Delhi High Court
Lk (Prosecutrix) vs State Of Delhi Nct & Anr. on 25 October, 2018
$~14
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25th October, 2018
+ CRL. M.C. 4181/2016
LK (PROSECUTRIX) ..... Petitioner
Through: Mr. Siddharth Aggarwal, Mr.
A.S. Pujari, Mr. Zeeshan
Diwan, Ms. Rupali Samuel &
Ms. Surabhi Dhar, Advs.
versus
STATE OF DELHI NCT & ANR. ..... Respondents
Through: Mr. K.S. Ahuja, APP for the
State with SI RN Ashang
Somatai, PS Patel Nagar.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner is the complainant (prosecutrix) in the criminal
case arising out of first information report (FIR) no. 145/2015 which
was registered by police station Patel Nagar on 15.02.2015, whereby
investigation was taken up into offences allegedly committed under
Section 376 of Indian Penal Code, 1860 (IPC), Section 6 of Protection
of Children from Sexual Offences Act, 2012 (POSCO Act) and
Sections 23 and 26 of Juvenile Justice Act, 2000. In the said FIR she
had indicated her age to be 17 years and she accused the second
respondent of having subjected her to forcible sexual intercourse
constituting the offence under Section 376 IPC and Section 6 of
POCSO Act five-six months prior to the report to the police, such
conduct having continued thereafter, she having been rendered
pregnant with a child, her pregnancy at the time of medical
examination carried out on 19.03.2015 found to be more than 12
weeks' old. The investigation having been completed, report under
Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was
submitted on 19.05.2015 seeking trial of the second respondent for the
aforesaid offences, this in addition to offences punishable under
Sections 3 and 4 of the Child and Adolescent Labour (Prohibition and
Regulation) Act, 1986. The Special Court constituted under the
POCSO Act took cognizance and issued summons to the second
accused who had been earlier released on bail by default, by order
dated 19.05.2015, the charge-sheet having not been submitted within
the statutory period of 90 days in terms of Section 167 (2) Cr.P.C.
2. During the course of proceedings, after the presence of the
second respondent had been secured and before the question of charge
could be considered, the presiding officer of the Special Court decided
to hold an inquiry into the age of the prosecutrix and for such purposes
summoned three medical officers viz. Dr. Mukta Rani, Dr. Pooja
Abbey, Dr. Rakesh Sharma who had been involved in the medical
examination and examined them as CW-1, CW-2 and CW-3
respectively on 21.12.2015. Reference was made to the age
estimation report dated 24.03.2015 issued by board of doctors of the
Department of Forensic Medicine & Toxicology, Lady Hardinge
Medical College & Smt. S.K. Hospital, New Delhi, wherein it had
been opined that having regard to the physical, dental and radiological
finding, the age of the prosecutrix possibly was more than eighteen
and less than twenty years.
3. After having examined the above-mentioned three medical
officers CW-1, CW-2 and CW-3, the Special Judge, by his order dated
10.02.2016 held that the prosecutrix was "major on the dates of the
alleged occurrences". Having returned such a finding, the file of the
criminal case was made over to the District & Sessions Judge (West)
for it to be assigned "to the appropriate forum for trial".
4. Feeling aggrieved by the finding and directions to such effect,
by order dated 10.02.2016, the present petition has been filed by the
prosecutrix invoking the inherent power and jurisdiction of this Court
under Section 482 Cr.P.C., her prime grievance being that the Special
Court under the POCSO Act, has adopted a procedure unknown to
law, findings adverse to her interest having been returned without she
even being heard or examined. The respondent/State joins the
petitioner in seeking to assail the afore-mentioned order of the Special
Judge.
5. The second respondent was served with a notice for 12.01.2018.
He did not appear on the said date and a fresh notice was issued to be
served through the concerned SHO for 21.03.2018. He eventually
appeared on the said date with a counsel engaged by him. He was
given an opportunity to submit his reply within two weeks. No reply
has been filed by the second respondent till date. There is no
appearance on his behalf on the matter being called out.
6. Having heard the submissions of the petitioner and the learned
additional public prosecutor for the State and having gone through the
record, this Court finds merit in the challenge to the order dated
10.02.2016. The subject of determination of age is generally governed
by Section 7A of Juvenile Justice (Care and Protection) of Children
Act, 2000 which was in force during the relevant period. This
provision is to be read alongside Rule 12 of the Juvenile Justice (Care
and Protection) of Children) Rules, 2007 which, to the extent relevant,
reads thus:-
"12. Procedure to be followed in determination of Age.―
(1) In every case concerning a child or a juvenile in conflict
with law, the court or the Board or as the case may be the
Committee referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a juvenile in
conflict with law within a period of thirty days from the date
of making of the application for that purpose.
(2) The court or the Board or as the case may be the
Committee shall decide the juvenility or otherwise of the
juvenile or the child or as the case may be the juvenile in
conflict with law, prima facie on the basis of physical
appearance or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile in conflict
with law, the age determination inquiry shall be conducted
by the court or the Board or, as the case may be, the
Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if
available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a
play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of
clause (a) above, the medical opinion will be sought from a
duly constituted Medical Board, which will declare the age
of the juvenile or child. In case exact assessment of the age
cannot be done, the Court or the Board or, as the case may
be, the Committee, for the reasons to be recorded by them,
may, if considered necessary, give benefit to the child or
juvenile by considering his/her age on lower side within the
margin of one year.
and, while passing orders in such case shall, after taking
into consideration such evidence as may be available, or the
medical opinion, as the case may be, record a finding in
respect of his age and either of the evidence specified in any
of the clauses (a)(i), (ii), (iii) or in the absence whereof,
clause (b) shall be the conclusive proof of the age as
regards such child or the juvenile in conflict with law.
Xxx"
7. Though, as pointed out by the learned additional public
prosecutor, a statement has also been made (under Section 164
Cr.P.C) by the prosecutrix that she had been enrolled in school, she
having studied upto the level of 3rd standard, no school record could be
traced since she is not aware of the particulars of the educational
institution. The prosecutirx is a resident of West Bengal and appears
to be coming from a poor strata of society. As per her version, her
mother had died before she came to Delhi she having been engaged as
a child labour. There is no clarity whether or not her father is alive or
traceable. Be that as it may, in absence of any school record, the
investigating agency and the prosecution would rely, inter alia, on the
medical opinion as to her age. The prosecutrix has been consistent
since the beginning from the time of lodging of the FIR, that her age
as on 15.02.2015 (the date of registration of the FIR) was 17 years.
Noticeably, she alleged that she had been subjected to sexual
intercourse by the second respondent from five-six months prior to the
report to the police. She would also allege that she was subjected to
such sexual intercourse repeatedly thereafter on several occasions.
Since she was found pregnant with a child, the age of the foetus
having been assessed to be more than 12 weeks, it has to be assumed
that such physical relationship would have been subsisting at least
three months prior to the date of lodging of the FIR.
8. The crucial question in these facts and circumstances is as to
whether it can be said with certainty at this stage of the process if she
was major on the date she was subjected to sexual intercourse. The
prosecutrix, in her statement under Section 164 Cr.P.C. recorded on
16.02.2015 had reiterated her age to be 17 years. The radiological
opinion undoubtedly was that as on 19.03.2015 (the date of x-ray
examination) she was more than 18 years' old and less than 20 years.
But then, it has to be borne in mind that such material only constituted
"opinion", which, as per the caution administered by Rule 12 (3) (b) of
Juvenile Justice (Care and Protection of Children), Rules, 2007 has to
be construed with the benefit of margin of one year.
9. The investigating agency had concluded that the prosecutrix
was a child on the date on which the offences were committed. This is
why, it invoked, inter alia, the penal clause of Section 6 of POCSO
Act to seek prosecution of the second respondent. This report was
acted upon by the Special Judge by cognizance being taken and
process being issued to secure the presence of the second respondent
for he to be put on trial as accused. This implies that the Special Court
was satisfied, prima facie, that the prosecutrix was a child on the
relevant date.
10. The question as to whether the prosecutrix was a child or not
would be one of the questions that would fall for final determination
during the trial. The evidence on the basis of which clear conclusions
on this subject could be reached would include the testimony or
version of the prosecutrix i.e. the petitioner. In the inquiry held ahead
of the trial - the question of charge not having been considered - the
material gathered does not include the deposition of the prosecutrix.
The approach of the Special Judge has in fact, condemned the version
of the prosecutrix without she being heard.
11. On the foregoing facts and in the circumstances, the impugned
order cannot be upheld. It is set aside. The question as to whether the
prosecutrix (the petitioner) was a child or an adult on the relevant
date(s) is kept open for it to be determined and findings returned at the
appropriate stage of the process.
12. As a consequence of the impugned order dated 08.10.2015 (and
orders dated 10.02.2016 & 27.04.2016 emanating therefrom) being set
aside, the case will have to go back to the Special Court under the
POCSO Act. Ordered accordingly.
13. The criminal court where the case is presently pending shall
make it over to the concerned Sessions Judge who, in turn, shall pass
it over for further proceedings in accordance with law to the Special
Court having appropriate jurisdiction. Any proceedings taken out in
the wake of the impugned orders which have been set aside will be
treated as non-est.
14. Needless to add, further proceedings before the Special Court
under POCSO Act shall begin from the stage of consideration of the
charge.
15. Nothing in this order or in the impugned order which has been
set aside will be treated as final expression of opinion on the merits.
R.K.GAUBA, J.
OCTOBER 25, 2018
nk
