Top News Headlines 1st Jun 2022: Criminal Proceedings For The Offence Of Rape Can Be Quashed On Account Of Settlement Between The Partie

Criminal Proceedings For The Offence Of Rape Can Be Quashed On Account Of Settlement Between The Partie: Karnataka HC

• In the case of Sathish K and ors vs State of Kerala the Hon’ble Karnataka HC has held that the closure of proceedings even if instituted for the offence of rape, can be done on account of a settlement entered into between the parties. The Court, thus, quashed the proceedings pending against 4 persons on the complaint made by a woman of the same family. 
• It is worth mentioning that the Hon’ble Karnataka HC had, in 2021, in the case of Anil s/o Venkappa Kushalkar vs State of Karnataka had held that in the case of heinous offences such as rape, even if the parties have settled the dispute, the same cannot be accepted and the proceedings cannot be quashed since it would have a serious impact on the society. 
• The Hon’ble Apex Court, in Guan Singh vs State of Punjab and anr (2012) SCC had held that in serious offences such as rape, dacioty etc., or in other offences of mental depravity under IPC or offences involving moral turpitude, the proceedings cannot be quashed, even though the victim or the victim’s family and the offender have settled the dispute, since it would have a serious impact on the society.
• Coming to the facts of the present case, the petitioners had approached the HC seeking to quash the FIR registered against them under sections 376, 384, 504, 506 read with section 34 of IPC. The FIR was registered on 17 February, 2022 for the same. 
• During the pendency of the proceedings, the complainant and all the other accused entered into a settlement by way of an affidavit, and produced the same before the Court. 
• The Counsel for the petitioners placed reliance on a plethora of judgements in support of his arguments, some of them being Prashant Bhartiya vs State of Delhi (2021), K. Dhandapani vs The State by Inspector of Police (2022), etc. 
• The Hon’ble Karnataka HC observed that in view of the judgements rendered by the Apex Court and the various HCs, and also taking into account that the complainant is said to have married and is leading a happy life within the family itself and the accused being members of the same family, it was appropriate to compound the said offences and terminate the proceedings against the petitioners. 

Documents Cannot Be Supplied To The Accused U/S 207 CrPC If There Is A Risk Of Disclosure Of Minor Victim’s Identity: Calcutta HC

• In Sri Anish Loharuka vs State of West Bengal the Hon’ble HC of Calcutta has observed that strict compliance of the provisions of section 207 CrPC is not mandatory if there is a risk of disclosure of the minor victim’s identity. Instead, the Court can allow the accused or his pleader to inspect the document. 
• The instant case was preferred against the order of the learned Sessions Court, wherein the supply of documents including electronic records under section 207 CrPC was denied to the petitioner. He was accused of various offences under the Information Technology Act, Indian Penal Code and POCSO Act. 
• The Counsel for the petitioner submitted that the petitioner had been accused of committing offences against several women, one of them being a minor. He had filed two applications praying for the supply of documents afresh because the same were not legible and also the contents of a hard disk, which was seized in the case, which contained screenshots taken from mobile phone, WhatsApp, chat history, etc. The learned Trial Court had refused to supply copies of the same. 
• The Counsel for the petitioner placed reliance on the decision of the Hon’ble Apex Court in P. Gopalkrishnan vs State of Kerala and anr. (2020) SCC and argued that an accused had an indefeasible right of being supplied with all the documents which could be relied upon against him in a criminal trial. The accused also has the right to send such documents to an expert for examination. 
• It was also argued that the documents relied upon to prove the guilt of the accused have to be supplied to him irrespective of the issue of privacy of the complainant or or witnesses that may be there. 
• The Counsel for the State, on the other hand, vehemently argued that although all the documents relied upon by the prosecution have to be supplied to the accused, but when the issue of the privacy of the complainant or witnesses or disclosure of the identity of the minor becomes an issue, then the documents cannot be supplied to the accused, at best, an inspection can be given to him or his lawyer. 
• Referring to the decision of the Apex Court in P. Gopalkrishnan, the HC observed that it was abundantly clear that if there is a possibility of the disclosure of identity of a minor victim, even if he/she was minor at the time of the alleged offence, then instead of supplying the documents to the accused, it would be in the interest of justice that the accused or his pleader is allowed to inspect the documents in question. 
• The Court also observed that the accused would have the right to have such a document inspected by an expert of IT. 
• Thus, partly setting aside the decision of the Trial Court, the Hon’ble HC allowed copies of those documents which did not disclose the identity of the victim, to be supplied to the accused. He was also allowed to inspect the electronic evidence along with his pleader and an IT expert, if he chose to engage the same. 

Spousal Consent Not Required by Wife to Donate Organ: Delhi High Court

• The Delhi High Court, while dealing with a petition filed by a woman seeking permission from the Court to donate her kidney to her father, stated that spousal consent is not a requisite to donate organs to a relative.
• The petitioner approached the court after her application to donate her kidney to her ailing father was not processed by the hospital for want of her husband’s consent. 
• The hospital administration asked her to obtain an NOC signed by her husband to be able to donate an organ which she cannot furnish as her relationship with her husband is distant and therefore, obtaining the same is not possible.
• The Delhi High Court observed that a wife has full control over her body and there is no need for her to seek the consent of her spouse to donate an organ.
• Justice Yashwant Sharma, while interpreting relevant provisions of the Transplantation of Human Organs and Tissues Rules, 2014 and the Transplantation of Human Organs Act, 1994 said that a husband is not a superior authority who can dictate complete autonomy over wife’s body.
• Justice Sharma further said that the decision to donate an organ is a personal and conscious decision which can only be taken by the donor and spousal consent is not mandatory for the same.
• Activities such as organ donation and transplantation comes under the ambit of the Transplantation of Human Organ Act (THO) which was passed in India in 1994.
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• Section 2(f) of THO says that ‘donor’ means any person, not less than eighteen years of age, who voluntarily authorises the removal of any of his human organs for therapeutic purposes.
• The Court also took notice of Rule 18 which deals with the procedure in case of near relatives and Rule 22 which deals with the precautions in case of woman donor and held that no requirement is made out for the consent of a spouse in either case. The rule does not necessitate any NOC to be signed by the spouse for the same.
• The Delhi High Court made it clear in its order on Monday that there is NO requirement to seek spousal consent if a wife wishes to donate an organ to a close relative in accordance with the law.
• The Court further said that a woman is not a property of her husband and has the right to exercise full autonomy over her own body. If she wishes to donate an organ, she can do so and the act of the hospital staff asking the woman to furnish an NOC is wrong and unjustified. 

Anticipatory Bail Application Cannot Be Dismissed Even Though The Accused Is Outside The Country: Kerala High Court

• In Vijay Babu v. State of Kerala & Anr., the Kerala High Court granted an interim anticipatory bail to the accused. The Court observed that being outside the country is not an impediment for the accused in seeking an anticipatory bail.
• The case came to being on the basis of a #MeToo revelation made by a new-comer actress, where she accused producer Vijay Babu of taking sexual advantages from her under the guise of being a ‘saviour’ and getting her acting roles. The victim is also the de-facto complainant in this case.
• Subsequently, a complaint was registered against the accused in the Ernakulam Police station. After the case came to light, the police issued a lookout notice against him as he has left the country and is currently residing in Dubai. The interim bail application was filed by the counsel of the accused out of fear of getting arrested on his return at the airport. 
• Justice Bechu Kurian Thomas while granting an interim protection from arrest clarified that once the accused is given protection, he will come back to India and the investigation will be carried out to serve justice.
• He further observed that the essential requirement of every investigation is that the accused must be in its control for the purpose of carrying out an effective and fair investigation. It augurs well, in the interest of the investigation as well as the victim, that the accused submits himself to the jurisdiction of the investigating team in the interest of the victim. 
• The Additional Director General Of Prosecution contended that the accused filed the bail application after leaving the country and it is clear from his conduct that he wants to remain outside the jurisdiction of the investigation.
• The prosecution also relied on two judgements; Souda Beevi v. Sub Inspector of Police & Ors [2011 (4) KLT 52] and S.M.Shaffi v. State of Kerala [2020 (4) KHC 510], whereby it was held that the petitioner’s presence outside the country disentitle him to maintain an anticipatory bail application.
• On Tuesday, the prosecution prayed for the dismissal of the said application on the grounds that the offence committed by the accused is grave and that he is trying to abscond from the hands of justice.
• In the bail application of the accused, it was contended that the de facto complainant (victim) is trying to blackmail him by filing a false case. He also alleged that she used to call him at odd hours asking for more opportunities in the film industry. 
• Further, the application urged the Court to find out the truth in the statement of the de facto complainant and come to a rightful conclusion so as to avoid tarnishing and defaming an innocent individual.
• The accused also claimed that he has saved all the messages sent by the de facto complainant to him, including all the photos and videos that he is willing to submit to the Court for proper investigation.
• The Court dismissed the contentions raised by the prosecution and noted that in Sushila Aggarwal & Ors v. State, the Supreme Court held that every individual is protected under Article 21 of the Indian Constitution and can only be deprived of it by the procedure established by law. Section 438 of CrPC which deals with the anticipatory bail application is one such procedure and Courts should not put unnecessary restriction on its scope.
• In this light, the Court granted an interim protection from arrest to the accused until 2nd June 2022.