Madras High Court
Mohan K.Dhalani vs State Rep By on 14 July, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.R.C.No.916 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.07.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.916 of 2022
and
Crl.M.P.Nos.9468 & 9470 of 2022
Mohan K.Dhalani ... Petitioner
Versus
1.State Rep by
Inspector of Police,
W8 All Women Police Station,
Thirumangalam,
Chennai – 600 101.
Crime No.20/2020
2.Madhu Gulrajani ... Respondents
Prayer: Criminal Revision Case filed under Section 397 & 401 Cr.P.C., to
call for the records in Crl.M.P.No.40 of 2022 in Spl.C.C.No.31 of 2021 on
the file of the Special Court for Exclusive Trial of cases under POCSO Act,
Chennai and set aside the impugned order and allow this revision petition.
For Petitioner : Mr.N.L.Raja
Senior Counsel
for Mr.B.Ashok Kumar
For R1 : Mr.S.Vinothkumar
Government Advocate (Crl.Side)
1/12
Crl.R.C.No.916 of 2022
ORDER
This revision is filed against the order of the Special Judge for Exclusive Trial of cases under POCSO Act, Chennai, Crl.M.P.No.40 of 2022, dated 16.06.2022, in and by which, the prayer of the petitioner to discharge him from the case is rejected.
2.The allegation in this case as per the prosecution is that when the victim child who is normally a resident of England came to India in the year 2014, the petitioner/accused on 06.09.2014, when the victim visited the house of the petitioner/accused, and when she went inside the room, the accused locked the door and she was in bed and the accused also came to bed and pushed the victim child to lay in the bed and thereafter, he committed the acts mentioned in the 164 statement of the girl. The said statement of the girl is extracted herein:
“ Then what happened? He locked the door. I was in bed. He too came to bed . He pushed me to lay in the bed. He grabbed by boobs. He lifted my top and sucked my boobs. He put his hand down my pants. He was feeling. I remember he telling that my hair growth is good. At that time, my grandma called me to feed. So, he left from that place. He asked me to 2/12 Crl.R.C.No.916 of 2022 unlock the door and go.”
3.According to the learned Senior Counsel for the petitioner, this above incident came to light when the girl was examined at the Barnet Police Station in London, in which, it was recorded as follows:
“ This is a case of historical sexual touching of a child under 13. The suspect resides in India and is the victims Great Uncle. The incident was disclosed by the victim to her therapist, who has then disclosed to the family.
The location of the incident is a previous family home in India: Plot Number:1636, 13th Main Road, Anna Nagar West, Chennai – 40, India. The house has been then converted into three flats across two floors, the flats are interconnecting. The incident took place within suspect's bedroom which is situated on the first floor.
On Saturday, 10th March 2018 V1W1 (Victims Father) contacted the police stating that his daughter (V1W1) had been sexually abused when she was 10 years old, he stated that this happened 5 years ago whilst his daughter was in India. He stated that the suspect is the victims great uncle. The incident happened during a 5 week holiday, he stated that since the incident his daughter has been “odd”, doesn't talk to males, is “tomboyish” and has anger issues.3/12 Crl.R.C.No.916 of 2022
V1W1 (victim) stated that she was in her great uncles room on his bed when at approximately 1800 hours her uncle lifted her top and began to suck on her breast, she staed that he then reached under her shorts and felt her vagina with his hand, she stated that he then inserted her fingers into her vagina. V1W1 stated that his lasted for approximately 5 minutes until her grandma called her name to inform her than dinner was ready – at that point her uncle unlocked his bedroom door and allowed V1W1 to leave.
V1W1 stated that SUSP1 (Great Uncle) said at the time of the assault “your hair growth is good, do you want to touch mine?”
4.The learned Senior Counsel would submit that the said report is the basis of taking the matter for investigation and the same forms part of the prosecution documents as well as part of the charge itself. Therefore, when the child has categorically stated that the incident had happened when she was ten years old and when they visited India in the year 2012, also especially during the month of August 2012, which is prior to the date of coming into force of the POCSO Act, then Article 20 comes into play and the accused cannot be prosecuted under the POCSO Act. Therefore, the 4/12 Crl.R.C.No.916 of 2022 learned Senior Counsel would submit that when even the allegations of prosecution are taken on the evidentiary value, still it does not entitle the prosecution to lay a charge under Section 6 of the POCSO Act and at best it can be a charge under Section 354 IPC, which is triable by a Judicial Magistrate. Then, the learned Trial Court ought to have passed an order in the discharge application itself by holding so and thereafter, the learned Trial Court ought to have framed a charge under Section 354 IPC and send the case back to the appropriate Court for trial. He would further submit that POCSO Act being a special Act, in which the onus is on the accused to disprove and the offence under section 354 IPC in which event the onus is on the prosecution, grave prejudice results to the petitioner. In this context, he would rely on the judgment of the Hon'ble Supreme Court of India in Ganesh Gogoi Vs. State of Assam reported in (2009) 7 SCC 404, wherein, while dealing with the case of TADA Act, the Hon'ble Supreme Court of India has categorically warned about framing of charges under stringent provisions were onus is on the accused and also held that the Courts should examine the issue carefully while framing charges under the special provisions. Therefore, the learned Senior Counsel would submit that this is 5/12 Crl.R.C.No.916 of 2022 a case after a great delay, the parents of the victim child in order to wreck out vengeance against the petitioner have made out a story so that the petitioner can be persecuted by way of this case.
5.Per contra, the learned Government Advocate (Crl.Side) would submit that in this case, the statement of the girl is recorded by the learned Judicial Magistrate under Section 164 Cr.P.C. The learned Judicial Magistrate had first asked a question when had you last come to India. The girl answers that she came in 2014 and then she visited the house of the accused. Then next question put by the learned Judicial Magistrate was 'then what happened there?'. The girl had narrated the incident. Therefore, it is very clear from the 164 statement of the girl that the incident had happened in the year 2014. The mother of the victim girl had also spoken to the fact that the incident had happened in the year 2014. Therefore, the petitioner can be prosecuted for the offences under the POCSO Act. It is only the defence theory that the date of incident has to be taken as 2012 based upon the statement of the child that she was aged 10 years when she reported before the England Police which cannot be treated as an unimpeachable document and the offence triable before the Trial Court. 6/12 Crl.R.C.No.916 of 2022 The version of the defence has to be proved before the Trial Court and therefore, this issue cannot now be considered at the stage of discharge.
6.In reply to the submissions of the learned Government Advocate (Crl.Side), the learned Senior Counsel would submit that this is not the defence version, but the statement contained in the very charge itself. The final report in the previous portion mentions that the offence happened in the year 2014 and in the later portion, the statement before the England Police is extracted and wherein, the girl stated that the incident happened when she was aged 10 years. When there is redundancy in the charge, alteast this Court should order further investigation to clarify the matter before allowing the Trial Court to proceed further and frame charges in the matter.
7.I have considered the rival submissions on either side and perused the material records in this case.
8.As far as the date of commission of the offence, the Sec.164 Cr.P.C., statement given by the victim reads as if it happened in the year 7/12 Crl.R.C.No.916 of 2022 2014. Whether the statement, made before the Police in England, was made by the victim child by exactly remembering the date or not and whether, as per the same, the act had happened in the year 2012 or not has to be determined only after due cross-examination of the prosecution witness by the defence in this case and therefore, are matters for trial. In this regard, when it is the case of the prosecution that the offence took place in the year 2014 and when it is supported by the Sec.164 of Cr.P.C., statement by the victim child and the statement of the mother, there is no question of this Court ordering further investigation at this stage.
9. In this case, even assuming that the offence was committed only in the year 2012, still it would amount to criminal offence. According to the learned Senior Counsel for the petitioner, it would amount to an offence under Section 354 IPC exclusively triable by a Judicial Magistrate and not by the Court of Sessions. But, however, according to this Court, it is the intention which matters. The occurrence happened in a separate room. The petitioner/accused locked the door, pushed the victim to the bed and did the act. Therefore, if all acts along with the intention is gathered, this cannot be 8/12 Crl.R.C.No.916 of 2022 a mere offence under Section 354 IPC but an offence under Section 376 read with 511 IPC, which would also be triable by the Sessions Court. Section 228 Cr.P.C., reads as hereunder:
228. Framing of charge -
(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which—
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.9/12 Crl.R.C.No.916 of 2022
10.Therefore, it is also not in dispute that the Special Court for Exclusive Trial of cases under POCSO Act is of the status of the Sessions Court and entitled to try the IPC offences, more specifically an offence under Section 376 r/w 511 of IPC. Therefore, appropriate safeguards can be taken by the Sessions Court at the time of framing charges. I am of the view that there is prima facie material in this case to proceed against the accused and the Trial Court has rightly dismissed the discharge application and accordingly, this revision fails and dismissed. Consequently, connected miscellaneous petitions are also closed.
14.07.2022 Index : Yes/No Internet: Yes /No Speaking/Non-speaking order sli/grs 10/12 Crl.R.C.No.916 of 2022 To
1. The Inspector of Police, W8 All Women Police Station, Thirumangalam, Chennai – 600 101.
2.The Special Court for Exclusive Trial of cases under POCSO Act, Chennai.
11/12 Crl.R.C.No.916 of 2022
D.BHARATHA CHAKRAVARTHY, J.
sli/grs Crl.R.C.No.916 of 2022 14.07.2022 12/12