Supreme Court - Daily Orders
Sangitaben Shaileshbhai Datania vs The State Of Gujarat on 29 October, 2018
Bench: N.V. Ramana, Mohan M. Shantanagoudar
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1309 OF 2018
(Arising out of SLP (Crl.) No. 4887 of 2018)
SANGITABEN SHAILESHBHAI DATANTA Appellant(s)
VERSUS
THE STATE OF GUJARAT & ANR. Respondent(s)
OR D E R
Leave Granted.
2. This appeal by special leave is directed against the order
passed by the High Court of Gujarat at Ahmadabad in Criminal Misc.
Application No. 5391 of 2018 for the offences punishable under
Sections 376(2)(f) and 376(2)(i) of the Indian Penal Code, 1860 and also
for the offences under Sections 4, 5(c)(f)(m), 6, 8, 9(c)(f)(m) and 10 of
the Protection of Children from Sexual Offences Act, 2012 by which the
High Court granted bail to the accused (hereinafter referred to as
“Respondent No. 2”).
3. It is not required to go into the details of the instant case.
However, we find it pertinent to mention brief facts, which are as
follows. On 16.09.2017, an FIR, C.R. No. 113/17 was lodged at
Shahpur Police Station, Ahmadabad City against respondent no. 2,
Signature Not Verified
Digitally signed by
under Sections 376(2)(f) and 376(2)(i) of the IPC and Sections 4, 5(c)(f)
SATISH KUMAR YADAV
Date: 2018.10.30
16:57:52 IST
Reason:
(m), 6, 8, 9(c)(f)(m) and 10 of the POCSO Act, by the Appellant, who is
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grandmother of the “victim”. The victim herein is a minor, aged around
7 years.
4. Respondent No. 2 was apprehended thereafter and Charge
Sheet was filed on 05.12.2017 for the offence mentioned in the FIR.
Therein, respondent no. 2 approached the High Court for bail and the
same was granted.
5. The Ld. counsel for the appellant as well as the State have
brought to our notice that the present order of the High Court is in
clear violation of the settled principles of criminal law jurisprudence
and statutory prescriptions. It was also contended that, while
considering the bail application, the High Court traversed the settled
principles of law. The Ld. Counsel for appellant has brought to our
notice that the High Court directed accusedrespondent no. 2 as well
as the appellant, who is grandmother of the victim along with parents
of the victim to undergo scientific tests viz., lie detector, brain mapping
and NarcoAnalysis. After receiving the reports of the same, it
examined the same before enlarging respondent no. 2 on bail vide
impugned order dated 27.04.2018. Further, it is also brought to our
notice that the Ld. Judge has throughout the course of his order
disclosed the identity of the “victim”.
6. Counsel for respondent no. 2 has contended that the
respondent has already been enlarged on bail by the High Court, and
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thus, seeks noninterference by this Court.
7. Having heard the counsels for the parties, it is surprising to
note the present approach adopted by the High Court while considering
the bail application. The High Court ordering the abovementioned tests
is not only in contravention to the first principles of criminal law
jurisprudence but also violates statutory requirements. While
adjudicating a bail application, Section 439 of the Code of Criminal
Procedure, 1973 is the guiding principle wherein Court takes into
consideration, inter alia, the gravity of the crime, the character of the
evidence, position and status of the accused with reference to the victim
and witnesses, the likelihood of the accused fleeing from justice and
repeating the offence, the possibility of his tampering with the witnesses
and obstructing the course of justice and such other grounds. Each
criminal case presents its own peculiar factual matrix, and therefore,
certain grounds peculiar to a particular case may have to be taken into
account by the court. However, the court has to only opine as to
whether there is prima facie case against the accused. The court must
not undertake meticulous examination of the evidence collected by the
police, or rather order specific tests as done in the present case.
8. In the instant case, by ordering the abovementioned tests
and venturing into the reports of the same with meticulous details, the
High Court has converted the adjudication of a bail matter to that of a
minitrial indeed. This assumption of function of a trial court by the
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High Court is deprecated.
9. Apart from the above, the High Court stands in clear
violation of the precedents of this Hon’ble Court and statutory
prescriptions, by disclosing the name of the “victim” throughout the
impugned order. At this juncture, we would like to highlight Section
228A IPC, which states as follows
“228A. Disclosure of identity of the victim of certain offences
etc:
(1) Whoever prints or publishes the name or any matter which may
make known the identity of any person against whom an offence
under section 376, section 376A, section 376AB, section 376B,
section 376C, section 376D, section 376DA, section 376DB or
section 376E is alleged or found to have been committed (hereafter
in this section referred to as the victim) shall be punished with
imprisonment of either description for a term which may extend to
two years and shall also be liable to fine.
…
Explanation The printing or publication of the judgment of any
High Court or the Supreme Court does not amount to an offence
within the meaning of this section.”
10. Extrapolating the intention of the legislature in Section 228A
IPC, this Court in, State of Punjab v. Ramdev Singh, (2004) 1 SCC
421 has made the following observations,
“3. We do not propose to mention the name of the victim. Section
228A IPC makes disclosure of identity of the victim of certain
offences punishable. Printing or publishing name or any matter
which may make known the identity of any person against whom
an offence under Sections 376, 376A, 376B, 376C or 376D is
alleged or is found to have been committed can be punished. True
it is, the restriction does not relate to printing or publication
of judgment by the High Court or the Supreme Court. But
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keeping in view the social object of preventing social
victimization or ostracism of the victim of a sexual offence
for which Section 228A has been enacted, it would be
appropriate that in the judgments, be it of this Court, High
Court or lower courts, the name of the victim should not be
indicated. We have chosen to describe her as “victim” in the
judgment.”
(Emphasis supplied)
11. The concern of the legislature in protecting the identity of the
victim is further evident from the provisions of POCSO Act. Section
33(7) of the same casts a duty on the Special Court to ensure that
identity of the victim is not disclosed at any time during the course of
investigation or trial. Further, Section 23 of POCSO Act provides
restriction on any form of media to disclose the identity of the victim
which tends to lower her reputation or infringers upon her privacy. No
disclosure of any particular(s) is allowed which can eventually lead to
disclosure of the identity of the victim.
12. Thus, taking note of the violation of settled principles of
criminal law jurisprudence and statutory prescriptions visàvis
conversion of adjudication of bail application to a minitrial and
disclosure of identity of the “victim” by the High Court, we disapprove
the manner in which the High Court has adjudicated the bail
application and accordingly, quash the order passed by the High Court.
13. While disposing the matter, we are constrained to observe
the lethargic attitude of the State by not taking necessary steps to bring
the matter to the notice of this Court by filing an appeal despite the
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clear violations of settled principles of criminal law jurisprudence and
statutory prescriptions. The present Special Leave Petition was filed by
the grandmother of the victim and it is only on her behest that we took
notice of the matter.
14. Having considered the facts and circumstances of the case in
the light of foregoing discussion, we allow the appeal and set aside the
impugned order passed by the High Court. Before parting with the
matter, we make it clear that we have not expressed any opinion on the
merits of the case. However, considering the seriousness of the
allegations levelled against Respondent No. 2 herein, we direct the trial
Court to expedite the trial and conclude the proceedings as
expeditiously as possible.
15. The appeal stands allowed accordingly.
….……………....….……………………J.
(N.V. RAMANA)
…...………….…...….……………………J.
NEW DELHI, (MOHAN M.SHANTANAGOUDAR)
OCTOBER 29, 2018.
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ITEM NO.34 COURT NO.6 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).4887/2018
(Arising out of impugned final judgment and order dated 27-04-2018
in CRLMA No.5391/2018 passed by the High Court of Gujarat at
Ahmedabad)
SANGITABEN SHAILESHBHAI DATANIA Petitioner(s)
VERSUS
THE STATE OF GUJARAT & ANR. Respondent(s)
IA No.75690/2018 – Exemption from filing O.T.
IA No.89190/2018 – Exemption from filing O.T.
Date : 29-10-2018 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE N.V. RAMANA
HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
For Petitioner(s) Ms.Sharukh Alam, Adv.
Ms.Liz Mathew, AOR
Mr.M.F.Philip, Adv.
For Respondent(s) Ms.Hemantika Wahi, AOR
Ms.Vishakha, Adv.
Ms.Puja Singh, Adv.
Mr.Amol Suryawanshi, Adv.
Mr.Nishant, Adv.
Mr.Anil Kumar Tandale, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal stands allowed in terms of the signed order. As a sequel to the above, pending interlocutory applications also stand disposed of. (SATISH KUMAR YADAV) (RAJ RANI NEGI) AR-CUM-PS ASSISTANT REGISTRAR 7 (Signed order is placed on the file) 8