Karnataka High Court
Tanushree Sandilya Jha vs State Of Karnataka on 19 November, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION NO.594 OF 2020
BETWEEN:
Tanushree Sandilya Jha
D/o Amarnatha Mishra,
Aged about 41 years
R/o Gauri Niwas, Near Zila School,
Laheriasarai, darbhanga, Bihar.
Pin - 846-001.
Presently R/a 102, Claire Tsukumo,
38-1, Tsukuno-Cho, Tsurumi-ku,
Yokohama-Shi, Kanagawa-Ken, Japan.
Pin - 230-0061.
.. PETITIONER
(By Sri Murthy D. Naik, Advocate for
Sri Mohd. Shakeib Naru, Advocate)
AND:
1. State Of Karnataka,
through its Commissioner of Police,
2, Ali Asker Road, Vasanth Nagar,
Bangalore, Karnataka,
Pin-560 051.
2. Avinash Jha,
S/o Dhananjay Jha,
Aged about 42 years,
1
R/o 41, Head of Innovation & Inititiaives,
T6 #72, Pebble Bay Apartment,
Nagashetty Halli, RMV Stage 2,
Bangalore, Karnataka.
.. RESPONDENTS
(By Smt. K.P. Yashodha, HCGP for R1;
Sri Praveen C., Advocate for R2)
THIS CRIMINAL REVISION PETITION IS FILED
U/S.397 READ WITH SECTION 401 OF CR.P.C. PRAYING
TO SET ASIDE THE ORDER DATED 02.07.2019 PASSED IN
PCR NO.61/2016 BY THE LIV ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH:55) SITTING IN CHILD FRIENDLY
COURT, BENGALURU URBAN DISTRICT DISMISSING THE
PROTEST PETITION FILED BY THE REVISION PETITIONER
AND TO ORDER DE-NOVO INVESTIGATION UNDER THE
POCSO ACT, 2012 ETC. ETC.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THROUGH PHYSICAL HEARING / VIDEO
CONFERENCE THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Heard Sri Murthy D. Naik, learned counsel for petitioner and Sri Praveen C., learned counsel for respondent No.2 and Smt. K.P. Yashodha, learned High Court Government Pleader for respondent No.1.
2. The petitioner is the mother of minor child aged about 10 years. There is no dispute with regard to the fact that the custody of the minor child is given to 2 respondent No.2 - father, by the Gavle District Court, Sweden. Under the said order, the petitioner - mother is given visitation right. It is submitted at the Bar that the petitioner - mother had filed an application seeking custody of the child by making an application under S.7 of the Guardians and Wards Act, 1890 before the Court at Bengaluru in G & WC No.132/2016, but the said petition was later withdrawn by her on 07.07.2017 and thereafter she filed another petition before the Court in Bihar in G & WC No.50/2017 which is pending consideration of the concerned court.
3. That being the situation, the petitioner - mother presented a private complaint under S.200 Cr.P.C. before the Special Juvenile Court (POCSO ACT 2012) at Bengaluru in PCR No.61/2016. In the said complaint, she alleged that during her visit to the minor child on 17.04.2016, the child complained to her that respondent No.2 was touching her private parts and pulling it hard while giving bath or massage or when she was sleeping and was threatening her not to tell the same to any other person and in case she did, he would create a havoc in her life. On receiving this complaint, the Special Court referred 3 the complaint for investigation under S.156(3) of Cr.P.C. During the course of investigation, the statement of the minor child was recorded under S.164 of Cr.P.C. In the said statement, the child having categorically denied any abuse by respondent No.2 / father and considering the other material on record, the Investigating Officer submitted a 'B' report to the effect that the offence as alleged by the complainant has not been made out.
4. The petitioner herein filed her protest petition to the said report and gave her sworn statement before Court and also placed on record twenty documents. Considering the said material, by the impugned order, the Special Court dismissed the protest petition and by accepting the 'B' report filed by the Investigating Officer, closed the case. This order is impugned in this petition.
5. The contention of the learned counsel for the petitioner is that the 'B' summary report was submitted by the Investigating Officer mainly based on the statement of the minor recorded under S.164 Cr.P.C. Referring to the said statement (Annexure - P17), learned counsel pointed out that during the recording of the said statement, 4 respondent No.2 / father of the victim was present contrary to the mandate of Sections 24 and 25 of the Protection Of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO Act' for brevity) and therefore, this statement could not have been relied upon by the Special Court as the basis to accept the 'B' summary report.
6. Secondly, he contended that the allegations made in the complaint prima facie disclose the ingredients of the offences under Sections 3 and 7 of the POCSO Act and therefore, the impugned order being contrary to the material on record is liable to be set aside. In support of this submission, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in the case of VISHNU KUMAR TIWARI Vs. STATE OF UTTAR PRADESH THROUGH SECRETARY HOME, CIVIL SECRETARIAT, LUCKNOW AND ANOTHER reported in 2019 (8) SCC 27 and submitted that in view of the defects noted above, the matter be referred for further investigation by the police.
7. On the same point, learned counsel has also relied on the decision in VINUBHAI HARIBHAI MALAVIYA 5 AND OTHERS Vs. STATE OF GUJARAT AND ANOTHER reported in AIR 2019 SC 5233 and with regard to the power of the revisional court to interfere in the matters of such nature, learned counsel has referred to para 130 of the decision in JANATA DAL Vs. H.S. CHOWDHARY AND OTHERS, 1992 (4) SCC 305 which is extracted herein- below:
" 130. The object of the revisional jurisdiction under Section 401 is to confer power upon superior criminal Courts - a kind of paternal or supervisory jurisdiction - in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some underserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case."
8. Refuting the above submissions, learned counsel for respondent No.2 while taking me through the records of the proceedings would submit that the petitioner 6 has taken recourse to criminal action with an ulterior motive to gain the custody of the child. The learned counsel pointed out that much before lodging of the complaint before the Special Juvenile Court, the petitioner had approached the Karnataka State Commission for Protection of Child Rights, Bengaluru and at the instance of the Commission, the child was referred for evaluation at the National Institute of Mental Health and Neuro Sciences(NIMHANS), Bengaluru and a report was obtained. This report clearly indicates that no such incident had taken place as alleged in the complaint. The child did not complain to NIMHANS personnel or to anybody about the alleged abuse by respondent No.2, her father. This report is in conformity with the statement made by the child before the learned Magistrate, as such, there is no reason to doubt the veracity of the statement made by her under S.164 Cr.P.C. That apart, there is nothing on record to show that respondent No.2 has been causing any sexual harassment to the victim as alleged by the petitioner and therefore, the Trial Court was justified in rejecting the protest petition and accepting the 'B' summary report filed by the police.
7
9. Learned Government Pleader also has argued in support of the impugned order contending that the Investigating Officer has formed his opinion based on the statement made by the victim before the Magistrate and no circumstances having been pointed out to doubt the said statement, there is no ground to interfere with the order passed by the learned Magistrate.
10. I have considered the rival submissions and have carefully scrutinised the material on record.
11. A reading of the complaint on the face of it indicates that as on the date of the lodging the complaint, the custody of the child was with respondent No.2 - father and the petitioner had only the visitation right. A reading of para 11 and 13 of the complaint gives an impression that having failed in her attempt to secure the custody of the child, she appears to have filed the instant complaint with an oblique motive to prejudice the mind of the court dealing with her guardianship application.
12. Be that as it may. In the complaint, she has alleged that the minor child herself complained to her that the respondent No.2 / father was misbehaving with her 8 and sexually harassing her while giving her bath and massage. Apart from the said allegation, there is absolutely no material to substantiate the said allegation. The impugned order reveals that petitioner has not examined any other witness to show that the child had complained the alleged incident either to her grand- parents or other relatives or the schoolmates or her teachers or for that matter, to the NIMHANS authorities who had independently examined her. On the other hand, the evaluators in NIMHANS as per their report have unequivocally stated thus:
" Both father and child displayed good bonding and attachment during play interactions. They both conversed in Hindi very well.
Anvita did not exhibit any anxiety of fear in presence of her father. Both looked very comfortable in each other's company. Anvita did not show any anxiety on separation from father during child's individual session with therapist.
Child reported that her mummy used to scold her and make her say bad things about father threatening that if child does not report these 9 things to police, mummy will not allow child to meet Elsa.
Child reported that she is not having any difficulties right now as she is with her papa who is able to care for her adequately."
13. In the backdrop of this report, the statement made by the child under S.164 Cr.P.C. when perused, it is pertinent to note that even before the Magistrate, she has stated that nothing of the sort as alleged in the complaint had happened to her from her father. Her statement is reproduced below in verbatim:
"Date 05.05.2018 As per the penal code 164 below is the statement of the victim When asked which school you study at and where do you stay, the girl said that I will not disclose the school's name and I'm not aware of the address I live at.
On asking why did you come here, she said that my father got me here to talk to you and told that I should tell the truth about what happened and what did not happen.
I don't know where I have come to.10
On being asked have you faced any kind of problem or if any issue has happened, the girl responded that from my father, nothing has happened.
He never did any bad touch to me. When I was around 4 years he used to help me take bath to clean myself that too only when my grandma was not feeling well. Usually my grandma helps me to take bath.
Now I am 8 years old, so to most extent I take bath myself. When I take head bath, and my grandma is not there, I dress myself to hide my private parts and my father helps me take head bath.
But he has never done any bad touch to me. The girl was in between saying that I don't want to live with my mother and I'm happy to live with my father. I don't like my mother. She asks me to lie about my father. I was always that she will beat me and she used to punish me for small small mistakes. (Pg 2 Line 7-10 until full stop) My mother wants to take me to her house, but I don't like my maternal grandfather who lives there.(Line 10 starts after full stop-12 in pg 2) He does not treats me in civilized manner (who hamare saath sabhya wayawahar nahin karte hain) (Line 12-13, ends at full stop in pg 2) 11 I have to eat junk food and watch a lot of TV and when I go to toilet or when I take bath my grandpa opens the door and stares at me. Even then my mother asks me to call him baba and I don't like it (After full stop of line 13-16) The girl stopped speaking after saying that there is nothing more."
14. The learned counsel for the petitioner has taken a strong exception to the above statement mainly on the ground that the requisite formalities as provided under Sections 24 and 25 of POCSO Act have not been followed. In view of this objection, let me now refer to these provisions to find out whether the formalities prescribed therein have been duly followed so as to place reliance on the statement.
Sections 24 and 25 read as under:
"24. Recording of statement of a child.-
(1) The statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a woman police officer not below the rank of sub-inspector.12
(2) The police officer while recording the statement of the child shall not be in uniform.
(3) The police officer making the investigation, shall, while examining the child, ensure that at no point of time the child come in the contact in any way with the accused.
(4) No child shall be detained in the police station in the night for any reason.
(5) The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child.
25. Recording of statement of a child by Magistrate.-
(1) If the statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973 (2 of 1974) (herein referred to as the Code), the Magistrate recording such statement shall, notwithstanding anything contained therein, record the statement as spoken by the child:
Provided that the provisions contained in the first proviso to sub-section (1) of section 164 of the Code shall, so far it permits the presence of the advocate of the accused shall not apply in this case.
(2) The Magistrate shall provide to the child and his parents or his representative, a copy of the 13 document specified under section 207 of the Code, upon the final report being filed by the police under section 173 of that Code."
15. In order to show that the above procedure has been meticulously followed, the learned Magistrate has recorded at the foot of the above statement, as extracted here below:
"This statement has been recorded in Hindi language by the child and transcribed in Kannada. The statement has been recorded on camera. At the time of statement, the Magistrate, the child, the person making the video recording and the lady from forensics, only these were present."
From the above endorsement, it is clear that the respondent No.2 was nowhere present at the spot while recording the statement of the minor. No doubt the learned Magistrate has noted in the statement that the minor child was brought to the Court by her father namely, respondent No.2. But I do not find anything unusual or unnatural about it as the custody of the child was with the father / respondent No.2 and therefore, except him, no other person could have brought the child to the Court. In the said circumstances, merely because the child was 14 brought to the court by the father, the veracity of the statement made by her cannot be doubted. A wholesome reading of this statement leads to the inevitable conclusion that the child was not subjected to any sexual harassment or sexual assault by respondent No.2 / father as alleged in the complaint.
16. In the light of the above circumstances, the Special Court was justified in accepting the final opinion as per the 'B' report submitted by the Investigating Officer and consequently rejecting the protest petition filed by the petitioner.
For the above reasons, the petition being devoid of merits is liable to be dismissed and is accordingly, dismissed.
It is made clear that the observations made in this Order are confined to the contentions urged in the petition and the same shall not influence any other Court dealing with any other dispute/s between the parties.
Sd/-
JUDGE sac*