Calcutta High Court (Appellete Side)
Smritikana Das vs The State Of West Bengal & Anr on 9 January, 2023
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
CRR 2384 of 2022
Smritikana Das
Vs.
The State of West Bengal & Anr.
For the Petitioner: Mr. Malay Bhattacharyya, Adv.,
Mr. Mihir Banerjee, Adv.,
Mr. Subhrajyoti Ghosh, Adv.,
Ms. S. Mondal, Adv.
For the private O.P/Respondent:
Mr. Jayanta Narayan Chatterjee, Adv.,
Mr. Debashis Banerjee, Adv.,
Ms. Moumita Pandit, Adv.,
Ms. Nandini Chatterjee, Adv.,
Mr. S. Naskar, Adv.,
Ms. Sreeparna Ghosh, Adv.,
Ms. Dipanwita Das, Adv.
For the State: Mr. Rudradipta Nandy, APP
Ms. Sonali Das, Adv.
CRR 3388 of 2022
Sumit Adhikari
Vs.
The State of West Bengal & Anr.
+
CRR 3741 of 2022
Chhaya Hazra and Ors.
Vs.
The State of West Bengal & Anr.
For the Petitioner: Mr. Sekhar Kumar Basu, Sr. Adv.
Mr. Rajdeep Mazumder, Adv.,
Mr. Sourav Chatterjee, Adv.,
Mr. Moyukh Mukherjee, Adv.,
Mr. Kaustav Lal Mukherjee, Adv.,
Mr. Shakti Halder, Adv.
For the Private O.P/Respondent:
Mr. Jayanta Narayan Chatterjee, Adv.,
Mr. Debashis Banerjee, Adv.,
Ms. Moumita Pandit, Adv.,
Ms. Nandini Chatterjee
Mr. S. Naskar, Adv.,
Ms. Sreeparna Ghosh, Adv.,
For the State: Mr. Rudradipta Nandy, APP
Ms. Sonali Das, Adv.
Heard on: 11 November & 18 November, 2022.
Judgment on: 09 January, 2023.
BIBEK CHAUDHURI, J. : -
1. The above referred revisional applications challenging an order
passed by the trial court rejecting petitioners' applications under Section
227 of the Code of Criminal Procedure praying for their discharge arise
out of one and identical case. Therefore, this Court proposes to dispose of
the aforesaid revisional applications by passing the following judgment for
the sake of convenience and brevity of discussion.
2. Factual aspect common to all the above mentioned revisional
applications is stated below:-
3. One Smt. Apurba Ray and her husband being issueless married
couple approached the competent authority expressing their desire to
adopt a child. After due verification and home study of the prospective
adoptive parents, a girl child aged about 9 years and 8 months was
handed over to the opposite party No.2 on 13th July, 2021 and in terms of
the provisions of the Hindu Adoption and Maintenance Act, 1956 the
proposed adoptive parents filed an application before the learned District
Judge, Howrah which was registered as Misc Case No.93 of 2021 for
taking adoption of the aforesaid girl child by the opposite party No.2 and
her husband. The learned District Judge, Howrah allowed the petitioners
(opposite party No.2 herein and her husband) to adopt the said girl child
vide order dated 30th July, 2021. The girl child was declared as the
adoptive child of the opposite party No.2 and her husband. Subsequently,
opposite party No.2 lodged a written complaint before the women police
station, Howrah police commissionerate on the basis of which FIR case
No.31 of 2021 dated 20th November, 2021 under Section 376AB/376(2)(d)
of the Indian Penal Code and Sections 4/6/17 of the POCSO Act and
Section 75 of the Juvenile Justice (Care and Protection of Children) Act,
2015 was registered against the petitioners of the above mentioned
revisions and others.
4. It is pertinent at this stage to state in brief the contents of the FIR
lodged by the defacto complainant/opposite Party No.2. It is stated by the
opposite party No.2 that she and her husband Joydeep Chowdhury were
in the process of adopting a girl child aged about 9 years and 8 months
from S.A.A, named, Karuna West Bengal Women and Children Welfare
Society at Howrah and they brought the said child to their home on 13th
July, 2021. Right from the very beginning the defacto complainant noticed
that the said child was suffering from physical discomfort associated with
a nervous wreck. She was medically treated by the defacto complainant
and her husband. The said child was treated by the adoptive parents with
parental affection and consolation. Subsequently, she disclosed that she
was sexually assaulted by a person at Karuna West Bengal Women and
Child Welfare Society for the last three years approximately. She was in
tremendous anxiety and mental agony which she tried to suppress from
the defacto complainant and her husband. The said girl child also
revealed that she was taken to an abandon house twice by the perpetrator
of the offence and subsequently dropped by a car after sexual assault to
Karuna West Bengal Women and Child Welfare Society. So, she was
suffering from car trauma. The said girl child could not state the name of
the perpetrator of offence, but informed the defacto complainant that the
said person was called as "Takla" by one Gitashree Adhikari. She also
identified the said person from the photograph affixed in a photo album
provided by Karuna West Bengal Women and Child Welfare Society.
Thereafter the girl child was medically examined by the gynecologist. The
gynecologist confirmed that she was sexually abused earlier and it
continued for a long period. It was also learnt from the said adoptive child
that she was subjected to extreme physical and verbal abuse at the hands
of Smt. Gitashree Adhikari, Secretary of the above named welfare society,
Smritikana Das, Social Worker (petitioner of CRR 2384/2022), Miss Papia
Social Worker, Deboshree Roy, Nurse, Tusi, Care giver, Chaya, Care giver,
Puspita, Care giver and Rama, Care giver and others. She was not offered
with proper food from her childhood by the above named persons and she
endured scarcity of food and unbearable pain of sexual assault by the
above named persons and others for long three years in the said welfare
society. The said girl child was forced to cook for social workers and
others and used to work as maid servant with other children of the said
welfare society.
5. On the basis of the said complaint police registered the above
referred case and took up the case for investigation.
6. It is on record that on completion of investigation police submitted
charge-sheet against the petitioners and others under Section 376-
AB/376(2)(d) of the IPC read with Sections 4/6/17 of the POCSO Act and
Section 75 of the Juvenile Justice (Care and Protection of the Children)
Act, 2015. The accused persons filed separate applications praying for
their discharge from the case. The said applications were rejected by the
learned Special Judge, POCSO Act at Howrah.
7. In case of the petitioner of CRR 2384 of 2022, the application under
Section 227 of the Cr.P.C was rejected by the learned trial judge vide
order dated 10th June, 2022.
8. The petitioners of CRR 3741 of 2022 are the care givers of the
aforesaid welfare society. Their application under Section 227 of the
Cr.P.C was rejected by the learned trial judge on 14th September, 2022.
9. Petitioner of CRR 3388 of 2022 is the husband of Gitashree
Adhikari. His prayers for discharge under Section 227 of the Cr.P.C was
rejected vide order dated 10th June, 2022.
10. Being aggrieved, the above named petitioners have preferred the
instant revision assailing legality, validity and propriety of the above
mentioned orders rejecting the petition separately filed by the petitioners
praying for their discharge from the above mentioned criminal case.
11. It is stated on behalf of the petitioner of CRR 3388 of 2022 that he
is no way connected with the alleged offence. The petitioner is the
husband of Gitashree Adhikari, Secretary of the Karuna West Bengal
Women and Child Welfare Society. The petitioner is not connected or
associated in any way to the day to day affairs and functions of the said
Welfare Society. The abovenamed Welfare Society was inducted as a
tenant by the petitioner in respect of ground floor, first floor, second floor
and fourth floor of the building situated at premises No.234, Sri
Ramdanga, Howrah. The third floor of the said house is under possession
of the petitioner for his own use and occupation. The petitioner was
arrested only because he is the husband of the said Gitashree Adhikari.
During investigation of the case petitioner's name never transpired as
perpetrator or abettor of any offence for which other accused persons
were charged. It is further pleaded by the petitioner that charge against
an accused can only be framed when there is grave suspicion against the
accused having committed an offence and not on the basis of mere
suspicion. Only because the petitioner is the owner of the building in
which the abovenamed Welfare Society was housed cannot be a ground to
implicate the petitioner alleging commission of offence under the POCSO
Act. It is alleged by the petitioner that the impugned order is bereft of any
reason and therefore, illegal, arbitrary, unreasonable and prejudicial to
the interest of justice and is liable to be set aside.
12. Petitioners of CRR 3741 of 2022 indisputably are the care givers
attached to Karuna West Bengal Women and Children Welfare Society. It
is submitted by them by filing the instant application that merely because
they are the employees of the said Welfare Society, they have been roped
in as accused persons in connection with Howrah P.S Case No.31/21 it is
further submitted by the petitioners that they were supplied with the
copies of the documents, statements of the witnesses recorded under
Section 161 and 164 of the Cr. P.C etc. in compliance of Section 207 of
the Cr.P.C. On perusal of the said documents and statements it is
ascertained that there was absolutely no allegation against the petitioners
to the effect that they were involved in committing any offence under the
Protection of Children form Sexual Offences Act, 2012 or under the Indian
Penal Code. There is also no allegation of abetment of any such offence
against them. Therefore, petitioners have also assailed the order passed
by the ld. Special Judge rejecting their application for discharge under
227 of the Constitution of India.
13. For the sake of convenience, it is recorded at the outset that the
application under Section 227 of the Cr.P.C filed by the Smritikana Das,
petitioner of CRR 2384 of 2022 was rejected by the ld. Special Judge
under POCSO Act, Howrah vide order dated 10th June, 2022.
14. Application under Section 227 of the Cr.P.C filed by the accused
Sumit Adhikari was also rejected vide order dated 10th June, 2022.
15. Similar application under Section 227 of the Cr.P.C filed by the
petitioners of CRR 3741 of 2022 was rejected by the learned Trial Judge
vide order dated 14th September, 2022.
16. Learned Advocate for Miss Smritikana Das who is the petitioner of
CRR No.2384 of 2022 at the outset draws my attention to annexure-P2 of
the revisional application which is an order of appointment of the
petitioner for the post of social worker. It is strenuously submitted by
Malay Bhattacharjee, learned Advocate for the petitioner that the
petitioner was appointed as social worker with effect from 12th September,
2020. In the appointment letter working hours of the petitioner was stated
from 10.30 am to 7 pm. Scope of her job was mainly outdoor work
involving home-study of the prospective adoptive parents, post adoption
follow up, maintaining office registers and record keeping.
17. Mr. Bhattacharjee next takes me to the statement of the victim girl
recorded under Section 161 of the Code of Criminal Procedure. The
learned Advocate specially refers to the reply given by the victim child to
question No.4 onwards. The victim girl stated before the learned
Magistrate that occasionally a wicked man used to come to the home from
the back side door. He used to go to the upstairs wearing a short pant. He
used to commit bad acts with her. Madam-Ma (Gitashree Adhikari) used
to call the said person as Takla. He used to commit obscene act with the
said child. He used to insert his penis inside his mouth. He also used to
insert his penis insider her vagina. The victim child used to cry and
scream with pain but nobody paid any heed to her cry. Takla used to
threaten her saying that if he would disclose anything against him he
would show obscene pictures of the child which he took in his mobile
phone to others and tell them that the victim girl insisted him to commit
such act. The victim girl stated further before the learned Magistrate that
she informed those incidents to Madam-Ma but she also threatened her
saying that if the victim girl would disclose the said incidents to others,
she would be punished and her obscene pictures would be circulated to
others. Madam-Ma used to call Takla to the home over phone. She
compelled the victim girl and others to see pornography, threatened and
assaulted them. Smritikana, the petitioner herein also used to assault the
victim girl physically. Smritikana also used to teach the victim girl and
other inmates of the home different ways as to how obscene acts were
required to be performed. She also directed the victim and others to
perform such obscene acts. The petitioner also compelled the victim girl
and others to see pornography.
18. It is strenuously argued by Mr. Bhatacharjee that the victim girl
was handed over the foster care of the opposite party NO.2 on 13th July,
2021. On the other hand, the present petitioner was appointed as social
worker in the above named home on 12th September, 2021. Thus, on the
date when the victim girl was handed over to the opposite party No.2
under her foster care, the present petitioner was not associated with the
said home.
19. Mr. Bhattacheryya next refers to statement of the complainant
recorded under Section 164 of the Cr.P.C and submits that the
complainant did not make any allegation against the present petitioner.
There is absolutely no material to frame charge against the petitioner for
the offence punishable under Section 6 read with Section 17 of the
POCSO Act and also under Sections 420/406/409/120B/34 of the IPC
and Sections 75/87 of the Juvenile Justice (Care and Protection of the
Children) Rule, 2015.
20. Mr. Sekhar Kumar Basu, learned Senior Counsel on behalf of the
petitioners of CRR No.3388 of 2022 and CRR 3741 of 2022 submits at the
outset that the trial court while considering discharge application under
Section 227 of the Cr.P.C is not to act as a mere post office. The Court has
to sift through the evidence in order to find out whether there are
sufficient grounds to try the suspect. The court has to consider the broad
probabilities, total effect of evidence and documents produced and the
basic infirmities appearing in the case and so on. In support of his
contention Mr. Basu refers to a decision of the Hon'ble Supreme Court in
the case of Sanjay Kumar Rai vs. State of Uttar Pradesh & Anr.
reported in 2021 SCC OnLine SC 367.
21. Mr. Basu next refers to another decision of the Hon'ble Supreme
Court in Union of India vs. Profulla Kumar Samal & Anr. reported in
1979 (3) SCC 4. In paragraph 10 of the said report the Hon'ble Supreme
Court has laid down the following principles to be followed by the trial
court while considering an application for discharge of an accused:-
(1) That the Judge while considering the question of framing
the charges under Section 227 of the Code has the
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been
properly explained the Court will be fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large however
if two views are equally possible and the Judge is satisfied
that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the
accused.
(4) That in exercising his jurisdiction under Section 227 of
the Code the Judge which under the present Code is a
senior and experienced court cannot act merely as a Post
Office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total effect
of the evidence and the documents produced before the
Court, any basic infirmities appearing in the case and so
on. This however does not mean that the Judge should
make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial.
22. Thus, it is submitted by Mr. Basu that Section 227 of the Code
casts a duty on the judge to apply his mind to the material on record and
if on examination of the record he does not find sufficient ground for
proceeding against the accused, he must discharge him.
23. With the above introduction, Mr. Basu submits that the learned
trial judge while rejecting the above named petitioner's prayer for
discharge, passed an order holding, inter alia, that charge against the
said accused shall be framed under Section 6 of the POCSO Act read with
Section 17 of the POCSO Act as well as Sections 420/406/409/120B/34
of the IPC and Sections 75/87 of the Juvenile Justice (Care and
Protection of Children) Rule, 2015.
24. It is urged by Mr. Basu that from the documents and statements of
the witnesses recorded under Section 161 and 164 of the Cr.P.C, it is
ascertained that the petitioner is the owner of Premises No.234, Sri Ram
Dhang Road, Howrah. He inducted the above named Welfare Society as
tenant in respect of ground floor, first floor, second floor and fourth floor
of the said building. The petitioner used to stay in the third floor of the
said building. He had no connection with the management and affairs of
the said welfare society. The learned trial judge while rejecting the petition
under Section 227 of the Code filed by the petitioner relied heavily on the
statement of one Pradip Karar who used to work as a peon in the said
welfare society. From his statement under Section 161 of the Code it is
ascertained that occasionally late night parties were arranged in the
residential floor of accused Gitashree Adhikari who is the wife of the
petitioner. The petitioner was also present in such parties. One Laltu, a
friend of Sumit Adhikari used to supply liquor in the said party. They
used to consume liquor sitting in the third floor of the said building,
Smritikana, Dipmala and Papia were also present in those parties.
Statement of Pradip Karar was also recorded under Section 164 of the
Cr.P.C during investigation. In his statement recorded under Section 164
of the Cr.P.C, he stated that his duty hours was from 10 am to 7 pm. On
certain occasions he used to stay in the office of the said welfare society
till 10 pm at night. He came to know from his office that on certain
occasions evening parties continued till midnight. He also heard that in
those parties the guests used to take liquor.
25. Learned Senior Counsel on behalf of the petitioner next takes me to
the statement of Radheshyam Santra recorded under Section 161 of the
Cr.P.C. In his statement he described himself as a close friend of Adhikari
family. He stated before the Investigating Officer that on the occasion of
any festival Gitashree Adhikari and her husband Sumit Adhikari used to
arrange late night parties. The guests invited in those parties consumed
liquor. The petitioner, his friend Laltu and one Subrata used to supply
bottles of liquor in those parties. Once huge numbers of bottles of wine
were recovered from the ground beside the house of Sumit. The witness
asked Sumit about the matter, but Sumit told him not to poke his nose
over any incident concerning the said welfare society. The learned Senior
counsel next takes me to the victim's statement and submits that the
victim did not state even a single word implicating the present petitioner
in committing any offence upon her or other inmates of the said welfare
society.
26. It is submitted by Mr. Basu that if a person arranges late night
party to treat his guests and friends and consumes liquor sitting in his
house without committing any offence or disturbing any person or
committing any nuisance, no criminal liability can be attributed to him. It
is also submitted by him with reference to the statement of the victim that
there is absolutely no allegation against the petitioner of abetment of
offence of aggravated penetrative sexual assault punishable under Section
17 of the POCSO Act. It is submitted by the learned Senior Counsel that
there is absolutely no material to frame charge against the petitioner
under Section 420/406/498 of the IPC.
27. On behalf of the petitioners of CRR 3741 of 2021, it is submitted
that they used to work as care givers of children/inmates of the said
welfare society. The victim girl stated in her statement recorded under
Section 161 of the Cr.P.C that the said petitioners used to assault her and
other inmates of the said society. They also used to make false allegations
against the inmates so that they might be severely assaulted by Madam-
Ma, Smritikana and Papia. Learned Advocate for the petitioner also refers
to the statement of the victim girl recorded under Section 164 of the
Cr.P.C. It is found from her statement that in the third floor of the said
building night party is organised almost daily, Madam-Ma being the
Secretary of the home, Smritikana and others used to dance playing hindi
songs wearing short dresses. During such party they used to switch off all
lights of the said building. Only dim lights were on in the third floor of the
said building. During such party the care givers (Aaya) used to sleep in
the ground floor. Many guests used to attend those parties. They used to
commit obscene act with the care givers. Other witnesses, namely, Pradip
Karar, Radheshyam Santra etc stated before the Investigating Officer that
the care givers knew everything if any wrong was committed upon the
victim girl and other inmates of the said society because their
responsibility was to look after the minor inmates of the said society.
28. Drawing my attention to the documents aforesaid, it is submitted
on behalf of the petitioners that there is absolutely no material against the
above named accused persons for frame charge under Section 6 read with
Section 17 of the POCSO Act. It is also submitted by the learned Counsel
on behalf of the above named petitioners that even if broad probabilities of
the case and the total effect of the evidence collected by the Investigating
Officer during investigation are taken into consideration, charge under
Section 75 of the Juvenile Justice (Care and Protection of Children) Model
Rules, 2016 may at best attract against the petitioners. The petitioners
may also be charged for committing offence of abetment of offence under
the Juvenile Justice (Care and Protection of Children) Act under Section
87 of the said Act. Therefore, the order passed by the learned trial judge
while disposing of the application under Section 227 of the Cr.P.C
requires intervention and consequent modification by this Court.
29. Mr. Jayanta Narayan Chatterjee, learned Advocate on behalf of the
opposite party No.2 at the outset submits that he cannot deny and
dispute the scope of Section 227 of the Cr.P.C and the duty of the trial
judge while disposing of an application under Section 227 of the Code
filed by an accused. The law is settled on the point that the trial judge
while considering the question of framing the charges under Section 227
is not intended to act merely as a recording machine and pass an order
directing framing of charge in respect of the offences under which the
Investigating Officer filed charge-sheet. It is the bounden duty to sift and
weigh, materials on record, but only for seeing whether there is sufficient
evidence for framing charge against the accused and not whether there is
sufficient evidence for conviction. If there is no prima facie evidence or the
evidence is totally unworthy of credit, it is the duty to discharge the
accused. If there is some evidence on the basis of which a grave suspicion
arises in the mind of the learned Judge, he is fully within his right to
frame charge against the accused.
30. Coming to the instant case, it is submitted by the learned Advocate
for the opposite party No.2 that the above named welfare society was
registered as a safe home for the children up to six years. Thus, the minor
children up to the age of six years who need care and protection are sent
to the said home for their safe stay and proper rearing and development.
The investigation of this case revealed that not only the victim girl but
also the children of even four years were subjected to gross sexual abuse.
The said fact came to the surface only after the victim girl was taken in
adoption by the defacto complainant. Sensing her physical and mental
discomfort, the adoptive mother got adoptive child treated by a
gynaecologist. It was learnt only then that she was subjected to gross
sexual abuse while staying under the care and custody of the said welfare
society.
31. Learned Advocate for the opposite party No.2 submits that the
defacto complainant did not state the names of the offenders in the
written complaint. What she came to learn from her daughter was
narrated in the written complaint. The defacto complainant stated that
one "Takla" sexually abused the victim girl while she was staying in the
said welfare society. In course of investigation the Investigating Officer
collected evidence and it was unearthed that very often there were late
night parties organized by the secretary of the said welfare society in her
residence situated at the third floor of Premises No.234, Sri Ram Dhang
Road, Howrah. It is found from the statement of the victim girl that in
those late night parties the principal offender, namely, Takla @ Deb
Kumar Bhattacharya remained present. The guests invited in the said
parties used to consume liquor. Gitashree Adhikari, Smritikana Das and
some other women associated with the said home used to dance wearing
short dresses to the tune of hindi songs. The victim girl was abused by
Takla @ Deb Kumar Bhattacharya inside the said safe home when he
attended late night parties. Accused Sumit Adkhikary is the husband of
Gitashree Adhikari. The evidence collected by the Investigating Officer
suggests that he remained present in those parties and used to drink. It is
submitted by the learned Advocate for the opposite party No.2 that if the
evidences collected by the Investigating Officer is considered in the
document of the broad probabilities of the case, the total effect of evidence
and the documents produced before the Court, it is to be held that
accused Sumit Adhikari had direct knowledge about all such incidents
that took place inside the four walls of the said welfare society. Section 19
of the POCSO Act makes it obligatory for any person who has
apprehension that an offence under the POCSO Act is likely to be
committed or has knowledge that such an offence has been committed, he
shall provide such information to the special juvenile police unit or the
local police. Section 21 of the said Act prescribes punishment for failure
to report or record such offence in spite of having knowledge of a
commission of such offence. It was obviously within the knowledge of
accused Sumit Adhikari that offence under the POCSO Act was being
repeatedly committed not only in the said welfare society but also in his
residence during late night parties but he did not inform the said
incidents to the police. Therefore, he is liable to be prosecuted under
Section 21 of the POCSO Act.
32. It is further submitted by the learned Advocate for the opposite
party that Section 16 of the POCSO Act defines "abetment of an offence".
The text of Section 16 of the said Act is similar to Section 107 of the IPC.
Explanation 1 and Section 16 runs thus:-
"16. Abetment of an offence-A person abets an offence, who-
First.-Instigates any person to do that offence; or
Secondly.- Engages with one or more other person or
persons in any conspiracy for the doing of that offence, if an
act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that offence; or
Thirdly.-Intentionally aids, by any act or illegal
omission, the doing of that offence.
Explanation I.-A person who, by wilful
misrepresentation, or by wilful concealment of a material fact,
which he is bound to disclose, voluntarily causes or procures,
or attempts to cause or procure a thing to be done, is said to
instigate the doing of that offence.
Explanation II.-Whoever, either prior to or at the time of
commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitates the
commission thereof, is said to aid the doing of that act.
Explanation III.-Whoever employ, harbours, receives or
transports a child, by means of threat or use of force or other
forms of coercion, abduction, fraud, deception, abuse of
power or of a position, vulnerability or the giving or receiving
of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of any
offence under this Act, is said to aid the doing of that act."
33. In the instant case accused Sumit Adhikari willfully concealed the
material fact of sexual abuse of minor children inside the said welfare
home under Section 19 of the Act he is bound to disclose commission of
offence inside Premises No.234, Sri Ram Dhung Road, Howrah. The
evidence collected by the Investigating Officer is sufficient that offence of
sexual abuse was also committed during the late night parties in the third
floor of the said premises. Thus, the accused is liable to be prosecuted
under the charge of Section 6 read with Section 17 of the POCSO Act.
34. Mr. Chatterjee also submits that the evidence collected by the
Investigating Officer clearly shows that Smritikana Das used to train the
minor inmates of the said welfare society. The manner in which sexual
coloured obscene acts were to be performed. The victim girl stated that
they had to perform such obscene acts in the late night parties.
Smritikana Das remained present in such late night parties. She used to
drink alcohol. She also treated the inmates of the said home with utmost
cruelty. Therefore, it is submitted by the learned Advocate for the opposite
party No.2 that the accused Smritikana Das is also liable to be prosecuted
under Section 6 read with Section 17 and Section 21 of the POCSO Act.
35. With regard to the involvement of the petitioners of CRR No.3741 of
2022, it is submitted by Mr. Chatterjee that petitioners were care givers in
the said welfare society. It was the duty of the said care givers to look
after the children of the said home properly. Mr. Chatterjee submits that
the care givers would obviously know if any girl child was sexually abuse.
The victim girl stated in her statement that she was subjected to
aggravated penetrative sexual assault by the said "Takla". As a result of
forceful sexual violence she suffered bleeding injury in her private part.
The care givers whose duty was to look after the inmates of the said
welfare society must have the knowledge that the victim girl was
subjected to aggravated penetrative sexual assault. They did not report
the matter to the police. They suppressed the incidents of sexual, physical
and mental torture perpetrated upon the victim girl inside the said welfare
society. Willful concealment and suppression of fact amounts to atetment
and the petitioners are also liable to be prosecuted under Section 6 read
with Section 17 of the POCSO Act.
36. Learned Public Prosecutor-in-Charge has referred to the specific
materials in case diary to urge that the petitioners are not entitled from
being discharged under Section 227 of the Cr.P.C.
37. At the outset I must be very candid to record that the learned
Counsels on behalf of the petitioners in all three revisions have raised
serious question as to the legality, validity and propriety of the impugned
order passed by the learned trial judge rejecting prayer of the petitioners
to discharge them under Section 227 of the Cr.P.C and consequently
holding, inter alia, that the petitioners are liable to be charged for
committing offence under Section 6 read with Section 17 of the POCSO
Act. The learned Advocates for the petitioners do not raise any question
with regard to the decision of the learned trial judge on the issue of
framing of charge under various penal provisions of Juvenile Justice (Care
and Protection of Children) Act and the IPC.
38. Therefore, this Court primarily restricts its discussion on the
question as to whether charge under Section 6 read with Section 17 could
be framed against the petitioners or not. It is strenuously argued by the
learned Advocate for the opposite party that accused Sumit Adhikari
instigated the principal offender namely, Takla @ Deb Kumar
Bhattacharya to commit the offence of aggravated penetrative sexual
assault, while other petitioners intentionally aided by their specific acts
the commission of the said offence. "Abetment" as defined by Section 107
of the IPC as well as Section 16 of the POCSO Act comprises (i) instigation
to do that thing which is an offence, (ii) engaging in any conspiracy for the
doing of that thing, and (iii) intentionally aids, by any act or illegal
omission, the doing of that thing. Section 108 of the IPC defines Abettor
as a person abets an offence, who abets either the commission of an
offence or the commission of an act which would be an offence. The word
"instigate" in the literary sense means to incite, spur or urged on, stir up,
goad, foment, provoke, etc. The dictionary meaning of the word "Aid" is to
give assistance, help etc. as to what would constitute instigation for
commission of offence would depend upon the facts of each case.
Therefore, in order to decide whether a person has abetted by instigation
the commission of an offence or not, the act of abetment has to be judged
in the conspectus of the entire evidence in the case. The act of abetment
attributed to an accused is not to be viewed or tested in isolation. Such
being the case, the instigating effect of the words used by the accused
must be judged on the basis of the peculiar facts and circumstances of
each case.
39. In order to constitute abetment, the abettor must be shown to have
"intentionally" aided the commission of the crime. Mere proof that the
crime charged could not have been committed without the interposition of
the alleged abettor, is not enough compliance with the requirements of
Section 107 of the IPC. In Shri Ram Vs. State of Uttar Pradesh reported
in (1975) 3 SCC 495 the Hon'ble Supreme Court had set out an example.
A person may, for example, invited another casually or for a friendly
purpose and that may facilitate the murder of the invitee. But unless the
invitation was extended with intent to facilitate the commission of the
murder, the person inviting cannot be said to have abetted the murder. It
is not enough that an act on the part of the alleged abettor happens to
facilitate the commission of crime. Intentional aiding and, therefore, active
complicity is the gist of the offence of abetment under Section 107 of the
IPC.
40. Under the backdrop of the above stated legal formalities and
ingredients of offence under Section 107 of the IPC, let us now consider
the case of the prosecution on the basis of the evidence and document
collected by the Investigating Officer during investigation to come to a
finding as to whether the accused persons/petitioners who face trial
under the charge of Section 6 read with Section 17 of the POCSO Act. It is
not in dispute that accused Sumit Adhikari is the owner of Premises
No.234, Sri Ram Dhang Road, Howrah. His wife Gitashree Adhikari is the
secretary of the said welfare society. Entire building except the third floor
was given on rent to the said welfare society. In the third floor Gitashree
Adhikari and her husband Sumit Adhikari, the petitioner herein used to
stay. The Investigating Officer has also collected the evidence to show that
on any festive occasion there was late night parties hosted by Gitashree
Adhikari was organized. In those late night parties the guests used to
consume liquor. Gitashree Adhikari, Smritikana Das and some other
employees of the said home used to dance playing hindi songs in the said
party wearing short dresses. In all such parties the principal accused,
named, "Takla"@ Deb Kumar Bhattacharya remained present. It is also
ascertained from the record that said Deb Kumar Bhattacharya was a
Social Welfare Officer under the government of West Bengal. There is
evidence collected by the I.O that in the said parties the victim girl and
other inmates of the said welfare society were asked to attend to perform
obscene or illicit act (nongra kaaj). The I.O also collected evidence that
accused Sumit Adhikari remained present in those late night parties and
consumed liquor. Therefore, it is ascertained from the evidence that late
night parties were organized by none else than the wife of accused Sumit
in their residence : Secondly the guests present in those parties
consumed liquor. The employees of the said welfare society also
consumed liquor. They used to perform dance with hindi songs: the minor
inmates of the home were asked to attend those parties to perform
obscene/illicit act and lastly the principal accused namely Takla @ Deb
Kumar Bhattacharya committed aggravated penetrative sexual assault
inside the welfare society premises. From all the above circumstances, it
is curled out that accused Sumit Adhikari had direct and specific
knowledge about commission of the offence of aggravated sexual assault.
While sift and weighing the evidence for the limited purpose of finding out
whether or not a prima facie case against Sumit Adhikari has been made
out or not and considering the broad probabilities of the case, at the stage
of consideration of charge the learned trial judge found that accused
Sumit Adhikari by wilful concealment of a material fact which he is bound
to disclose voluntarily caused the offence to be done and thus, he is said
to instigate the commission of offence. Therefore, the learned trial judge
rightly held that accused Sumit Adhikari may be charged under Section 6
read with Section 17 of the POCSO Act.
41. In Ram Kumar and Nain Singh vs. State of H.P reported in
(1995) Suppl. 4 SCC 67 the prosecutors was raped in police station by
the head constable. The other constable, who participated in forcibly
taking the girl and her husband to the police station, did not respond to
her shricks while she was being raped, was held to have been rightly
convicted under Section 376 read with Section 107 of the IPC.
42. In the instant case, the victim girl being an inmate of the said
welfare society was subjected to aggravated penetrative sexual assault
inside the home run by the wife of the accused and the victim girl was
also abused in course of late night parties where accused Sumit Adhikari
was actively present, intentional and wilful concealment of such material
fact prima facie amounts to instigation of doing of the offence and
therefore, the learned trial judge rightly held that accused Sumit Adhikari
should face trial under the charge of Section 6 read with Section 17 of the
POCSO Act.
43. It is needless to say that at the stage of framing of charge, the court
has to see if there is sufficient ground for presuming that the accused has
committed an offence. If the answer is in affirmative, the order of
discharge cannot be passed and the accused has to face trial. The
decision of the Hon'ble Supreme Court in Rajbir Singh vs. State of U.P
reported in AIR 2006 SC 1963 may be relied on in this regard.
44. It is held in State of Bihar vs. Ramesh Singh : AIR 1977 SC 2018
that reading Sections 227 and 228 of the Code of Criminal Procedure
together in juxta position, as they have got to be, it would be clear that at
the beginning and the initial stage of trial the truth, veracity and effect of
evidence which the prosecutor proposes to adduce are not to be
meticulously judged. Nor is any weight to be attached to the probable
defence of the accused. It is not obligatory for the judge at that stage of
the trial to consider in any detail and weigh in a sensitive balance whether
the effects, if proved would be incompatible with the innocence of the
accused or not. The standard of tests and judgment which is finally
applied before recording a finding regarding the guilt or otherwise of the
accused is not exactly to be applied at the stage of deciding the matter
under Section 227 or Section 228 of the Code. At that stage the court is
not to see whether there is sufficient court for conviction of the accused or
whether the trial is sure to end in his conviction.
45. There is another important point to note Section 29 of the POCSO
Act speaks about presumption as to the offence under Section 3, 5, 7 and
Section 9 of the said Act or abating or attempting to commit such offence.
Section 29 states :-
"Where a person is prosecuted for committing or abating or
attempting to commit any offence under Sections 3, 5, 7 and
Section 9 of this Act, the Special Court shall presume, that
such person has committed or abated or attempted to commit
the offence, as the case may be unless the contrary is
proved."
46. Section 30 speaks of presumption of culpable mental state of the
accused. It is pertinent to see that presumption under Section 29 and 30
of the POCSO Act is available as soon as a person is prosecuted. It is
needless to say that the petitioners are prosecuted on submission of
police report. Therefore, at the time of consideration of charge it is open
for the court to take into account the law relating to presumption in
respect of an offence under the POCSO Act as per the provision of Section
29 and 30 of the said Act. Thus, in order to frame charge against the
accused if from the totality of evidence a case is made out against the
accused trial court is entitled to frame charge. Degree of prima facie
evidence in order to ascertain broad probabilities of the case under the
POCSO Act is, in my considered opinion less than a case under the penal
code.
47. Bearing the above principles in my mind and having heard the
learned Counsel for the petitioners of all three cases, learned Advocate for
the Opposite Party No.2 as well as the learned P.P-in-charge, and on
careful perusal of the materials on record and the case diary, I like to
record at the outset that though the learned Counsel for Smritikana Das
vehemently urged that she was appointed as social worker in the
abovenamed welfare society with effect from the 12th September, 2020
and her duty hours was from 10.30 am to 7 pm, at this stage of
proceeding there is other scope to hold that the said appointment letter in
the name of Smiritikana Das was a subsequent manufactured document.
This Court has a prima facie reason to come to the above finding on
perusal of the statement of the decfacto complainant as well as the victim
girl. From the statement of the defacto complainant it is found that when
she and her husband decided to adopt a child she had initially took that
Gitashree Adhikari and Smritikana Das. Therefore the above named
petitioner was engaged with the affairs of the said society much before
12th September, 2020. It is also found from the said statement of the
defacto complainant that the abovenamed petitioner insisted the defacto
complainant time and again not to adopt the victim girl for some reason
best known to her. Subsequently the reason was known to the defacto
complainant prompting her to lodge a complaint against her and others.
48. From the statement of the victim girl it is prima facie ascertained
that the petitioner used to teach her and other inmates of the home how
to perform obscene act, she showed them obscene videos and told them to
perform such obscene act with others. Thus, there is sufficient evidence
against the Smritikana that she instigated the victim girl to commit
obscene act. Thereby she became the victim of sexual violence, evidence is
sufficient that she was engaged with Gitashree Adhikari and others in
direct conspiracy for engaging victim girl in aggressive penetrate assault.
Therefore, the abovenamed petitioner is liable to face trial under the
charge of Section 6 read with Section 17 of the POCSO Act. She is also
liable to be tried for the offence punishable under Section 75 of the
Juvenile Justice (Care and Protection of Children) Act, 2015.
49. It is found from the materials on record that accused Sumit
Adhikari who is the husband of Gitashree Adhikari, Secretary of the said
welfare society took active part in organising late night parties in his
residence the principal offender used to attend the said late night parties.
One Laltu and another person who being the close aides of Sumit used to
supply alcohol for the guest of those parties. The victim girl was abuse by
the principal offender in the premises of the said welfare society when he
attended such late night parties. At the stage consideration of charge the
trial court rightly held that accused Sumit Adhikari is liable to be tried
under the charge of Section 6 read with Section 17 of the POCSO Act.
From the materials on record it appears that the abovenamed accused
knew that the offence under the POCSO Act was committed in the said
welfare home. He failed to report the commission of such offence and
therefore he is also liable to be charged for the offence under Section 21 of
the POCSO Act.
50. In relation to Chhaya Hazra and others it is also recorded that they
were employed in the said welfare society as care givers. If an inmate of
the said home is subjected to gross sexual violence it is very natural that
such violence would be noticed by the care givers. They failed to report
the commission of such offence upon the victim girl and therefore they are
also liable to be tried under the charge of Section 21 of the POCSO Act.
The abovenamed petitioners are also to be charged for the offence
punishable under Section 75 of the Juvenile Justice (Care and Protection
of Children) Act, 2015.
51. In view of the above circumstances all three revisions are dismissed
on contest.
52. The learned Special Judge, Howrah (POCSO) is directed to frame
charge against the accused persons on the basis of the finding made by
this Court in this judgment.
(Bibek Chaudhuri, J.)
