Bombay High Court
Ku Kalyani D/O Subhash Gandlatwar vs State Of Mah., Thr. Police Station ... on 9 February, 2021
Bench: S.B. Shukre, Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.1071/2019
PETITIONER : Ku. Kalyani D/o Subhash Gandlatwar
(Ori. Accused Aged about :
No.2) Occupation : nil
R/o Lalganj Gujari, Near Zade square,
Itwari, Dahi Bazaar, Nagpur - 02.
...VERSUS....
RESPONDENTS : 1. State of Maharashtra
Through Police Station
Shanti Nagar, Nagpur.
2. Child Welfare Committee
Through Its Chairman
Angulimal Nagar, Patankar Chowk,
Nagpur.
3. Amitkumar Upalap
Aged about :
Occupation : Service
R/o Bungalow No.33, Rai Imperial
Chinchbahavan, Nagpur
and
Office at Administrative Building No.2
5th Floor Opposite Zilla Parishad
Civil Lines, Nagpur 01.
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Mrs. Gauri Venkatraman, Advocate with Mr. Yash Vankatraman, Advocate for
petitioner
Ms Tajwar Khan, Addl. Public Prosecutor for respondent no.1
Mr. R.B. Gaikwad, Advocate for respondent no.3
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CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
Judgment reserved on : 01/02/2021
Judgment pronounced on : 09/02/2021
J U D G M E N T : (PER : AVINASH G. GHAROTE, J.)
1. Heard. Rule. Rule made returnable forthwith.
2. The present petition, seeks to quash and set aside the
F.I.R., dated 25/10/2017 filed by the Shanti Nagar Police Station,
Nagpur in Criminal Case No.287/2017; the charge-sheet dated
26/11/2017 and supplementary charge-sheet dated 26/10/2019 as
well as the report of the Child Welfare Committee dated 24/10/2017
on the complaint of the respondent no.3.
3. The facts, in so far as they are relevant to the present
case, are as under :
(i) The petitioner and the respondent no.3 were related
earlier as the petitioner, being sister of Sonali, erstwhile wife of
respondent no.3, was the sister-in-law of respondent no.3.
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(ii) The petitioner's sister Sonali was married to the
respondent no.3 - Amitkumar, from which marriage, they have a son
named Veer @ Virendra.
(iii) The marriage of the respondent no.3 and Smt. Sonali,
came to be dissolved by a decree of divorce by mutual consent dated
16/12/2013, and under the terms of the decree for divorce, the
child, Veer who was aged 2 years, at that time, was to remain with
his mother Smt. Sonali, who now resides in the joint family which
includes her sister (the present petitioner), her brother Shri Rahul
Gandlatwar and other members.
(iv) The husband - respondent no.3 was granted access to
the child, which order of access came to be modified from time to
time.
(v) The respondent no.3, in the meantime, had remarried
and had a daughter, named Aditi from the second marriage, which
was 2 and half years in 2017.
(vi) On 10/09/2017, a complaint came to be filed by the
respondent no.3, alleging that the child was being assaulted and
treated cruelly by his mother Smt. Sonali and her family members,
including the present petitioner and her brother Rahul.
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(vii) On 21/9/2017, a complaint came to be lodged by the
respondent no.3, with the Child Welfare Committee, Nagpur, to the
effect that the child Veer, had informed him that the child's mother
Smt. Sonali and maternal Uncle Shri Rahul were treating him cruelly
and so also that the present petitioner, was sexually abusing the
child, who by that time had turned 6 years of age. The allegations of
sexual abuse were to the effect that when the minor child Veer, was
staying with his mother, he was sleeping between the petitioner and
his mother, at which time, the petitioner, used to insert her hands
into the pant of the child and fondle and play with his penis and also
touch his anus and so also used to take the hand of the child and
touch her vagina and anus. The petitioner also had threatened the
child not to disclose the same to his mother, otherwise she would
beat him. This is contained in para 5 of the compliant dated
21/9/2017. The Child Welfare Committee, referred the matter to the
Protection Officer and asked her to meet that child and record his
statement.
(viii) On 21/10/2017, the respondent no.3 had taken
custody of the child for access, and was to return the child on
23/10/2017, which was not done.
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(ix) On 23/10/2017 in the presence of witnesses, the
Protection Officer, District Child Welfare Committee, Smt. Sadhna
Hatwar, met the child, recorded his statement in absence of the
respondent no.3, when the child Veer stated that when he was
staying with his mother, he was sleeping between the petitioner and
his mother, at which time, the petitioner, used to insert her hands
into the pant of the child and fondle and play with his penis and also
touch his anus and so also used to take the hand of the child and
touch her vagina and anus. The petitioner also had threatened the
child not to disclose the same to his mother, otherwise she would
beat him. The Protection Officer forwarded the same to the Child
Welfare Committee. (pg.156)
(x) The Child welfare Committee, on 24/10/2017, upon
receipt of the report of the Protection Officer found prima facie
incidence of sexual abuse by the petitioner and cruel treatment by
his mother Smt. Sonali and maternal Uncle Shri Rahul and therefore
directed that appropriate action be taken.
(xi) On 25/10/2017 at the instance of the Child Welfare
Committee an F.I.R. No.3093 of 2017 dated 25/10/2017 came to be
registered for the alleged acts of sexual misconduct, by the present
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petitioner as well as cruel treatment by his mother Smt. Sonali and
maternal uncle Shri Rahul, under Sections 8 and 12 of the Protection
of Children from Sexual Offences Act, 2012 (for short, "the POCSO
Act") and also Section 75 of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (for short "the J.J. Act"
hereinafter) and Section 323 read with 34 of Indian Penal Code (for
short "I.P.C." hereinafter).
(xii) On 8/11/2017, the J.M.F.C. Court No.2, Nagpur,
recorded the statement of the child Veer, under section 164 of Cr.P.C.
in which also the child reiterated the statement as made before the
Protection Officer, on 23/10/2017.
(xiii) On 28/10/2017, the petitioner as well as Smt. Sonali
and Shri Rahul were intimated by the Police about the lodging of the
F.I.R.
(xiv) On 26/11/2017, charge-sheet was filed, in which the
petitioner as well as the mother and maternal uncle Rahul were
charged with the offences punishable under Sections 8 and 12 of
POCSO Act, Section 75 of the J.J. Act and Section 323 and 34 of
I.P.C.
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(xv) Smt. Sonali, the mother filed an application before the
Family Court bearing M.J.C. No.79/2017, seeking restoration of the
custody of the child.
(xvi) On 24/01/2018, an application for discharge was filed
by the mother Sonali as well as the maternal uncle Rahul.
(xvii) Smt. Sonali, the mother, also filed Criminal Writ Petition
No.399/2018, seeking a writ of Habeas Corpus for production of a
minor child Veer. This petition came to be disposed of by an order
dated 23/7/2018 in view of the pending M.J.C. No.79/2017 with a
direction to the Family Court to decide application for grant of
interim custody of the child within a period of four weeks and
permitting the mother access to the child before the Counselor on
first and third Saturday between 11:00 to 2:00 p.m.
(xviii) On 18/09/2018, the Family Court No.2, Nagpur,
rejected the application for restoration of custody, M.J.C.
No.79/2017, as filed by Smt. Sonali.
(xix) On 19/09/2018, statement of the child Veer came to be
recorded by the Investigating Officer Kiran Kursange, where the
child restated those allegations and also stated that when he used to
narrate the incidences to his mother, she used to disregard them.
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(xx) On 25/09/2018, a supplementary charge-sheet was
filed by adding charges under Sections 16, 19 and 21 of POCSO Act.
(xxi) The Special Court under POCSO Act rejected the
application for discharge as filed by the mother and maternal uncle,
by an order dated 5/10/2018, Special Child Case No.287/2017.
(xxii) Against the above rejection, Criminal Revision
No.229/2018 was filed by the mother and maternal uncle Rahul,
which came to be allowed by this Court by judgment dated
14/2/2019. A review vide Criminal Application No.70/2019 came to
be rejected by order dated 12/07/2019.
(xxiii) SLP (Criminal) Diary No.34641/2019 against the same,
by the respondent no.3, came to be dismissed by the Hon'ble Apex
Court by order dated 18/10/2019. Thus the discharge of the mother
Sonali and maternal uncle Rahul has been maintained by the
Hon'ble Apex Court.
It is in this background, that the petitioner has filed the
present petition, seeking quashing of the F.I.R. and other reliefs as
stated above.
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4. Mrs. Gauri Venkatraman, learned Counsel for the
petitioner submits that the allegations, against the petitioner, stem
from a malafide action on part of the respondent no.3, who was
nurturing a grudge against the petitioner, who was supporting her
sister in her discord with the respondent no.3 and has been initiated
for settling personal scores and for getting permanent custody of the
child by making false allegations. It is submitted that the respondent
no.3 has ill-will against the petitioner. Though the F.I.R. dated
25/10/2017, in para 5 states that the allegations about abuse had
come to the knowledge of the respondent no.3 in February, 2017
itself, no complaint of any nature was made till 25/10/2017. She
submits that the delay itself is telling and reflects the ill-will and
malafides of the respondent no.3. She submits that throughout the
respondent no.3, had been litigating to get the custody of the child
and as his application for the same in Custody Petition No.D-
51/2015 came to be rejected on 9/6/2017, the respondent no.3 has
with a malafide intent has filed the F.I.R., on 25/10/2017. She
submits that if the respondent no.3 was aware of the nature of the
allegations in February 2017, had that been any truth in the same,
he would not have kept quiet till 21/9/2017 on which date he had
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lodged the complaint to the Police Station Shanti Nagar, Nagpur. She
submits that the child has been brainwashed and is being used as a
means to harass the petitioner. She further submits that in spite of
allegations of the nature as indicated above, the mother has been
granted access to the child. There is no independent statement. The
entire action is abuse of the process of law and this is a fit case for
quashing the F.I.R. She places reliance upon State of Haryana and
others Vs. Bhajan Lal and others, 1992 Supp (1) SCC 335 and
specifically on illustration - 7 in para 102. She further places reliance
upon G. Sagar Suri and another Vs. State of U.P. and others, (2000)
2 SCC 636 and Niranjan Lakhumal Hiranandani Vs. Central Bureau
of Investigation and another, 2018 SCC OnLine Bom. 1116 to
contend that even if the remedy of discharge is available, it is
permissible for this Court to exercise the powers under Section 482
of Cr.P.C. and Article 226 of the Constitution of India to quash the
F.I.R. Reliance is also placed on Navin Dhaniram Baraiye Vs. State of
Maharashtra, 2018 Cri. L.J. 3393 to contend that the presumption
under Section 29 of POCSO Act is not absolute. Reliance is also
places on Ahmad Ali Quraishi and another Vs. State of Uttar
Pradesh and another, 2020 SCC OnLine SC 107 to contend that it is
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permissible to quash prosecution under POCSO Act. She therefore
submits that the present petition needs to be allowed.
5. Mr. R.B. Gaikwad, learned Counsel for the respondent
no.3 invites our attention to the statement of the child as recorded
by the Investigating Officer, the Child Welfare Committee as well as
the Magistrate and submits that the statement about abuse by the
child is not only consistent, but is specific about the petitioner. He
submits that the statements have been recorded in camera, i.e. of the
child alone, without the presence of the father and therefore there is
no reason to disbelieve the same. He submits that the contentions of
the petitioner regarding malice, ill-will, harassment, cannot be a
ground for discharge and only the statement of the child regarding
the sexual abuse has to be looked into. He submits that all the
contentions as are being canvassed by the learned Counsel for the
petitioner, could only be decided in a trial and cannot form the basis
for exercise of jurisdiction under Article 226 of the Constitution of
India or Section 482 of Cr.P.C. He therefore submits that there is no
merits in the petition and the same needs to be rejected.
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6. Mrs. Gauri Venkatraman, learned Counsel for the
petitioner, in rebuttal submits that the statements have been
improved from time to time and are therefore not worthy of
reliance. She submits that the child has been tutored since he is in
custody of the respondent no.3, which fact also needs to be looked
into and considered for the purpose of quashing the F.I.R.
7. Ms Tajwar Khan, learned Additional Public Prosecutor
for the respondent no.1/State supports the arguments of Mr. R.B.
Gaikwad, learned Counsel for the respondent no.3.
8. After having heard the learned Counsel for the parties
and perused the record with their assistance, we find that we cannot
grant the relief which is claimed in the petition. It is not in dispute
that the marriage of the respondent no.3 and Sonali the mother of
the child, stood dissolved with effect from 16/12/2013 by mutual
consent. It is also not in dispute that under the terms of consent
respondent no.3 is entitled to the custody of the child on the evening
from 5:00 p.m. of every second and fourth Friday till the morning of
the next Monday.
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9. A complaint was lodged by the respondent no.3 on
10/09/2017 with the Police Station Shanti Nagar, wherein it was
stated that on 10/09/2017 when he had brought the child to his
residence at about 11:30 a.m., he made a complaint that the
petitioner had assaulted him. Upon being asked the reason for the
same, the respondent no.3 was told that in the newspaper
'Navbharat' dated 08/09/2017 the name of the respondent no.3 was
mentioned which portion of the newspaper was cut off by the child
and kept in his pocket to show to the respondent no.3, which was
seen by the petitioner, pursuant to which the assault happened. The
respondent no.3 thereupon is said to have confronted Smt. Sonali,
the mother who stoutly denied any such incident. The respondent
no.3 in the complaint also indicated that the child was being
mentally and physically harassed at the residence of his mother.
10. On 21/09/2017, the respondent no.3 filed a complaint
with the President, Child Welfare Committee, wherein in para 5 a
specific allegation has been made about sexual harassment by the
present petitioner. The Child Welfare Committee ordered an enquiry,
by the Protection Officer, in pursuance to which the statement of the
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child Veer @ Virendra was recorded on 23/10/2017 by the
Protection Officer, Smt. Sadhna Hatwar in the presence of
Mr. Mustaq Pathan, District Child Welfare Officer, where the child
specifically stated the nature of the sexual abuse by naming the
petitioner, which was to the effect, as stated in para 3 (vii) above.
The Child Welfare Committee on the basis of the report as submitted
to it on 24/10/2017 found prima facie incidence of cruelty and
sexual abuse and directed action to be taken. F.I.R. came to be
lodged with the Police Station Shanti Nagar on 25/10/2017, bearing
F.I.R. No.3093 against the present petitioner as well as Smt. Sonali
the mother and Shri Rahul the maternal uncle under Sections 8
and 12 of the POCSO Act, Section 75 of the J.J. Act and Section 323
and 34 of I.P.C., which as stated above, was supplemented by adding
offences under Sections 16, 19 and 21 of the POCSO Act by way of a
supplementary charge-sheet, dated 25/09/2018. It would thus be
apparent that the allegations of sexual abuse by the child, were prior
in point of time to 21/10/2017, when the respondent no.3 received
the custody of the child. This would clearly indicate that the
contention of the learned Counsel for the petitioner that the child
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was tutored after the respondent no.3 received his custody on
21/10/2017, is without any merits.
11. In so far as the contention that the respondent no.3 was
aware of the abuse in the month of February, 2017 and still he did
not take any action therein till 21/09/2017, the same also, cannot
be given any weightage for the reason that throughout this period
the child was in the custody of the mother, who was residing at her
parental house, jointly with the petitioner and her brother Rahul,
and this clearly must have weighed with the respondent no.3, before
initiating any action. Thus, merely because there is some delay in
lodging of the complaint about sexual abuse, that cannot be a
ground to quash the same. In fact the child in his statement to the
Investigating Officer, states that he had informed about the sexual
abuse by the petitioner to his mother Smt. Sonali, who disregarded
the same, which is telling.
12. In a case of quashing of an F.I.R. and the subsequent
charge-sheet, what needs to be seen, is the nature of the contention
made and its prima facie veracity. In the instant matter, the child
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has been independently examined by the Child Welfare Committee
on 21/10/2017. The statement of the child under Section 164 of
Cr.P.C., has further been recorded by the J.M.F.C., Court No.2,
Nagpur on 8/11/2017. The statement of the child has also been
recorded by the Investigating Officer on 19/9/2018. All these
statements, appear to have been recorded in the absence of the
respondent no.3. All the statements are consistent in their stand
regarding the act of abuse at the hands of the petitioner. The
allegations as to sexual abuse by the petitioner, therefore being clear
and specific, we do not feel that this is a case which merits
interference under Section 482 of Cr.P.C. or under Article 226 of the
Constitution. This is clearly a matter which will have to undergo the
tribulations of a trial as prima facie specific allegations are there,
which in light of the presumption under the POCSO Act, can only be
tested on the anvil of the evidence which would be forthcoming in a
trial, the cross-examination and the rebutting of the presumption
and not otherwise.
13. The discharge of the mother Sonali and maternal uncle
by the High Court in Criminal Revision Application No.229/2018,
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was on the ground, that the Court found from the statement of the
victim child that nothing was stated against his mother/Sonali and
maternal uncle Rahul about sexual assault as defined under
Section 7 of the POCSO Act. The judgment dated 14/02/2019, in
fact, in para 8 thereof, notes that from the statement of victim child,
it was clear that some allegations are made against his maternal
aunt. It is thus clear that the discharge of the mother and the
maternal uncle is of no assistance to the case being advanced by the
learned Counsel for the petitioner.
14. There cannot be any two opinions about the proposition
as laid down in G. Sagar Suri and Niranjan Hiranandani (supra) that
in an appropriate case the remedy of discharge, cannot be held to be
a bar to exercise discretion under Article 226 of the Constitution of
India or Section 482 of Cr.P.C. That however does not assist the
petitioner in any manner, on account of the facts of the present case,
where clear and specific allegations about sexual abuse/assault have
been made by the child victim who was aged merely six years at the
relevant time. Though the presumption under Section 29 of the
POCSO Act is held to be rebuttable in Navin Dhaniram Baraiye
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(supra) the question of rebutting such a presumption could only
arise in the trial and not otherwise. In Ahmad Ali Quraishi (supra)
upon which reliance has been placed by the learned Counsel for the
petitioner, the quashing of the proceedings under the POCSO Act, by
the Hon'ble Apex Court was on account of the enquiry report by the
C.O. (City), which in clear terms stated that no sufficient grounds
were available to register a case under the POCSO Act. In so far as
the position laid down in Bhajan Lal (supra) is concerned, the facts
in hand, clearly disclose prima facie material demonstrating the
registration of the offences as indicated in the charge-sheet and
therefore, we do not consider the present case to fall under
illustration-7 as given in para 102 therein, rather as rightly
submitted by Mr. R.B. Gaikwad, learned Counsel for the respondent
no.3, illustration-1 in para 102 is attracted.
15. The provisions of Sections 29 and 30 of the POCSO Act,
mandate a presumption, regarding committing of an offence and of
the culpable mental state to commit it, which presumption in our
considered opinion, can only be rebutted by leading evidence to the
contrary, which can only be done during the course of the trial. The
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provisions of the POCSO Act having been brought in with the
avowed intention of preventing children from sexual abuse, as
defined in the Act, and any claim for discharge, has to be considered
in light of the nature of offences stated therein. It cannot be doubted
that offences of such a nature, may not be disclosed by the child, for
multiple reasons, some of them being the threat of assault, further
abuse, disbelief, insensitivity etc. However, when once such
allegation has been made, the same has to be tested on the anvil of
evidence to be led at the trial, unless the allegation is absurd to its
core. In our considered opinion, the nature of allegations of sexual
abuse/assault as have been made in the present matter against the
petitioner, which have been independently verified from the child by
three different agencies, have consistently remained the same, which
leaves no room for exercise of any discretion in favour of the
petitioner.
16. The allegations of malice, malafides, ill-will,
harassment, tutoring of the child, their falsity, they being made for
settling personal scores, the litigation background, violation of the
custody order, delay, absence of any independent witness, all pale
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into insignificance, in light of the clear and specific nature of the
allegations and the consistency throughout, by the child Veer, even
over a period of time, from 21/9/2017 to 19/9/2018, besides which
these contentions cannot form the basis of a discharge, except for
falsity, which has to be proved in trial and not merely malice but
malice in law, which is absent.
17. In the instant matter, apart from the provisions of the
POCSO Act, Section 75 of the J.J. Act have also been alleged, which
also definitely require a trial.
18. In light what we have stated above, there is no merits in
the present petition. The same is therefore without any merits and is
rejected. Rule stands discharged.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)
Wadkar
Digitally signed
by Shailendra
Shailendra Wadkar
Wadkar Date:
2021.02.09
16:57:42 +0530
