Top News Headlines 11th Apr 2022: Bail In POCSO Case: 16-Year-Old Victim Knew The Consequences Of Her Actions

Bail In POCSO Case: 16-Year-Old Victim Knew The Consequences Of Her Actions: Bombay HC

• In Rohit Sukate vs State of Maharashtra the Bombay HC has granted bail to a rape accused after noting that the 16-year-old victim knew about the consequences of her actions and that the accused had used a condom while engaging in intercourse with her. 
• The accused in the instant case was arrested on 9 September, 2019 and had been in custody since then. The applicant/accused was a friend of the victim’s brother and was acquainted with the victim. 
• The prosecution had alleged that on 19 May, 2019, the accused had called her behind her house and had forcible sexual intercourse with her, saying that he loved her and would marry her. After this incident, there were various other incidents where the appellant had intercourse with the victim. 
• Ultimately, the matter came to the knowledge of the informant in the first week of September, 2019, after which the complaint was lodged. 
• The Counsel for the appellant argued that the victim, though a minor, knew of the consequences of her acts. The statement of the victim as well as the medical history rules out the possibility of forceful intercourse. On the other hand, it could be seen that the relationship was consensual. 
• The learned APP, on the other hand, argued that the victim was a child within the meaning of the POCSO Act and thus, her consent is immaterial. It was also submitted that the applicant had taken advantage of the acquaintance and had sexually abused the victim. 
• After taking into consideration the circumstances of the case, the Court observed that though the victim was indeed a child within the meaning of the POCSO Act, it is important to note that the victim had attained the age of 16 years and 6 months, and ought to be aware of the nature and the consequences of her actions. 
• The Court further observed that there were circumstances to show that there was no element of coercion at the instance of the applicant in having physical relations with the accused. The Court also noted that the applicant had used condoms during the relationship. 
• Thus, the application for the grant of bail was allowed, and the applicant was released on a 25,000/- bond with one or two solvent sureties. 

Petition Filed Directly In HC Without Availing Remedy U/S 156(3) CrPC In Conflict With SC Directions: Gujarat HC

• The Gujarat HC has, in Kameshbhai Niranjanbhai Sopariwala vs State of Gujarat refused to entertain a writ petition under Article 226 of the Constitution and issued directions for the registration of FIR on a complaint lodged by the petitioner, and observed that if such petitions are entertained then the HCs will be flooded and would not be able to do anything else. 
• In the instant case, the petitioner was engaged in the business of manufacturing and selling art silk and gray garments and was invited to sell the material to the accused. However, despite several reminders, the accused did not remit Rs.35,87,300 to the petitioner. Later on, they had issued 8 cheques but they were dishonoured. 
• By relying upon the decision in Lalita Kumari vs State of UP (2014) SCC and State of Telangana vs Habib Abdullah Jeelani (2017) SCC the Counsel for the petitioner argued that it was obligatory on the part of the respondent authorities to register the complaint against the accused. 
• The Hon’ble HC referred to the decision of the Apex Court in the case of M. Subramaniam vs S. Janki (2011) in which the Apex Court had referred to the case of Sakiri Vasu vs State of Uttar Pradesh and ors wherein it was held that if a person has a grievance that the police station is not registering an FIR under section 154 of CrPC, then he can approach the Superintendent of Police under section 156(3). If his grievance is still not resolved, then he can approach the Judicial Magistrate under Section 156(3) of CrPC, and the Magistrate can order the FIR to be registered and can direct that a proper investigation be made into the alleged complaint. 
• The Court had also observed that in the case of Mohd Yousuf vs Afaq Jahan the Apex Court had observed that any Judicial Magistrate, before taking cognizance of an offence, can order an investigation under section 156(3) of CrPC. The same view was taken by the Court in Dilawar Singh vs State of Delhi. 
• In the case of State of Bihar vs J.A.C. Saldhana it was held that the power of the Magistrate to order further investigation under section 156(3) is independent of the power of the investigating officer to further investigate the case under section 173(8) even after the submission of his report. Thus, the Magistrate can order the reopening of the investigation even after the police submits the final report. 
• Referring to the judgement in Sudhir Bhaskarrao Tambe vs Hemant Yashwant Dhage and ors. the Court observed that the complainant must avail of the alternate remedy to approach the Magistrate concerned under section 156(3), and such Magistrate must ensure, upon his prima facie satisfaction, that the FIR is registered and that proper investigation is carried out. 
• In light of the aforementioned cases, the writ petition was disallowed since the petitioner had the opportunity to approach the Judicial Magistrate concerned under section 156(3) CrPC.

Petition Maintainable Under Both Motor Vehicles Act And Workmen's Compensation Act; Compensation Not Claimable: Madras HC

• In R. Geethabanu v. Government of Tamil Nadu and Yamuna Devi(Died) v. Abdul Raheem and Ors, the bench of Justice Rmt. Teeka Raman observed that Motor Vehicles Act and Workmen's Compensation Act are no longer a part of good law and that an individual cannot be held liable under both the Motor Vehicles Act and the Workmen's Compensation Act for the same accident. 
• In this case, the first appeal was for an increase in the award issued by the Deputy Commissioner of Labour, Madurai, due to a mistake in calculating the petitioner's father's payment at the time of his death. The petitioner had been assigned Rs. 2000 instead of Rs. 5835 by mistake by the DC. In addition, an allegation stating that the DC had miscalculated and issued interest from the date of the petition instead of the date of the accident was also made. Furthermore, the petitioners requested the dismissal of the MCOP, which determined that the deceased was a worker who was provided with labour under the WCA and that his accident occurred while he was engaged in the Government Department. To this, the Insurance company raised a point for consideration that stated whether the claim petitioner could file a petition for claiming compensation under both the provisions. 
• Section 4(1)(a) of The Workmen's Compensation Act, 1923 stipulates that any payment received by the worker from his employer for medical care will not be construed to be a payment received by him as compensation within the scope of clause (a) of the proviso.
• In a relevant case, Oriental Insurance Co. Ltd., v. Siby Charge and others (2012), the Hon'ble Apex Court held that the claimants are entitled to 12% only from the accident date. The same was followed in Divisional Manager, National Insurance Co., Ltd., v. M.Mutharasi and others (2015).
• In another noteworthy case, Divisional Manager, New India Assurance Company Limited vs. Astalingam and others (2012), it was held that the claim petition under both the provisions of the Motor Vehicles Act and the Workmen's Compensation Act are maintainable based upon the decision of Rajasthan High Court in New India Assurance Co., Ltd., vs. Bidami (2009).
• After hearing both parties and referring to the aforementioned cases, the Hon'ble Court held that the claim petition under the Act's provisions was maintainable. It further determined that based on the date of the accident and in light of the provision under Section 4(1)(a) of the Workmen Compensation Act, 50 percent of the deceased's monthly wages could be multiplied by the relevant factor, and thus the calculation done by the Deputy Commissioner was fair and accurate. Additionally, the Court held that a person may be prevented from asserting a right that he otherwise would have had by his acts, behaviour, or silence when it is his responsibility to speak under the doctrine of election, which is a subset of the rule of estoppel.
• Therefore, the claim petitions filed under Motor Vehicles Act and the Workmen's Compensation Act were dismissed by the Hon'ble HC.