Indian Penal Code, 1860 (45 of 1860), Section 313, 34, 406, 498-A -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Causing miscarriage without woman’s consent – Cruelty -- Compromise quashing of FIR -- Contesting parties have amicably resolved their issue, thus, no useful purpose would be served by continuing the proceedings -- Alleged offences are of pre-dominantly private in nature and no moral turpitude or interest of public at large is involved -- There appears to be no chance of conviction, the continuance of the proceedings would just waste valuable judicial time – FIR under Sections 313, 34, 406 and 498A of IPC and all other consequential proceedings arising therefrom are quashed qua the petitioners.

(Para 6-8)

Indian Penal Code, 1860 (45 of 1860), Sections 376(2)(n), 376-C, 506, 34, 201, 384 -- Information Technology Act, 2000 (21 of 2000), Section 66E, 67A, 67-C – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Rape – Forwarding of Video recording in compromising position – Anticipatory bail -- Prosecution case against the petitioner is that he re-forwarded video recording of prosecutrix with other accused in compromising position to many persons -- On the contention that petitioner is not accused of commission of offence punishable u/s 376, 376-C, 506, 34, 201 and 384 IPC, however, he, at the most, is responsible for commission of offence punishable u/s 66E of IT Act wherein maximum prescribed sentence is three years granted interim bail – Petitioner has joined investigation and no custodial interrogation is required – Petition allowed and the interim bail granted to the petitioner made absolute.

(Para 1-3)

Indian Penal Code, 1860 (45 of 1860), Section 323, 354-A, 376(2)(n), 450, 506 – Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Section 3(1)(w), 14-A (2) – Constitution of India, Article 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape – Regular bail – Appellant is in custody since 03.06.2021 and he is not involved in any other offence -- As per medical report, no human semen detected -- Material witness i.e. prosecutrix stands examined – 8 out of 19 prosecution witnesses examined, thus, there is abysmally low possibility of conclusion of trial in near future -- Accused in view of Article 21 of the Constitution of India has right to defend himself and put forth his stand which cannot be possible while in custody -- Appellant ordered to be released on bail.

(Para 5, 6)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 377 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Rape – Unnatural offence – Regular bail -- Petitioner and the prosecutrix were in relationship and the only reason for lodging of FIR was that the petitioner had shown his inclination to marry some other girl – 7 out of 14 witnesses examined and the testimony of the prosecutrix is also complete coupled with the fact that the petitioner is a young boy of 21 years and is in custody for the last more than 1 ½ years and trial is likely to take long time, he is entitled to the concession of regular bail – Petition allowed.

(Para 4-9)

Indian Penal Code, 1860 (45 of 1860), Section 323, 34, 377, 498A, 506 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Matrimonial dispute – Unnatural offence – Compromise quashing of FIR -- Contesting parties have amicably resolved their issue, thus, no useful purpose would be served by continuing the proceedings -- There appears to be no chance of conviction, the continuance of the proceedings would just waste valuable judicial time and it is well-known fact that courts are already overburdened – Petition allowed, FIR and consequential proceedings quashed.

(Para 6-8)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439(2) -- Indian Penal Code, 1860 (45 of 1860), Section 363, 366-A, 376(2)(N) – Regular bail – Cancellation of bail – Earlier bail u/ss 363, 366-A IPC – Later Section 376(2)(N) IPC added -- Section 376(2)(N) of IPC was not in the picture at the time of consideration of bail – Held, simply because the offence u/s 376(2)(N) of IPC has been added is no ground to cancel the bail -- Petition dismissed -- State is at liberty to take the requisite action if so required in accordance with law.

(Para 1, 2, 5)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 438, 437(5), 439(2) – Bail -- Addition of offence – Arrest of accused -- Addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody -- Recourse available to an accused is to surrender and apply afresh for bail in respect of the newly added offences -- Investigating agency is also entitled to move the Court for seeking the custody of the accused by invoking the provisions of 437(5) and 439(2) Cr.P.C. -- Court that may have released the accused on bail or the Appellate Court/superior Court in exercise of special powers conferred on it, can direct a person who has been released on bail earlier, to be arrested and taken into custody.

(Para 20)

B. Indian Penal Code, 1860 (45 of 1860), Section 354, 354-B and 506 (Section 376 added later) – Code of Criminal Procedure, 1973 (2 of 1974), Section 438, 437(5), 439(2) – Anticipatory bail – Rape -- High Court granted anticipatory bail having been swayed by the “star variations in the narration of the prosecutrix” implying thereby that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption – Prosecutrix was not afforded a hearing, no doubt, the State was present and was represented in the said proceedings, but the right of the prosecutrix could not have been whittled down for this reason alone -- Orders granting anticipatory bail to the respondent No. 2/accused quashed and set aside.

(Para 22-26)

Indian Penal Code, 1860 (45 of 1860), Section 313, 376(2)(n), 34 -- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Section 3(2)(5), 14A(2) – Constitution of India, Article 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Rape – Regular bail -- Prosecutrix stands examined, in her examination as well as FIR, the allegation that physical relations with appellant on the pretext of marriage and now he is not solemnizing marriage -- Prosecutrix is major, she met appellant in Jail which prima facie shows that there was consensual relation -- Appellant is in custody since 25.02.2022 and he is not involved in any other offence – Out of 12 prosecution witnesses till date only 5 have been examined, thus, there is abysmally low possibility of conclusion of trial in near future -- In view of Article 21 of the Constitution of India appellant has right to defend himself and put forth his stand which cannot be possible while in custody -- Prosecution has not led any convincing/plausible documentary or oral evidence indicating possibility of appellant being flee from justice or tampering the evidences or winning over/threatening the witnesses – Appeal allowed, appellant ordered to be released on bail.

(Para 5, 6)

Indian Penal Code, 1860 (45 of 1860), Section 376D, 506 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – POCSO -- Gang rape -- Compromise quashing of FIR -- Petitioner solemnized marriage with the victim and she is happily cohabiting with the petitioner, thus, denial of prayer of the petitioner not only would be against the interest of petitioner but also victim and her family members -- Further, there appears to be no chance of conviction, thus, the continuance of the proceedings would just waste valuable judicial time and it is well-known fact that courts are already overburdened – FIR u/s 376D and 506 of IPC and Section 6 of the POCSO Act, 2012 and all other consequential proceedings arising therefrom are quashed qua the petitioner(s).

(Para 1-5)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Indian Penal Code, 1860 (45 of 1860), 375 Exception 2, 376 – POCSO – Rape – Consensual sex with wife aged above 15 years -- Acquittal of accused -- Incident of August-September, 2012 -- Parents and prosecutrix have not supported the prosecution case -- Prosecutrix specifically denied that she was kidnapped forcibly -- Prosecutrix married to the appellant and have also begotten a child out of the said wedlock -- Sexual act by the appellant with the prosecutrix, who are husband and wife, with the latter being above 15 years of age would not amount to rape as per Exception 2 to Section 375 of the IPC -- Conviction is not sustainable -- Appeal allowed, appellant is directed to be set at liberty.

(Para 4, 8-13)

Indian Penal Code, 1860 (45 of 1860), Section 365, 376, 120B – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Rape – Compromise quashing of FIR – Ordinarily FIR u/s 376 of IPC cannot be quashed on the basis of compromise, however, in the present case, prosecutrix is duly wedded wife of one of the petitioners and others are close relatives of her husband – It further appears that FIR was outcome of family discord – Denial of prayer of the petitioners not only would be against the interest of petitioner but also victim and her family members – Further, there appears to be no chance of conviction, thus, the continuance of the proceedings would just waste valuable judicial time and it is well-known fact that courts are already overburdened – Petition allowed, FIR u/s 365, 376 and 120B of IPC and all other consequential proceedings arising therefrom quashed qua the petitioner(s).

(Para 5)

Code of Criminal Procedure, 1973 (2 of 1974), Section 193, 209 -- Indian Penal Code, 1860 (45 of 1860), Section 328, 376, 377 – Rape – Cancellation report -- Cognizance of offence in protest petition u/s 193 Cr.P.C. -- Jurisdiction of Special Court -- Cancellation report filed before the Special Court on oral directions issued by the Judicial Magistrate – Offences exclusively triable by a Special Court – Special Court issued notice to the complainant, whereupon she filed a protest petition and produced preliminary evidence by way of her and her friend’s testimony, and also brought relevant documentary evidence on record -- Cognizance of the offences was taken by the Special Court in exercise of original jurisdiction u/s Section 193 Cr.PC, and the impugned summoning order was passed – Held, Special Court taking cognizance of the offences without any order of committal, has neither caused any prejudice to the petitioner, nor has it resulted in any failure or miscarriage of justice -- It is only an irregularity committed by the Magistrate on the administrative side, in not formally passing the order committing the case -- Such an administrative lapse of procedure cannot divest the Special Court of its original jurisdiction to take cognizance of the offences and summon the petitioner -- Impugned order cannot be held to be without jurisdiction.

(Para 11-14)

A. Indian Penal Code, 1860 (45 of 1860), Section 498-A -- Hindu Marriage Act, 1955 (25 of 1955), Section 11 -- Void marriage – Conviction u/s 498-A IPC – Sustainability of -- Marriage found to be null and void, as such the conviction u/s 498-A IPC would not be sustainable. Shivcharan’s case (2007) 15 SCC 369 relied.

(Para 7)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 378 -- Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 -- Acquittal of accused – Interference in -- Ld. trial Judge by an elaborate reasoning, arrived at after appreciation of evidence, has found that the prosecution has failed to prove the case beyond reasonable doubt – High court reversed the judgment – Held, in an appeal/revision, the High court could have set aside the order of acquittal only if the findings as recorded by the trial Court were perverse or impossible – No perversity in the approach adopted by the learned trial Judge -- Held, High Court ought not to have interfered with the well-reasoned judgment of the trial Judge -- Appeals allowed, judgment and order passed by the High Court quashed and set aside.

(Para 8-11)

Constitution of India, Article 226 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 357 -- Haryana Victims Compensation Scheme, 2013 – Indian Penal Code, 1860 (45 of 1860)Section 376 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 3, 4 -- Compensation to rape victim under repealed scheme – Writ jurisdiction -- Victim cannot be denied benefit merely due to an act of oversight by the Court -- Act of Court should not prejudice her claim to just compensation -- Victim being a minor and 10 years of age, the Court is the supreme guardian of her best interests as parens patriae -- Hence, the deprivation is now being undone in exercise of the power of prerogative writ -- Sending of the petitioner to avail alternative remedy of appeal would be an exercise in futility as the authorities under the scheme cannot award compensation under a repealed scheme – Petition allowed, respondent-District Legal Services Authority directed to award a total compensation of Rs.4,50,000/- as per the Haryana Victim Compensation Scheme, 2013 -- Amount of Rs.4,00,000/- already disbursed be adjusted from the amount above.

(Para 14-16)

A. Indian Penal Code, 1860 (45 of 1860), Section 376 – Breach of promise to marry – Rape -- Difference between giving a false promise and committing breach of promise -- In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise -- So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence u/s 376 IPC – Appellant/ accused acquitted from the charges levelled against him.

(Para 20-25)

B. Indian Penal Code, 1860 (45 of 1860), Section 376 – Code of Criminal Procedure, 1973 (2 of 1974), Section 277 – Language of record of evidence – General direction to all Courts -- Evidence of the witness has to be recorded in the language of the court or in the language of the witness as may be practicable and then get it translated in the language of the court for forming part of the record --  However, recording of evidence of the witness in the translated form in English language only, though the witness gives evidence in the language of the court, or in his/her own vernacular language, is not permissible -- As such, the text and tenor of the evidence and the demeanor of a witness in the court could be appreciated in the best manner only when the evidence is recorded in the language of the witness -- Original deposition of the witness has to be taken into account and not the translated memorandum in English prepared by the Presiding Judge – Directions given to all courts that while recording the evidence of the witnesses, shall duly comply with the provisions of Section 277 of Cr.PC.

(Para 25)

Indian Penal Code, 1860 (45 of 1860), Section 304-B, 306 – Indian Evidence Act, 1872 (1 of 1872), Section 113-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 378 -- Dowry death – Abetment to suicide – Acquittal of accused – Leave to appeal -- Presumption u/s 113-A of Indian Evidence Act -- Principles

(1) The presumption carried in the Indian Evidence Act, is attractable only when the charge drawn against the accused is for an offence punishable under Section 306 of the IPC.

(2) The said statutory provision has a limited effect, in respect of a charge drawn under Section 304-B of the IPC, as the implied presumption, created through the words “shall be deemed to have caused her death”, which hence occur at the end of the relevant statutory provisions, yet do not discharge, the prosecution from adducing evidence qua the deceased being meted cruelty or harassment, in respect of demands of dowry, as, made upon her by her husband, or by his relatives.

(3) That the statutory phrase “and it is shown” which segregates the first, and, second component of the relevant discharging section, cast a conjunctive onus, upon the prosecution to prove the earlier, and, later components' of the relevant charging sections.

(4) That the word “shall be deemed to have caused her death” do not ever discharge the prosecution from adducing evidence rather for unflinchingly proving both the components, as carried in sub-Section (1) of Section 304-B of the IPC.

(5) The evidence necessary for proving the above foundational facts, rather for supporting the ingredients, as carried in Section 304-B IPC, is required to be always adduced by the prosecution, and, the implied presumption, gets strengthened only, when the defence omits to put the relevant exculpatory suggestions to the PWs concerned, and/or fails to secure a favourable answer thereto, rather from the PWs concerned.

For the reasons assigned, no reason to interfere with the impugned verdict of acquittal, as made by the learned trial Court --Leave to appeal against the verdict of acquittal dismissed.

(Para 19, 24)

Indian Penal Code, 1860 (45 of 1860), Section 376, 511 – Rape – Attempt to rape – Acquittal of accused -- Variant stands of prosecutrix – Evidence of offence -- Principles

1. For determining the occurrence of blatant, and, gross improvements or embellishments, made by the prosecutrix in her testification, made before the learned Court below, rather with her previously made statement in writing, a keenest perusal of both has to be made.

2. In case the prosecutrix has made variant stands, at different stages of the investigations, about the date and time of the occurrence, thereupon, such variant stands, do become the plank for making a conclusion, that the prosecutrix has made open, rife, and, blatant improvements or embellishments from her earliest recorded statement in writing.

3. In case the prosecutrix makes variant attributions of criminality to the accused respectively in her statement, recorded by the police, and, before the learned Judicial Magistrate concerned, thereupon, the said variant stands or inter se digression(s), would leave this Court to conclude, that such digression(s) are rife, and, blatant, and, thus the deposition of the prosecutrix, would be construed to be not amenable for assigning any creditworthiness thereto.

4. In case there is an attribution qua the accused that during the course of the relevant occurrence, he had broken the cord of her salwar, thereupon, it became imperative upon the investigating officer concerned, to collect the salwar as well as the broken cord thereof. Omission to make the above collections would also make deep inroads into the veracity of the genesis of the prosecution case.

For the reasons assigned, no reason to interfere with the impugned verdict of acquittal, as made by the learned trial Court -- Appeal dismissed.

(Para 1, 20, 21)

Indian Penal Code, 1860 (45 of 1860), Sections 323, 342, 376-D, 506 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Rape – Regular bail – Petitioner neither named in the FIR, nor in the complainant's statement u/s 164 Cr.P.C., nor in her deposition before the trial Court -- Complainant/prosecutrix is aged about 46 years, investigation completed and the petitioner is in custody since 15.07.2022 -- Case is not likely to conclude in near future – Bail granted.

(Para 3-7)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 506 and 509 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Rape – Compromise/ partial quashing of FIR  -- Petition qua petitioner no. 2 already withdrawn -- Contesting parties amicably resolved their issue -- There appears to be no chance of conviction -- Continuance of the proceedings would just waste valuable judicial time and courts are already over-burdened – Petition allowed, FIR and consequential proceedings arising therefrom quashed qua petitioner no. 1 and 3.

(Para 2-10)

            Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000), Section 12 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Juvenile in conflict with law – POCSO Case – Regular bail -- Mere suggestion of vulnerability of the juvenile, in the opinion of a Probation Officer, to physical, psychological or immoral danger, as also opinion of the Clinical Psychologist regarding cognitive development of the juvenile, are alien to the requirements of Section 12 of the Act -- Being professional advice/opinion cannot afford reasonable ground for believing that the juvenile's release from custody is likely to bring him in association with any known criminal or expose him to physical, psychological or immoral danger – Nothing on record, which can even prima facie afford a ground to so believe -- Not the case that the juvenile's release from custody will defeat the ends of justice and does not fall in any of the exceptions carved out under Section 12 of the Act for declining bail -- Petitioner/juvenile in conflict with law is ordered to be released on bail.

(Para 3, 7-9)

Indian Penal Code, 1860 (45 of 1860), Section 328, 376 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Rape -- Compromise quashing of FIR – Parties have solemnised marriage -- No useful purpose would be served by continuing the proceedings -- No chance of conviction, the continuance of the proceedings would just waste valuable judicial time – Petition allowed – FIR and all other consequential proceedings arising therefrom are quashed qua the petitioner(s).

(Para 5-9)

Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 -- Indian Penal Code, 1860 (45 of 1860), Section 363, 366-A, 376 – Constitution of India, Article 19(1), 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- POCSO -- Rape – Regular bail – Out of 14 prosecution witnesses till date only 02 material witnesses i.e. prosecutrix and complainant have been examined -- Petitioner has suffered incarceration of 02 years, 05 months and 08 days – Petitioner has prima facie case -- A person who seeks to be liberated must take judgment and serve sentence in the event of his conviction -- Detention or arrest not only deprives a person from his fundamental right of personal liberty guaranteed by article 21 but also freedom guaranteed by article 19(1) of Constitution – Petitioner ordered to be released on bail.

(Para 7, 8)

Indian Penal Code, 1860 (45 of 1860), Section 406, 420 – Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 – Anticipatory bail -- Respondent granted anticipatory bail subject to deposit of Rs. 75,000/- on offer made by him – Co-accused paid Rs.6,00,000/- to the petitioner to get concession of bail – Held, process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail -- Recovery of money is essentially within the realm of civil proceedings – Criminal proceedings are being prosecuted only as money recovery proceedings -- Hence, the order granting pre-arrest bail to the respondents stands affirmed but, the condition therein, of payment of Rs.75,000/- by the respondent No.2, stands annulled.

(Para 10-16)

Indian Penal Code, 1860 (45 of 1860), Sections 376, 420 – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 – Anticipatory bail -- Rape -- Petitioner married the complainant though he had not obtained a divorce from a prior marriage – Charge-sheet submitted, after investigation – Interim stay confirmed -- In the event of the arrest, petitioner ordered to be released on bail.

(Para 1-5)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 41, 439 -- Intent of arrest -- Reason of denial of bail are:

– to secure the appearance of the accused at the time of trial;

– to  allay possibility of repeating of offence & jeopardising own life on account of grim prospect of being convicted;

-- to avoid possibility of tampering of evidence and security of witnesses who may be pressurised or maltreated.

(Para 5)

B. Indian Penal Code, 1860 (45 of 1860), Section 376 (2) (N), 343, 506 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Constitution of India, Article 19(1), 21 -- POCSO case – Rape – Regular bail – Detention or arrest not only deprives a person from his fundamental right of personal liberty guaranteed by Article 21 but also freedom guaranteed by article 19(1) of our Constitution – Keeping in mind, the Petitioner is in custody since 27.02.2021, police report u/s 173 of Cr.P.C. stands filed and charges stand framed, prosecution stands examined as well cross-examined, out of total 24 witnesses till date 06 have been examined, thus, there is abysmally law possibility of conclusion of trial in near future, the petitioner is not involved in any other criminal case, petitioner is permanent resident of District Sirsa and have family members and prosecution has not led any convincing/plausible documentary or oral evidence indicating possibility of petitioner being flee from justice or tempering the evidences or winning over/threatening the witnesses, petitioner ordered to be released on bail.

(Para 6, 7)

A. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 – Notice without Domestic incident report -- Domestic incident report is not mandatory -- Sub Divisional Judicial Magistrate has not committed any illegality or irregularity by issuing notice to the petitioner without waiting for the report of Protection Officer.

(Para 13)

B. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12 -- Indian Penal Code, 1860 (45 of 1860), Section 498-A -- Code of Criminal Procedure, 1973 (2 of 1974), Section 125, 127 -- Acquittal u/s 498A IPC – Award of maintenance u/s 125 Cr.P.C. – Acquittal u/s 498A IPC will not create a bar for his wife to seek relief under the provisions of Domestic Violence Act, 2005 -- Payment of maintenance u/s 125 Cr.P.C. or other application u/s 127 Cr.P.C. will not effect the application filed u/s 12 of the Domestic Violence Act, 2005 as the respondent can claim maintenance under the one case subject to adjustment of maintenance already paid by him.

(Para 14, 15)

C. Protection of Women from Domestic Violence Act, 2005 (43 of 2005), Section 12, 13 -- Indian Penal Code, 1860 (45 of 1860), Section 498-A -- Code of Criminal Procedure, 1973 (2 of 1974), Section 468 – Application u/s 12 of DV Act, 2005 after more than 8 years – Limitation -- Violation of any order passed under the DV Act is punishable u/s 13 of D.V. Act, 2005 -- Mere filing of complaint u/s 12 of Domestic Violence Act not barred u/s 468 Cr.P.C -- This section will come into operation when any order passed u/s 12 of the Act is violated – Petition seeking quashing of complaint u/s 12 of the Domestic Violence Act, 2005 dismissed. Kamatchi’s case 2022(2) L.A.R. 222 = (2022) Law Today Live Doc. Id. 16975 relied.

(Para 16-19)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 378(4) – Leave to appeal -- Granting of special leave to appeal against acquittal is a discretionary power.

(Para 6)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 378(4) – Indian Penal Code, 1860 (45 of 1860), Section 376, 452, 506, 166, 167 -- Prevention of Corruption Act, 1988 (49 of 1988), Section 12 -- Rape -- Cancellation report in FIR –  Ld. JMIC dismissed the complaint -- Leave to appeal -- Applicant/ prosecutrix was alleged to be raped on 07.01.2016 and 10.02.2016 – She opted to remain silent after alleged incident of 07.01.2016 and approached police on 10.02.2016 i.e. after second incident -- There is gap of one month between first incident and second incident -- Applicant attempted to implicate police officials who did not agree with her complaint -- MLR was not supporting the case of the applicant -- No injury was found over the body of the applicant -- Complainant/applicant failed to make out prima facie case warranting summoning of alleged accused – There is no infirmity or irregularity in the impugned order whereby trial Court has dismissed the complaint -- Permission for special leave to appeal rejected.

(Para 7, 8)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366, 342, 376 (2) (i) -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Sections 6, 17 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Rape – Regular bail -- Petitioner in custody for a period of 03 years, 04 months and 21 days and not involved in any other case -- Victim has not given any history with regard to penetrative sexual assault during the course of her medical examination -- Victim is not coming forth to depose in the trial Court despite substantial number of adjournments -- Statement of the mother of the victim during the course of trial, that the victim has eloped with some boy on 07.02.2021 – Held, petitioner cannot be incarcerated for a long period of time, particularly, only on the score that the victim is not putting appearance in the trial Court -- Conclusion of trial may take some more time -- Petition allowed and petitioner ordered to be released on bail.

(Para 7, 8)

Indian Penal Code, 1860 (45 of 1860), Sections 376(2)(n), 323 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 10, 12 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Rape – Regular bail -- Physical relation on pretext of marriage -- Petitioner and the prosecutrix were in relationship for a period of 11 years -- It will remain a debatable and moot point as to whether the petitioner was in consensual relationship with the prosecutrix or it was on the basis of false promise to solemnize marriage -- Allegations with regard to sexual assault upon the minor daughter of the prosecutrix have emerged at a subsequent stage to the registration of the FIR -- Petitioner is in custody for a period of 05 months and 16 days and is not involved in any other case – Out of 18 witnesses till date no witness has been examined -- Conclusion of trial is likely to take some time -- Sufficient mitigating circumstances are made out to extend the concession of bail to the petitioner -- Petitioner ordered to be released on bail.

(Para 6-7)

Indian Penal Code, 1860 (45 of 1860), Sections 376B, 376(2)(N), 506, 34 – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- Rape – Anticipatory bail -- Petitioner is a doctor in a government hospital where the complainant was allegedly working as a nurse -- FIR indicates that parties were in a physical relationship since May 2016 -- FIR was lodged in October 2017 -- In the facts and circumstances of the case, custodial interrogation is not required – Direction given in the event of the arrest of the petitioner, he shall be released on bail.

(Para 1-6)

Indian Penal Code, 1860 (45 of 1860), Section 304-B – Indian Evidence Act, 1872 (1 of 1872), Section 113-B – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – Dowry death – Regular bail to mother-in-law – Deceased died an unnatural death within seven years of marriage – As per allegations in the FIR itself on the day of death, the petitioner had informed the complainant about the deceased having locked herself inside the room – After the occurrence the in-laws had shifted the deceased to the hospital – Whether in the facts and circumstances of the case the presumption u/s 113-B of Evidence Act is attracted or not would be subject to the outcome of the trial – Out of total 17 prosecution witnesses, 3 witnesses have been examined – Petitioner ordered to be enlarged on bail.

(Para 1,7)

Indian Penal Code, 1860 (45 of 1860), Sections 304-B, 120-B, 302, 406 – Code of Criminal Procedure, 1973 (2 of 1974), Section 319, 439 -- Murder – Dowry death – Regular bail to mother-in-law -- Petitioner is the mother-in-law of the deceased and is in custody for a period of 01 years, 08 months and 27 days -- It will be debatable and moot point during the course of trial as to whether it was a case of ante-mortem strangulation or suicidal hanging -- Out of 25, examination-in-chief of only one witness has been recorded and thereafter, an application u/s 319 Cr.P.C has been moved -- Conclusion of trial is likely to take some time and no fruitful purpose will be served by detaining the petitioner in further custody -- Petitioner ordered to be released on bail.

(Para 7, 8)

Indian Penal Code, 1860 (45 of 1860), Sections 498-A, 304-B, 406, 302, 34, 506 – Code of Criminal Procedure, 1973 (2 of 1974), Section 378 -- Conviction u/s 306 IPC -- Appeal by complainant seeking conviction for dowry death/ murder -- A young girl expired in less than 02 years after her marriage by suicide -- The mental state of the father can very well be imagined -- However, this alone would not be sufficient to put the blame on respondents No.2 and 3 (husband and mother-in-law) and to fasten criminal liability, the prosecution would be required to prove its case against them beyond reasonable doubt – No complaint was ever made to any authority with regard to the torture being meted out to deceased, no Panchayat was ever convened and no other step was taken – Showed feigned ignorance in cross-examination about her medical condition which was disclosed by DW1/ Doctor, as per whom deceased remained admitted in hospital till 27.07.2018 on account of pregnancy in her fallopian tube for which she had to undergo surgery -- Expenses for the surgery were borne by respondent No.3 and his family -- The ld. trial Court, therefore, rightly came to the conclusion that the ingredients of Sections 304-B or 302 IPC and even those of Sections 406 and 498-A IPC did not stand fulfilled – No perversity in the view taken by the trial Court either on facts or on law and the impugned judgment is well reasoned -- It is now well settled that Courts have to be extremely careful while hearing appeals against acquittal and the judgments of acquittal should not be interfered with lightly – Appeal dismissed.

(Para 8-12)

Indian Penal Code, 1860 (45 of 1860), Section 304-B -- Indian Evidence Act, 1872 (1 of 1872), Section 113-B -- Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Dowry death – Regular bail to husband -- Marriage in May, 2014, wife committed suicide on 4th March, 2021 – In FIR allegations pertaining to harassment caused to the deceased on account of demand of dowry -- Material witnesses examined -- Two minor children are with the grandparents -- Allegations regarding demand of dowry are general in nature -- In the cross-examination, complainant deposed that he did not remember any specific date of harassment caused or demand of dowry made – No cash and vehicle was given in the marriage -- Out of 15 prosecution witnesses, 03 witnesses examined -- Nothing on record to show that the petitioner has any criminal antecedents -- Court cannot ignore the fact that there are two minor children whose future is also at stake – Bail allowed.

(Para 7, 8)

A. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 19(1), 21, 27 – Reporting of offence -- Prompt and proper reporting of is of utmost importance -- Its failure on coming to know about the commission of any offence thereunder would defeat the very purpose and object of the Act -- Medical examination of the victim as also the accused would give many important clues in a case that falls under the POCSO Act – Clothes of the parties would also offer very reliable evidence in cases of rape – If it was committed by an unknown person, it would also enable the investigating agency to commence investigation without wasting time and ultimately to secure the arrest and medical examination of the culprit – Non-reporting of sexual assault against a minor child despite knowledge is a serious crime and more often than not, it is an attempt to shield the offenders of the crime of sexual assault -- A conjoint reading of Sections 19(1) and 21 of POCSO Act, such persons are also liable to be proceeded with, in accordance with law.

(Para 15, 22)

B. Indian Evidence Act, 1872 (1 of 1872), Section 45 – Medical evidence in sexual offences -- In relation to sexual offences medical evidence has much corroborative value.

(Para 15)

C. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4, 6 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- POCSO case – Quashing of FIR and charge-sheet – Inherent power u/s 482 Cr.P.C. -- If FIR and the materials collected disclose a cognizable offence and the final report filed u/s 173(2), Cr.P.C. on completion of investigation based on it would reveal that the ingredients to constitute an offence under the POCSO Act and a prima facie case against the persons named therein as accused, the truthfulness, sufficiency or admissibility of the evidence are not matters falling within the purview of exercise of power under Section 482 Cr.P.C. and undoubtedly they are matters to be done by the Trial Court at the time of trial.

(Para 18)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 161, 164 -- Indian Evidence Act, 1872 (1 of 1872), Section 145, 157 – Evidential value of statement u/s 161,  164 Cr.P.C. – Statements recorded u/s 161 Cr.P.C. are inadmissible in evidence and its use is limited for the purposes as provided under Sections 145 and 157 of the Indian Evidence Act, 1872 -- As a matter of fact, statement recorded under Section 164, Cr.P.C. can also be used only for such purposes.

(Para 20)

Indian Penal Code, 1860 (45 of 1860), Section 375 -- Indian Penal Code, 1860 (45 of 1860), Section 375 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 164, 164-A, 173 – Constitution of India, Article 142 -- Rape case Guidelines -- Supreme Court in case of State of Karnataka by Nonavinakere Police vs. Shivanna alias Tarkari Shivanna, (2014) 8 SCC 913 exercising powers under Article 142 of the Constitution issued interim directions in the form of mandamus to all the Police Stations-in-Charge in the entire country to follow:

“10.1. Upon receipt of information relating to the commission of offence of rape, the investigating officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section 164 CrPC. A copy of the statement under Section 164 CrPC should be handed over to the investigating officer immediately with a specific direction that the contents of such statement under Section 164 CrPC should not be disclosed to any person till charge-sheet/report under Section 173 CrPC is filed.

10.2. The investigating officer shall as far as possible take the victim to the nearest Lady Metropolitan/preferably Lady Judicial Magistrate.

10.3. The investigating officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan/preferably Lady Judicial Magistrate as aforesaid.

10.4. If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the investigating officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.

10.5. Medical examination of the victim : Section 164-A CrPC inserted by Act 25 of 2005 in CrPC imposes an obligation on the part of investigating officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under Section 164 CrPC.”

Supreme Court gave suggestion to every High Court that the appropriate modifications/amendments be made to the Criminal Practice/Trial Rules incorporating provisions consistent with the directions issued in the decisions in Shivanna’s case (2014) 8 SCC 913.

(Para 1-7)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 319 – Summoning of additional accused -- Power of Court -- Power u/s 319 Cr.P.c. is discretionary and extra ordinary, which is to be exercised very sparingly only when strong and cogent evidence has been led against a person, who is sought to be summoned -- Court must be satisfied from the evidence collected during the enquiry or in the trial that the person sought to be summoned as an additional accused has committed an offence for which he deserves to be tried alongwith already arraigned accused.

(Para 7)

B. Indian Penal Code, 1860 (45 of 1860), Section 376 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Sections 3, 4 – Code of Criminal Procedure, 1973 (2 of 1974), Section 319 – POCSO matter -- Rape -- Summoning of additional accused – In the complaint there is no allegation whatsoever against MK (sister of main accused/ JS) – Only reference in the FIR is that MK is the sister of JS and she used to talk with the prosecutrix on phone -- In the statement recorded u/s 164 of the Code, the prosecutrix stated that MK used to say that she wants that the prosecutrix should become her Bhabi (sister-in-law), and that the prosecutrix revealed about the incident to MK but she assured her that there is nothing to worry as JS would get married to her -- However, in her deposition, the prosecutrix has stated that, it was MK, who had called her on phone and forced her to accompany them on a trip, but when she reached the hotel, she found that MK was not present there – It is evident that there is a consistent change in the version of the incident by the prosecutrix to enmesh the sister of JS in the criminal case -- Parameters laid down by the Supreme Court in Hardeep Singh’s case (2014) 3 SCC 92 and Manjeet Singh’s case 2021 SCC Online 632 are not fulfilled and the order passed by the Trial Court declining the application for summoning MK does not call for any interference -- Petition dismissed.

(Para 8-10)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A, 34, 376 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Sections 3, 4 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- POCSO matter – Rape – Regular bail -- Prosecutrix went missing from home on 10.01.2021 and was recovered on 25.01.2021 -- Petitioner is behind bars from 25.01.2021 -- Out of 17 prosecution witnesses, 10 examined including the complainant and the victim -- Nothing on record to show that the petitioner has any criminal antecedents -- Allegations in the FIR by father that there were friendly relations between the petitioner and the victim which were not acceptable to them -- Trial of the case will take sufficient long time -- Petition allowed, petitioner ordered to be released on bail.

(Para 6, 7)

A. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 7, 8, 9, 11 -- Indian Penal Code, 1860 (45 of 1860), Sections 354A(1)(i),(ii) & (iv), 354 A-(2) and 354-A(3) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 164, 438 -- POCSO matter – Anticipatory bail –While granting bail High court observed “… Though on the one side, there is a possibility of such hugs and kisses being manifestations of affection by an uncle, one cannot ignore the possibility of such show of 'affections' being coloured by sexual overtones. However, those are all matters for investigation.” – Held, observations made are totally unwarranted and have been made overlooking the specific allegations contained in the FIR, duly supported with the Statement of the victim-girl child u/s 164 of the Code – High Court ought not to have exercised its jurisdiction in granting protection against arrest, as the Investigating Officer deserves free-hand to take the investigation to its logical conclusion.

(Para 10, 11)

B. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 7, 8, 9, 11, 29 -- Indian Penal Code, 1860 (45 of 1860), Sections 354A(1)(i),(ii) & (iv), 354 A-(2) and 354-A(3) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- POCSO matter – Anticipatory bail –Victim-girl is traumatized to such a high degree that her academic pursuits have been adversely impacted alone, coupled with the legislative intent especially reflected through Section 29 of the POCSO Act, are sufficient to dissuade a Court from exercising its discretionary jurisdiction in granting pre-arrest bail.

(Para 12)

C. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 7, 8, 9, 11, 29 -- Indian Penal Code, 1860 (45 of 1860), Sections 354A(1)(i),(ii) & (iv), 354 A-(2) and 354-A(3) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 438 -- POCSO matter – Anticipatory bail -- Charge-sheet filed -- It will be unfair to presume that the Investigating Officer does not require Respondent No.1 for custodial interrogation for the purpose of further investigation.

(Para 14)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 164, 438 -- Anticipatory bail – Custodial interrogation -- In many anticipatory bail matters, one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted -- There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail -- Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail.

(Para 15)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 164, 438 -- POCSO matter – Anticipatory bail – Prima facie case – Nature of offence -- Custodial interrogation -- There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail -- First and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused -- Thereafter, the nature of the offence should be looked into along with the severity of the punishment -- Custodial interrogation can be one of the grounds to decline anticipatory bail -- However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.

(Para 15

F. Binding precedent – Judgment of Co-ordinate Bench of High Court --  Decision of the Kerala High Court rendered in the Joy’s case (2019) 1 KLT 935 deals with Section 29 of the POCSO Act -- When the learned Judge decided the anticipatory bail application, the decision of the coordinate Bench in the case of Joy was binding to him -- He could not have ignored a binding decision -- It is a different thing to say that if he may disagree with the view taken and accordingly refer it to a larger Bench.

(Para 16)

Indian Penal Code, 1860 (45 of 1860), Section 498A, 120B, 323, 324 -- Dowry Prohibition Act, 1961, (28 of 1961), Section 3, 4 – Code of Criminal Procedure, 1973 (2 of 1974), Section 438 – FIR in matrimonial dispute --Anticipatory bail – Condition of ad-interim compensation of Rs.10 lacs in favour of wife – Legality of – Held, no reasonable justification for the High Court to call upon the appellant to submit a demand draft of Rs.10 lakhs in availing the benefit of pre-arrest bail -- Appeal allowed and the order passed by the High Court directing the appellant to deposit a Demand Draft of Rs. 10 Lakhs is hereby set aside.

(Para 2-7)

Indian Penal Code, 1860 (45 of 1860), Section 377, 511 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 8, 12 – Code of Criminal Procedure, 1973 (2 of 1974), Section 439 – POCSO matter -- Attempt to do unnatural offence – Regular bail -- Undoubtedly, petitioner is found involved in unnatural and shameful activity, though, could not fully succeeded in his malicious aim -- Still considering the fact that both the material witnesses i.e. victim and the complainant have already been examined and petitioner, who is said to be of 54 years of age, is not involved in any other similar shameful act in his past – Petitioner is inside jail for the last more than 07 months -- Court deemed appropriate to release the petitioner on bail.

(Para 10)

Indian Penal Code, 1860 (45 of 1860), Sections 363, 366-A, 376 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 4 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – POCSO matter -- Rape – Compromise quashing of FIR -- Subsequent to the registration of the FIR and after attaining the age of majority, the petitioner has solemnized marriage with the victim/respondent no.3 -- FIR and all the consequential proceedings arising therefrom quashed, however, qua the petitioner.

(Para 1-3, 13)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 157(1) -- Delay in forwarding FIR to Magistrate -- Effect of -- Delay in forwarding the FIR may certainly indicate the failure of one of the external checks to determine whether the FIR was manipulated later or whether it was registered either to fix someone other than the real culprit or to allow the real culprit to escape -- While every delay in forwarding the FIR may not necessarily be fatal to the case of the prosecution, Courts may be duty bound to see the effect of such delay on the investigation and even the creditworthiness of the investigation.

(Para 61)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 157(1) -- Delay in forwarding FIR to Magistrate – Effect of -- Section 157(1) of the Code requires the officer-in-charge of the police station to send the FIR, “forthwith” -- Delay in transmission of the FIR to the court, may not, per se, be fatal, without anything more -- But in the case on hand, the delay was not small -- FIR said to have been registered on 08.03.2012 was received by the Court of the Chief Judicial Magistrate on 13.03.2012 -- It is true that no question was put in cross-examination to the Investigation Officer about this delay -- But the evidence of P.Ws. 1 to 3 is untrustworthy, particularly on the question of the origin and genesis of the first information report -- Therefore the inordinate delay in the FIR reaching the jurisdictional court assumes significance -- Word "forthwith' in Section 157(1) of the Code is to be understood in the context of the given facts and circumstances of each case and a straight-jacket formula cannot be applied in all cases -- But where ocular evidence is found to be unreliable and thus unacceptable, a long delay has to be taken note of by the Court.

(Para 61-66)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 157(1) -- Delay in forwarding FIR to Magistrate – Effect of -- Mandate of Section 157(1) of the Code being clear, the prosecution is expected to place on record the basic foundational facts, such as, the Officer who took the first information report to the jurisdictional court, the authority which directed such a course of action and the mode by which it was complied -- Explaining the delay is a different aspect than placing the material in compliance of the Code.

(Para 68)

D. Indian Penal Code, 1860 (45 of 1860), Section 302, 376 -- Rape with Murder – Medical examination of accused – Requirement of -- In cases where the victim of rape is alive and is in a position to testify in court, it may be possible for the prosecution to take a chance by not medically examining the accused -- But in cases where the victim is dead and the offence is sought to be established only by circumstantial evidence, medical evidence assumes great importance -- Failure of the prosecution to produce such evidence, despite there being no obstacle from the accused or anyone, will certainly create a gaping hole in the case of the prosecution and give rise to a serious doubt on the case of the prosecution -- Section 53A enables the prosecution to obtain a significant piece of evidence to prove the charge -- Failure of the prosecution in this case to subject the appellant to medical examination is certainly fatal to the prosecution case especially when the ocular evidence is found to be not trustworthy -- Failure to obtain the report of the Forensic Sciences Laboratory on the blood/semen stain on the salwar worn by the victim, compounds the failure of the prosecution.

(Para 80)

E. Indian Penal Code, 1860 (45 of 1860), Section 302, 376 -- Rape with Murder – Scrutiny of evidence – Acquittal of accused -- When the offence is heinous, the Court is required to put the material evidence under a higher scrutiny -- Sufficient care has not been taken in the assessment of the statements made by P.Ws. 1 to 3 by Trail Court and High Court -- No one spoke as to who sent the FIR to the court and when it was sent -- Strangely even the copy of the post-mortem report was admittedly received by SHO on the 13.03.2012 though the post mortem was conducted on the 09.03.2012 -- It was the same date on which the FIR reached the Court -- These factors certainly create a strong suspicion on the story as projected by the prosecution – By fixing culpability upon the appellant without any shred of evidence which will stand the scrutiny, the prosecution has done injustice to the appellant -- Court cannot make someone, a victim of injustice, to compensate for the injustice to the victim of a crime -- Appellant is so poor that he could not afford to engage a lawyer even in the Sessions Court, service of an advocate was provided as amicus -- In cases of such nature, the responsibility of the Court becomes more onerous – Court not convinced that the guilt of the appellant stood established beyond reasonable doubt -- Appeals allowed and the conviction and penalty are set aside -- Appellant shall be released forthwith if not wanted in connection with any other case.

(Para 83-85)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Recalling of witness -- In case the evidence sought to be brought on record is essential to the issue involved, the powers u/s 311 Cr.P.C. must be invoked.

(Para 1, 11)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Indian Penal Code, 1860 (45 of 1860), Section 376, 506 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6 – Rape -- Recalling of witness – In cross-examination of the victim no question was put regarding the charge against the accused -- Though, change of counsel in a case cannot always be ground for recalling and re-examination of witness, more so, in cases of sexual offences, however, the facts and circumstances of each case have to be appreciated before deciding an application u/s 311 Cr.P.C.

(Para 12)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Indian Penal Code, 1860 (45 of 1860), Section 376, 506 -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 6, 33(5) – Rape -- Recalling of witness – Bar under 33(5) of POCSO Act -- Issue concerning determination of the age of the victim as well as cross-examination of the victim regarding the allegations leveled against the accused is essential, as only that can unfold the truth -- Fair trial demands that opportunity to defend the accused be afforded -- Section 33(5) cannot be read alone, as a balance of rights u/s 33(5) and Section 311 Cr.P.C. needs to be maintained -- Right to fair trial as well as the bar under Section 33(5) both need to be looked into while deciding such application, depending upon facts of each case – It is not a case of the prosecution that the witness has been repeatedly called for cross-examination -- Application moved on the first available opportunity to the accused/ applicant who, was in judicial custody -- Application u/s 311 Cr.P.C. allowed.

(Para 16-21)

A. Indian Penal Code, 1860 (45 of 1860), Section 376 -- Rape -- Onus of proof -- In a case of grave charge of rape, the onus always lies on the prosecution to prove each of the ingredients of the offence, it seeks to establish and the onus never shifts.

(Para 5)

B. Indian Penal Code, 1860 (45 of 1860), Section 376, 452 – Code of Criminal Procedure, 1973 (2 of 1974), Section 378(3) -- Rape – Acquittal – Leave to appeal -- Victim alleged that the accused-respondent had gagged her mouth and had torn her clothes before committing the rape upon her -- Victim was a rustic and stoutly built lady and was well nourished -- It was at around 04.30 AM and normally in villages, it is the time for the villagers to wake up -- It is equally unbelievable that the accused-respondent would have sneaked in the house of the victim at such an hour without the consent of the victim -- Moreover, the victim was a grown up married lady and could not only have resisted his move, but could have also raised an alarm -- Victim did not suffer any injury -- Evidence led by the defence makes out that the victim was not having good relations with her husband but had shared a very close and intimate relationship with the respondent -- Father and husband of the victim were sleeping just adjoining the court-yard -- Even where the rape was allegedly committed, her children were sleeping and the story put forth by the prosecution appears to be doubtful – Acquittal order upheld.

(Para 6-11)

Indian Penal Code, 1860 (45 of 1860), Sections 498A, 323, 354, 506, 509 – Indian Evidence Act, 1872 (1 of 1872), Section 45 – FIR in matrimonial dispute – DNA profiling of children – Permissibility of -- Blood sampling of the children was directed, who were not parties to the proceeding nor were their status required to be examined in the complaint -- This raised doubt on their legitimacy of being borne to legally wedded parents -- Section 112 of the Evidence Act, also gives a protective cover from allegations of this nature -- Paternity of the children was not in question in the subject-proceeding -- Held, merely because something is permissible under the law cannot be directed as a matter of course to be performed particularly when a direction to that effect would be invasive to the physical autonomy of a person -- Such direction would violate the privacy right of the persons subjected to such tests and could be prejudicial to the future of the two children who were also sought to be brought within the ambit of the Trial Court’s direction – Appeal allowed, Order of the Trial Court and High Court set aside.

(Para 6-11)

Code of Criminal Procedure, 1973 (2 of 1974), Section 439 -- Indian Penal Code, 1860 (45 of 1860), Sections 341, 342, 376(D) -- Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Sections 4, 8 -- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (33 of 1989), Section 3(4)(w)(i) – POCSO matter – Regular bail – Ad-interim compensation as a ground -- High Court not adverted to the parameters of Section 439 Cr.P.C. which are required to be observed while granting or declining regular bail to an accused, especially when he is involved in a heinous crime -- Offer of payment of ad interim compensation to the victim cannot be a ground to release the accused on bail -- Impugned order set aside, High Court requested to hear and dispose of the bail application on merits within a period of three months -- Respondent ordered to be taken into custody and bail bond cancelled.

(Para 7, 8)

Indian Penal Code, 1860 (45 of 1860), Sections 377, 354, 406, 498A, 34 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Unnatural offence – Matrimonial dispute – Compromise quashing of FIR – Where settlement has taken place, even the offence u/s 377 IPC can be compromised and FIR can be quashed as parties have to move ahead in life -- Offence u/s 354 IPC also allowed to be quashed to put an end to all bickering between the parties and allow them to begin a new chapter of their lives -- FIR for offences under Sections 406/498A/354/377/34 IPC and the proceedings emanating therefrom quashed.

(Para 1, 6)

A. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 7, 8 -- Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 – POCSO case – Age of victim – Determination of – Stage of case -- Proof or determination of age of the victim in a POCSO case is foundational and for such an important issue, the same can be raised at any stage of the lifetime of the case, even before the appellate forum -- Impugned judgment and sentence set aside and quashed -- Matter remanded to the court of the learned Special Judge (POCSO), to determine the age of the victim and to pass the final order upon appreciation of evidence under the changed circumstances.

(Para 15-21)

B. Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 7, 8 -- Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 – Age of the victim – Determination of -- Nothing on record to indicate the actual age of the victim either by medical or documentary evidence -- Special Court directed to take up the exercise of determination of the age of the victim in accordance with Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 and to allow the parties to produce relevant documents, examine and cross-examine the witnesses and to be heard on the issue and thereafter to decide on the issue.

(Para 16-19)

Indian Penal Code, 1860 (45 of 1860), Section 376, 420 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Rape – Consensual relationship – Quashing of FIR -- Parties chose to have physical relationship without marriage for a considerable period of time -- For some reason, the parties fell apart -- It can happen both before or after marriage -- Thereafter also three years passed when respondent No.2 decided to register a FIR -- Facts are so glaring as set out aforesaid that the court have no hesitation in quashing the FIR and bringing the proceedings to a close.

(Para 4)