Top News Headlines 16th May 2022: Kissing, Fondling Not Unnatural Offences: Bombay HC Grants Bail To POCSO Accused

Kissing, Fondling Not Unnatural Offences: Bombay HC Grants Bail To POCSO Accused

• While granting bail to a man accused of sexually assaulting a 14 year old minor boy, the Bombay HC observed that kissing on the lips and fondling are not unnatural offences and therefore, will not attract the rigours of section 377 of IPC.
• Justice Anuja Prabhudesai, in her four page order, observed that the statement of the victim as well as the FIR prima facie indicate that the accused had touched the private parts of the victim and had kissed him on the lips. In her view, this would not prima facie constitute an offence under section 377 IPC. 
• In this case, the father of the minor boy had found some money missing from their home on 17-4-2021. When he asked his son about it, the boy told him that he had given the money to the accused person to recharge an online game called ‘Ola party’. The boy also told his parents that the accused had sexually assaulted him. Following this, an FIR was registered under section 377 IPC and sections 8/12 of the POCSO Act. 
• It is important to note that unnatural offences under section 377 IPC are punishable with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and the accused will also be liable to fine. The high quantum of the sentence makes it very difficult for the accused to be released on bail.
• The Court also asked the prosecutor as to what material is there apart from the statement in the FIR to support the application of section 377 IPC as the medical report does not support it. The Court also observed that the POCSO sections imposed against the accused carry a maximum sentence of 5 years, and thus, bail can be granted to the accused. 
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• The Court observed that the accused had been in custody for almost a year, no charges had yet been framed, and the trial was not likely to commence in the near future. Considering these factors, the accused was released on bail after furnishing a bond in the sum of Rs. 30,000 with one or two sureties. 
• The accused has been asked to not interfere with the complainant-father and other witnesses, to report to the police station once every two months, and not tamper with the evidence or attempt to contact the complainant, witnesses or any person concerned with the case. He has also been asked to keep the trial Court posted about his address and contact information. 

Section 5 Limitation Act Not Applicable To Proceedings Under Section 34, Arbitration & Conciliation Act: Rajasthan High Court

• The Hon’ble Rajasthan in a recent case, State Of Rajasthan & Anr. v. M/s. Godhara Construction Company has observed that the provisions of Section 5 of the Indian Limitation Act do not apply to the proceedings contained under Section 34 of the Arbitration and Conciliation Act, 1996.
• The Court remarked that the application for setting aside the arbitral award may not be made after three months having elapsed from the date on which the party making that application had received the arbitral award. 
• It was observed that the provision in  Section 34(3) of the Act empowered the Court if it is satisfied that the applicant was prevented by sufficient cause from making an application within  three months to further extend the period and then filed the application for setting aside the arbitral award by 30 days but not thereafter. 
• In the instant case, a miscellaneous appeal was filed by the State of Rajasthan against the judgment passed by the Additional District and Session Judge Court where an objection was filed by the appellant-State of Rajasthan under Section 34 of the Arbitration and Conciliation Act, 1996 (for short ‘the Act of 1996’) against the arbitral award dated 29.07.2000 has been rejected.
• A work contract was given to the respondents for renewal work of pever and Hot Mix plant in 14 Km. Length in between Kms. 100 to 149 on Agra Road, NH-11, the year 1993-94 was executed between the parties. In the agreement, it was given to resolve the dispute through an arbitration clause. During the development of the work, a dispute arose between the parties.
• After hearing both sides, the arbitrator passed an award with interest on the amount from 25.04.1997 till its actual payment vide award dated 29.07.2000 and a copy of the award was forwarded to Chief Engineer, PWD (National Highway), Jaipur. 
• Aggrieved by the award, an application was filed before the trial court for passing a decree in terms of the award dated 29.07.2000 as the award was not satisfied. When the notices of this application were served upon the appellant-State, the appellant submitted an objection on 22.02.2001 by filing a reply of the application in respect of the award dated 29.07.2000. Since there was a delay in filing objections, hence an application under Section 5 of the Limitation Act was submitted for condoning the delay.
• The learned Additional District Judge, Jaipur rejected the objections vide impugned order dated 30.08.2008 and held that the objections were not filed within the time of limitation prescribed under Section 34 (3) of the Act of 1996 and also held that the objections cannot be decided on merits as they were beyond limitation. 
• Two main issues arose with respect to the present appeal-

1.   Whether the objection petition was filed under Section 34 of the Act of 1996 within the period of limitation?
2.  Whether the delay is condonable by the exercise of power under Section 5 of the Limitation Act?

• The Court held the opinion that the application under Section 34(3) of the Act of 1996 filed by the appellant for setting aside the arbitral award dated 29.07.2000 was beyond the requisite period of limitation permitted under the Arbitration and Conciliation Act, 1996. Hence, By taking the recourse of the provisions of the Limitation Act, the same could not have been considered.
• Therefore, Justice Anoop Kumar Dhand dismissed an appeal preferred by the State government. 

Not Mandatory To Have Both Signature And Thumb Print For A Pro-Note To Be Valid: Madras HC

• In the recent case, R Barathbaran (died) and others v. R. Nallathambi, the Hon'ble Madras HC has observed that it is not mandatory to have both signature as well as a thumbprint under the Negotiable Instrument Act, 1881 to determine the validity of a pro note. 
• The Court noted that it was not right to raise suspicion with regard to the execution merely on the ground that the thumb impression of the defendant was not obtained when the defendant had not denied the execution. 
• The plaintiff in the present case filed a suit against the respondent for recovery of money of Rs. 1,00,000/- each borrowed by him and executed promissory notes in the favour of the plaintiff for consideration. 
• After the pre-suit notice was issued, the plaintiff filed the suit for recovery of the claim of Rs. 4,59,000/- along with subsequent interest.
• The defendant admitted the execution of the suit promissory notes. A plea was raised by the defendant that promissory notes that had been executed towards security for the loan and the loan due was settled by way of execution of a sale deed in the name of the plaintiff’s wife. 
• The trial Court took oral and documentary evidence and note of the admission as to the execution and considered the statutory presumption under section 118 of the NIA and the authority of the holder in due course to fill up the promissory note u/s 20 of the Act and favored the plaintiff in the judgment. 
• Aggrieved by the decree, the defendant filed an appeal before the Lower Appellate Court. The Court neither considered the admission made in the pleads and evidence nor took note of the statutory presumptions in the favour of the plaintiff but erroneously allowed the appeal that the thumb impression of the defendant was not obtained and that signature in each promissory note is different on comparison by naked eyes and hence reversed the judgment by the Trial Court. 
• The appeal made before the High Court by the appellant held that there was no dispute with respect to the execution of the documents, there was no reason for the court to compare these documents with the naked eye as if the defendant had denied the execution.
• The Hon’ble HC declared that the First Appellate Court had committed an error in giving findings in the execution. Once the signature found in the suit documents had been admitted, there was no need or necessity for the plaintiff to give an explanation for not obtaining the thumb impression in the suit promissory note. There is no such law to get the thumb impression in the promissory note, particularly, when the execution and issuance of pro notes were not in dispute. 
• The Court also stated that as there was a statutory presumption in the favour of the plaintiff, the defendant had to rebut it by proof and not by a bare explanation. Unless the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. The presumption under Section 118 of the Negotiable Instruments Act was one of law, and there under, the Court below shall presume that the promissory notes were made for consideration. Once the statutory presumption was raised, the onus of proving the absence of consideration was on the executant.
• The Madras HC set aside the judgment of the lower appellate Court and allowed the petition made by the appellant.