a.m. It was also mentioned that the presence of the accused Nikhil Arya could not be established from
Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Sections 219 and 221 provide exceptions to this general rule. If a person falls....
The main legal point established in the judgment is that charges for distinct offenses must be tried separately unless they fall within the exceptions provided in the Criminal Procedure Code. The con....
(1) Joint trial is a matter of judicial discretion – Joint or separate trial must ordinarily be taken at outset of proceedings and for cogent reasons.(2) Mere discovery of error, irregularity or omis....
Joint trials are acceptable for closely related offences, but accused must demonstrate prejudice due to any procedural irregularities for a trial to be invalidated.
Prompt and proper reporting of commission of offence under POCSO Act is of utmost importance – Non-reporting of sexual assault against a minor child despite knowledge is a serious crime and more ofte....
Mandatory reporting of offences under the POCSO Act is crucial, and failure to report is punishable, emphasizing the seriousness of non-compliance.
The court upheld the conviction under POCSO Act based on the reliable testimony of the child victim, emphasizing that such testimony can alone sustain a conviction.
The main legal point established is that the duty to report offences under the POCSO Act requires actual knowledge or reason to believe, and mere information or suspicion is not sufficient to attribu....
Failure to promptly report knowledge of a sexual offence against a child constitutes an offence under the Protection of Children from Sexual Offences Act, 2012, and is punishable under Section 21.
Charges under POCSO can be framed without new allegations if based on existing evidence, emphasizing the seriousness of claims made against the accused.
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