Top News Headlines 29th Mar 2022: POCSO Victim Can Be Cross-examined By Prosecution (State) If She Turns Hostile

POCSO Victim Can Be Cross-examined By Prosecution (State) If She Turns Hostile: Karnataka HC

• In the case of State of Karnataka vs Somanna and ors. Justice Nagaprasanna of the Karnataka HC has held that a survivor of a case which falls under the ambit of POCSO Act may be cross-examined by the State if she turns hostile. 
• However, the Court also held that the cross-examination can be done only if it complies with the provisions of section 33 of the POCSO Act which mandates that while cross-examination is underway, the questions have to be addressed to the Court and the Court shall, in turn, put the same to the victim. 
• In the instant case, the allegations under the accused persons were that despite knowing that the victim is a minor, they married her off to the first accused, who was also aware of the fact that she is a child. The first accused also committed sexual assault on her many times. During the course of the trial, however, the victim had turned hostile. 
• Consequently, the State had sought permission from  the Court to cross-examine the victim upon her turning hostile, which was refused by the Court. Aggrieved, the State had approached the HC challenging this order of the trial Court. 
• The Counsel for the State argued that cross-examination of the victim is a right and this right cannot be taken away merely because the case falls under the ambit of POCSO. 
• The Court observed that the only issue which requires the Court’s consideration is whether the victim under POCSO can be cross-examined  once she turns hostile. 
• The Court observed that in view of Section 33(2) of the POCSO Act, the Special Public Prosecutor shall, while recording the examination-in-chef, cross-examination or re-examination of the victim, communicate the questions to be put to the child to the Court, and that the Court shall, in turn, put these questions to the child. Thus, the victim is permitted to be cross-examined under POCSO Act in her turning hostile, which shall also cover the situation under section 33(2) of the Act. 
• The HC also referred to the decision of the Apex Court in the case of Nipun Saxena vs Union of India (2019) SCC wherein the Court had observed that children and women particularly those who have been subjected to sexual assualt are so intimidated by the atmosphere of the Court that they are nable to describe the nature of the crime accurately. The Court also observed that when they are cross-examined in a hostile manner, then their nervousness increases and the truth does not come out. Thus, the Court emphasised upon the importance of having child-friendly Courtrooms. 
• Referring to the order of the lower Court, the HC observed that it runs contrary to the decision of the Apex Court and other decisions of the Karnataka HC as well. Thus, the Court allowed the State to cross-examine the victim, but only in compliance with section 33 of POCSO Act. 

Invoking It’s Powers Under Article 142, SC Quashes Rape Case As Victim Gets Married To The Accused!

• In a controversial move, the Hon’ble Apex Court has invoked its powers under Article 142 of the Constitution in Jatin Agarwal vs. State of Telangana to quash a rape case as the Court has noted that the complainant has married the appellant/accused. 
• It is important to note that article 142 of the Constitution provides that the Apex Court may, in the exercise of its jurisdiction, pass any decree or order which it considers necessary for doing complete justice in any cause or matter that is pending before it, and this decree or order is enforceable throughout the territory of India.
• In the instant case, an FIR was lodged against the appellant by respondent 2, alleging that she met the accused through a matrimonial site (Bharat Matrimony), and thereafter, they remained in touch with each other. It was alleged that on a false promise of marriage, the accused had made physical relations with her.
• But since the appellant/accused later refused to marry her, she lodged an FIR under sections 417, 420 and 376 of IPC. It is not, however, disputed that the appellant/accused and the respondent 2 had gotten married on 23-09-2020, for which a marriage certificate had also been issued on the same date. 
• The appellant had then filed an application for quashing the FIR under section 482 of CrPC. The HC, however, rejected this application. Aggrieved by this order, the applicant/accused had filed an appeal by way of special leave (SLP) before the Apex Court. 
• The Court noted that the respondent 2, Ms. T. Harshini had appeared through video conferencing. She made a statement before the Hon’ble Court that she is now happily married to the appellant and does not wish to press the FIR against him. 
• Thus, considering the facts of the case and also that the respondent 2 had herself admitted that she was married and was living happily with the appellant, the Court exercised its powers under Article 142 of the Constitution and for the purpose of doing complete justice in the matter, quashed the FIR which was filed by respondent 2. 
• However, in the case of Shimbhu vs State of Haryana AIR 2014 SC, the Apex Court had clearly stated that rape is a non-compoundable offence and is an offence against the society. It is not a matter to be left to the parties to compromise and settle. The Court, in all its wisdom, had also observed that the Courts cannot always be assured that the consent given by the victim is genuine, as there is every chance that she might have been pressured by the convicts. The Court had also observed that accepting this contention would put an additional burden on the victim.
• It is also noteworthy that in the case of State of MP vs Madanlal AIR 2015 SC the Apex Court had held that in a case of rape or attempt to rape, the conception of compromise can under no circumstances be really thought of. 
• While the circumstances of the present case certainly are different, as the Apex Court had observed in Shimbhu’s case, the Courts can never be sure that the victim’s consent is genuine. All we can hope for is that the perpetrators do not use this order as a shield to protect themselves from the consequences of their actions.

Petitioner-Advocate Charged With Compensation of 1 Lakh For ‘Grave Misconduct’: Rajasthan HC

• The Hon'ble Rajasthan High Court observed in T.C. Gupta v. Union of India (2019) that the petitioner, Shri T.C. Gupta, an Advocate registered under the Rajasthan's Bar Council, had filed Original Applications in the Tribunal and writ petitions in the HC and had personally signed the pleadings, etc. without having been authorized explicitly in this regard by the litigants. As a result, the Hon'ble Court imposed a fine of Rs. 1,00,000 on the petitioner-advocate. The Court further found that the petitioner, who had been enrolled as an Advocate after retiring from the Income Tax Department, could not be penalized for acting as a de facto (in practice) party in judicial proceedings.
• In this case, Justice Sandeep Mehta and Justice Vinod Kumar Bharwani ruled that the petitioner-advocate had filed a writ petition order to quash the Tribunal's judgment dismissing the Original Applications submitted by an association known as the Income-Tax Contingent Employee's Union while serving as a de facto party. Thereafter, the case was introduced to the Rajasthan Bar Council for further proceedings against the petitioner-advocate. 
• Furthermore, the Tribunal noted discrepancies in the petitioner's paperwork, which he had personally reviewed. Therefore, the Court concluded that the Tribunal had rightly imposed Rs.1,00,000/- compensation on the petitioner for the evident misconduct. However, the respondent counsel raised preliminary objections regarding the maintainability of the present petition for lack of proper authorization and pleaded for the order to be quashed as it was unjust and groundless.
• Rule 7 of The Central Administrative Tribunal Rules of Practice, 1993, states that when an application or other proceeding is alleged to have been filed by an Association, the person who signed the application must produce the application for verification by the Registry, and an authentic copy of the Association's resolution authorizing such person. The Registrar, on the other hand, may at any time require the party to submit such further information as himself concerning due authorization. The case of Union & Anr. vs. A.N. Jha & Anr. (2019) had observed the applicability of Rule 7, which was cited in this case.
• A probe into this matter revealed that no formal judgment permitting the filing of the Original Applications was put on the Tribunal's record, and two similar documents filed on separate days with the same content consisted of a variation in signatures. When the Tribunal compared the documents, it discovered that the petitioner-advocate had overlaid the signatures with a xerox machine.
• While confirming the severe misconduct, the Hon'ble Court directed the petitioner to pay the compensation to the Rajasthan State Legal Services Authority within 45 days and send a copy of the receipt to the Tribunal. The Court further stated that if the petitioner does not comply, the issue would be forwarded to the District Collector of Jodhpur to retrieve the compensation. 
• In response, the petitioner requested that the issued judgment be reversed since it was unjust. He stated that he submitted those Original Applications in good faith after being retained as counsel by the Union and its Member Shri Mahendra Singh to campaign for the cause of casual workers employed by the Income Tax Department, but the Tribunal rejected the same. 
• Meanwhile, the Income Tax Department's representative, Advocate Sunil Bhandari, agreed with the Tribunal's decision because the petitioner-advocate was not authorized by the so-called Income Tax Contingent Employee's Union to file cases on its behalf and had himself signed and affirmed the pleadings before the Tribunal despite the fact that he was not a party.
• Therefore, the Hon'ble HC dismissed the writ petition as it lacked merit.