Calcutta High Court (Appellete Side)
Court On Its Own Motion vs Xxxx(Victim Girl) & Anr on 24 September, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
CRR 2431 of 2024
Court On Its Own Motion
Vs.
XXXX(Victim Girl) & Anr.
In
CRM (DB) 1564 of 2024
Rajbul Sk @ Rajibul Molla @ Raju Sk. and Ors.
Vs.
The State of West Bengal & Anr.
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Petitioners in CRM (DB) : Mr. Sabir Ahmed, Adv.
1564 of 2024 Mr. Somnath Adhikary, Adv.
For the de facto complainant : Mr. Soumyajit Das Mahapatra,
For the State. : Mr. Arindam Sen, Adv.
Mr. Shiladitya Banerjee, Adv.
For Orders On: 24.09.2024
2
Apurba Sinha Ray, J. :-
1.
The accused namely, Rajbul Sk @ Rajibul Molla @ Raju Sk.,
Makarul Sk. @ Makkaul Sk @ Makkaru Sk and Asadul Sk were
charged for committing rape upon the alleged minor daughter of the
defacto-complainant and were arrested in connection with Berhampore
Police Station Case No. 1114 of 2023 dated 09.08.2023 under Sections
341/376D of the Indian Penal Code, 1860 and also under Sections
4/6 of Protection of Child from Sexual Offences Act (POSCO Act,
2012). They were languishing in judicial custody for almost one year.
Astonishingly, during the hearing of the bail application under Section
439 of Cr.P.C. before this Court on 13.06.2024 the defacto-
complainant, the mother of the victim girl, submitted through her
learned counsel that she lodged complaint against the petitioners on
false allegations of rape upon her daughter and at the time of
recording statements under Section 164 Cr.P.C., her daughter falsely
implicated the petitioners under political pressure.
2. After taking into consideration the contention of the defacto-
complainant made through her learned counsel Mr. Soumyajit Das
Mahapatra, we found that the issue regarding false implication of the
petitioners under political pressure was very serious and this court,
while granting bail to the petitioners, issued suo motu Rule calling
upon the alleged minor daughter and the defacto-complainant to show
cause as to why necessary legal proceeding shall not be initiated
against them for having made false complaint and also having
recorded false statements on oath before the Learned Magistrate under
Section 164 Cr.P.C.
3. The defacto-complainant filed her response to the Rule wherein
she tendered unconditional apology for whatever was done by her and
her minor daughter. She has specifically stated that she was
compelled to make and pursue the false complaint due to tremendous
pressure of the local political leaders. She has further stated that her
husband is an ailing person who fell from an under construction
building while working as a mason and he is bedridden with a broken
spinal cord since 2017.
4. According to her, they have very limited sources of income and
they have to depend largely on different grants sponsored by the State
Government under various social schemes. Moreover, as her husband
is bedridden she and the victim girl are heavily dependent upon the
neighbours and local politically connected persons to maintain their
livelihood and the regular medical cost of her ailing husband.
5. It is also stated by the defacto-complainant that at the end of
July, 2023 some of the local political leaders approached her for
making up a false story which culminated in the present criminal case
against the present petitioners as they have switched their allegiance
from the ruling party to the opposition party and the said persons who
approached them also stated that if she agrees to their proposal the
defacto-complainant and her family members will be further included
in many other social schemes where from they would get more grants.
6. At first, she did not agree but subsequently under mounting
pressure and repeated persuasions she realized that she had no option
but to succumb to their diktat. Finding no other alternative she lodged
the present complaint on 08.08.2023 and her daughter recorded her
statement before the Learned Chief Judicial Magistrate, Berhampore,
Murshidabad on 17.08.2023. After the Parliamentary Election, 2024
was over the defacto-complainant realized that the said political
persons are not at all interested about the outcome of the case any
further as they have reaped their political benefit.
7. Accordingly, the defacto-complainant thought it prudent to
disclose the actual fact before this Court through her learned counsel.
She is ready to record her statement under Section 164 Cr.P.C. once
again stating whatever has been stated in her response to the Rule
issued by this Court.
8. Learned Counsel for the prosecution, on the other hand has
submitted that there are important judgments of the Hon'ble Supreme
Court and other High Courts wherein giving false evidence in judicial
proceedings has been strongly deprecated. In this regard he has cited
decisions reported in AIR 2000 SC 168 M.S. Ahlawat Vs. State of
Haryana and Anr., unreported decisions in the cases of Mutthu
Karuppan Vs. ParitiIIamvazhuti & Anr. And Mukesh Tiwari Vs.
State of UP (2016).
9. The above submission of the defacto-complainant reveals that
the protective umbrella created for the protection of child victims
under POCSO Act, 2012 is being misused by people like the defacto-
complainant and the victim. The seriousness of the issue will be
further unfolded if we peruse the bail application filed by the three
petitioners in connection with CRR No. 2431 of 2024 wherein the said
petitioners alleged that the victim is not a minor and she is a married
lady and she had contracted at least two marriages. She got divorced
by her said two husbands. In this regard, they have submitted two
talaknamas showing dissolution of marriages of the victim at the
instance of her two husbands on 06.09.2022 and 03.03.2023
respectively. Therefore, the above factual aspect prima facie shows that
Berhampore Police Station Case No. 1114 of 2023 dated 09.08.2023
was thus initiated on the basis of false allegations and further there is
a genuine doubt regarding the minority of the alleged victim.
10. It is true that minor victims have been protected by Section 22(2)
of the POCSO Act, 2012 even if they make false allegations. But, if a
victim misleads the authority regarding her age and persuades the
authority to take legal action against an innocent person by claiming
that she is a minor, we think that the benefit of the provisions as
envisaged under Section 22(2) of POCSO Act, 2012 is not available to
such victim who is not a minor at the time of lodging false complaint.
11. Admittedly, the defacto-complainant and her daughter lodged
the false complaint and according to them, they did so due to their
abject poverty. Can one's poverty be a good ground for making false
allegations against an innocent person? The learned counsel of the
defacto-complainant has relied upon one article namely "A Tea Selller
And A Judge" by Apoorva Mandhani published in Live law on
13.11.2018 (accessed on 15.07.2024) wherein a minor tea seller who
used to hawk in trains and railway stations was booked under the
relevant provisions of Indian Railway Act, 1989 and the concerned
Magistrate acquitted the said young person who was compelled to
violate the provisions of Indian Railway Act, 1989 due to his abject
poverty. But such a case cannot be equated with the present case
since no innocent person was booked under criminal laws on the basis
of activities of the young tea seller. He violated the provisions of law
due to his poverty. But, we must reiterate that poverty cannot be a
ground for lodging false complaints against innocent persons. The
contention of the defacto-complainant as such does not impress us.
We find that the defacto-complainant and her daughter, prima facie,
appear to have fabricated false evidence under Section 192 of the
Indian Penal Code, 1860 at the relevant point of time which is now
Section 228 of the Bharatiya Nyaya Sanhita, 2023.
12. Section 192 of IPC is quoted herein below:-
"Fabricating false evidence.--Whoever causes
any circumstance to exist or makes any false
entry in any book or record, or electronic record
or makes any document or electronic record
containing a false statement, intending that
such circumstance, false entry or false
statement may appear in evidence in a judicial
proceeding, or in a proceeding taken by law
before a public servant as such, or before an
arbitrator, and that such circumstance, false
entry or false statement, so appearing in
evidence, may cause any person who in such
proceeding is to form an opinion upon the
evidence, to entertain an erroneous opinion
touching any point material to the result of such
proceeding, is said "to fabricate false
evidence"."
13. However, we are alive to the fact that we were hearing the bail
application of the accused persons under Section 439 of Cr.P.C. For
the purpose of preventing sanctity of the legal procedure being marred
at the hands of unscrupulous persons, after conclusion of the trial, the
allegations against defacto-complainant for fabricating false evidence
with the help of her daughter are to be enquired into by the concerned
Learned Special Judge under POCSO Act, 2012 at Berhampore,
Murshidabad wherein the Berhampore Police Station Case No. 1114 of
2023 dated 09.08.2023 is pending since the said court is to deal with
terminal proceeding. In other words, the relevant case will be
concluded/terminated in the said court and not before this High
Court. As there is allegation that the victim and her mother concealed
the victim's actual age at the time of making false complaint, the
actual age of the victim at the time of lodging false complaint should
also be ascertained by the concerned Learned Special Judge who is
supposed to deal with the enquiry under Section 340 of Cr.P.C. (379
BNSS) and if it appears that the victim was major at the time of
lodging false complaint and recording of her statement under Section
164 of Cr.P.C., appropriate action should also be taken against the
victim without hesitation. In other words, in that event, the benefit of
Section 22(2) of POCSO Act, 2012 will not be available to the said
victim, being the daughter of the defacto-complainant.
14. Accordingly, we direct the Learned Judge, Special POSCO Court,
Berhampore, Murshidabad to make a discreet enquiry (at the time of
conclusion of the trial) in respect of the act of the defacto-complainant
and her daughter in making false complaint and also recording of false
statement under Section 164 of Cr.P.C. and thereby fabricating false
evidence within the meaning of Section 192 of the IPC. As a result of
such an act, three innocent persons being the petitioners herein, have
spent almost one year behind the bar, and this fact, therefore, should
also be taken into account by the Learned Judge. After enquiry, if the
Learned Judge, Special POCSO Court, Berhampore, Murshidabad,
finds that the defacto-complainant and/or her daughter (if major) are
responsible for fabrication of false evidence under Section 192 of
Indian Penal Code, 1860, he shall forthwith lodge a complaint before
the Competent Court of Magistrate against the defacto-complainant
and/or her daughter (if she was major at the time of recording her
statement) under Section 340 Cr.P.C. (Section 379 BNSS) for initiating
a criminal proceeding against them.
15. Let a copy of this order along with a copy of the order dated
13.06.2024 of this court, copy of the show cause dated 13.06.2024,
the bail application along with annexure in connection with CRR No.
2431 of 2024 be sent to the Learned Judge, Special POCSO Court,
Berhampore, Murshidabad for taking appropriate action. The learned
Registrar General is requested to communicate this order to the
Learned Judge, Special POCSO Court, Berhampore, Murshidabad
immediately. Rule issued is disposed of.
16. Urgent photostat certified copies of this order, if applied for, be
supplied to the parties on compliance of all necessary formalities.
I Agree.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
