Karnataka High Court
Govind Shivkumar vs State Of Karnataka on 6 February, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF FEBRUARY, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3749 OF 2022
BETWEEN:
GOVIND SHIVKUMAR
S/O SUBRAMANYAM SHIVKUMAR
AGED ABOUT 38 YEARS
CURRENTLY RESIDING AT: B21, NO.6
AGA ABBAS ALI ROAD
SHEFALI APARTMENTS
BENGALURU - 560 042.
PREVIOUSLY RESIDING AT:
G3, PRESTIGE MARAKKESH
ST.MARKS ROAD
BENGALURU - 560 001.
ALSO AT: OMIDYAR NETWORK INDIA
ADVISORS PVT.LTD.,
SKAV 909, 15TH FLOOR,
RICHMOND CIRCLE,
BENGALURU - 560 001.
... PETITIONER
(BY SRI NITIN RAMESH, ADVOCATE)
2
AND:
1. STATE OF KARNATAKA
BY CUBBON PARK PS,
REPRESENTED BY SPP,
HIGH COURT BUILDING
BENGALURU - 560 001.
2. RAJESH N.CARIAPPA
AGE: MAJOR
REPRESENTING PROSECUTRIX
S/O N.K.PEMMAIAH
RESIDING AT NO.7/1
ZEN HOUSE, LANGFORD GARDENS
BENGALURU - 560 025.
REPRESENTED BY HER LAWFUL
NATURAL GUARDIAN AND FATHER
... RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP., FOR R-1;
SRI S.MAHESH, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN SPL.
CC. NO. 138/2022 C/W SPL CC NO. 982/2019 ARISING OUT OF
PCR NO. 25/2019 IN CRIME NO. 101/2019 CURRENTLY PENDING
ON THE FILE OF L ADDL. CITY CIVIL AND SESSIONS JUDGE, FAST
TRACK COURT-1, EARLIER ON THE FILE OF HONBLE L ADDL. CITY
CIVIL AND SESSIONS JUDGE, BANGALORE, CCH-51, FOR
OFFENCES PUNISHABLE U/S 11 AND 12 OF THE POCSO ACT AND
SEC 509 OF IPC AT ANNEXURE G.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
3
ORDER
The petitioner is before this Court calling in question entire
proceedings in Special C.C.No.138 of 2022 connected with Special
C.C.No.982 of 2019 arising out of a crime registered in Crime
No.101 of 2019 on a reference being made in P.C.R.No.25 of 2019
by the learned Sessions Judge for offences punishable under
Sections 354, 354A, 370, 504 and 509 of IPC r/w Sections 7, 8, 9,
10, 11 & 12 of Protection of Children from Sexual Offences Act,
2012 r/w Juvenile Justice (Care and Protection of Children) Act,
2000.
2. Brief facts that lead the petitioner to this Court in the
subject petition, as borne out from the pleadings, are as follows:-
One (xxxxxx) D/o of the 2nd respondent is the complainant.
The 2nd respondent and Smt. Shruthi Cauvery Iyer got married on
26-04-2007. On 06-05-2008 a child is born from the wedlock. On
17-04-2017, on the ground that the relationship between the 2nd
respondent and the mother of the child turned sore, it ended up in
a divorce pursuant to a settlement agreement entered into between
the two in M.C.No.5160 of 2015. The agreement was to the effect
that the custody of the child was to remain with the mother and the
2nd respondent/husband had visitation rights. The further term of
the settlement was, in the event one of the parents was travelling,
the child would remain in the custody of non-travelling parent. This
was for the reason that the mother of the child had to visit United
States for studies.
3. After drawing up of the aforesaid terms of settlement, the
mother of the child leaves to United States on 30-12-2018 to
complete her further studies. At that point in time, the child stayed
with the 2nd respondent/father for over five months. The mother
returns to India and on 05-05-2019 called upon the 2nd respondent
to hand over the child to her custody in terms of the settlement
agreement. This appears to have been refused by the 2nd
respondent. Not stopping at that, the 2nd respondent on
27-05-2019 filed Guardian and Wards case in G & WC No.149 of
2019 before the Family Court seeking custody of the child. The
mother then files an execution petition in E.P.No.108 of 2019
seeking restoration of custody of her daughter in terms of the
settlement agreement. Therefore, two proceedings sprang from one
act of the 2nd respondent not returning the child to the mother.
4. On 04-06-2019 the 2nd respondent/father files a private
complaint against the petitioner and other accused in P.C.R.No.25
of 2019 before the L Additional City Civil and Sessions Judge,
Bengaluru alleging offences punishable under Sections 354, 354A,
370, 504 and 509 of IPC r/w Sections 7, 8, 9, 10, 11 & 12 of
POCSO Act, 2012 r/w Juvenile Justice (Care and Protection of
Children) Act, 2000. The learned Sessions Judge refers the matter
for investigation which becomes a crime in crime No.101 of 2019
before the Cubbon Park Police Station for the aforesaid offences.
Later, the 2nd respondent files a memo before the concerned Court
seeking to include the mother of the child as accused No.3 in the
FIR. The 1st respondent/Police filed a charge sheet against accused
No.2 and drops the name of the petitioner who was arrayed as
accused No.1 and the mother accused No.3 from the array of
accused in the charge sheet. The Special Court takes cognizance of
the offence against accused No.2 for offences punishable under
Sections 9(m), 11 and 12 of POCSO Act in Special Case No.982 of
2019.
5. The 2nd respondent/complainant files a protest petition on
06-09-2019 against dropping of the names of accused Nos. 1 and 3
and the protest petition comes to be allowed by the Special Court
and a direction was issued for further investigation against the
petitioner and the mother of the child, accused No.3. On further
investigation, the respondent/Police again submit a 'B' report
insofar as it concerns the petitioner and the mother of the child
which leads the 2nd respondent to file a protest petition yet again.
All along the child was with the father/2nd respondent as he had not
returned the child in terms of the settlement agreement and had
also registered G & W case seeking custody of the child. It
transpires that on 15-12-2020 the child leaves the company of the
father and returns to the custody of the mother. On the same day,
the mother of the 2nd respondent registers a complaint against the
mother in Crime No.313 of 2020 for offences punishable under
Section 363 of IPC alleging that the mother had kidnapped the
child. The learned Sessions Judge by his order dated 24-01-2022,
on considering the 'B' report so filed by the Police against accused
Nos.1 and 3 and the protest petition filed by the 2nd
respondent/husband, rejects the complaint insofar as the mother of
the child is concerned and directs registration of crime against the
petitioner herein who was accused No.1 for offences punishable
under Section 11 and 12 of the POCSO Act read with Section 509 of
IPC and this was directed to be tried along with Special C.C.No.138
of 2022. Aggrieved by registration of crime in Crime No.101 of
2019 and the proceedings in C.C.No.982 of 2019 for offences
punishable under Sections 11 and 12 of the POCSO Act r/w Section
509 of IPC, the petitioner is knocking at the doors of this Court in
the present petition.
6. Heard Sri Nitin Ramesh, learned counsel appearing for the
petitioner, Smt. K.P.Yashodha, learned High Court Government
Pleader appearing for respondent No.1 and Sri S.Mahesh, learned
counsel appearing for respondent No.2.
7. The learned counsel appearing for the petitioner would
contend with vehemence that the complainant who is the father of
the child is using the child to settle his scores on the petitioner who
is the third husband of the mother of the child. It is his case that G
& W case was filed on 27-05-2019 ten days before registration of
private complaint and there was no whisper of any offence being
alleged under the POSCO Act against the petitioner. The concerned
Court has erroneously taken cognizance of the offence against the
petitioner who has nothing to do with any of the ingredients of the
offence alleged therein. He would submit that the statement of the
child taken for the second time would clearly reveal the truth in the
matter and, therefore, would submit that the entire proceedings are
being used by the father of the child against the petitioner to settle
his personal scores.
8. On the other hand, the learned counsel representing the
2nd respondent would contend that what is alleged is offences
punishable under the POCSO Act. Section 29 raises a presumption
against the accused and, therefore, the presumption will have to be
undone only by conduct of trial. There is no warrant for this Court
to interfere at this juncture on the plea of the petitioner. Therefore,
he would submit that the petitioner has to come out clean in the
trial.
9. The learned High Court Government Pleader would also toe
the lines of the learned counsel representing the 2nd
respondent/complainant to contend that since the offences are the
ones under the POCSO Act, it is for the petitioner to come out clean
from those offences.
10. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
11. The afore-narrated facts are not in dispute. The marriage
between the 2nd respondent/father and Shruthi Cauvery Iyer,
mother of the child takes place on 26-04-2007. The child is born on
06-05-2008. The relationship between the 2nd respondent and
mother of the child turned sore and, therefore, on turning sore they
were before the Family Court in M.C.No.5160 of 2015 seeking a
decree of divorce. In the said proceedings an agreement is entered
into between the 2nd respondent and the mother of the child. The
settlement depicted that the custody of the child was to remain with
the mother and the father had visitation rights. This is the story of
the mother and father of the child. The petitioner was the husband
of Smt. Shruthi Cauvery Iyer. These are the protagonists in the
story of crime. The settlement agreement between the complainant
and the mother of the child was to the effect that if one parent
travels, the child was to remain in the custody of non-travelling
parent. The mother travels to United States between 30-12-2018
and May 2019 to complete her studies at Harvard University, United
States, at which point in time the child was in the custody of the
father in terms of the settlement agreement.
12. After the mother leaves to United States, it appears that
some harassment mails were communicated by the 2nd
respondent/complainant which led to two criminal complaints being
lodged by the present petitioner and the mother of the child before
the Police Department at Cambridge and the Criminal Court at
Massachusetts on 17-02-2019 and 20-03-2019 seeking to pass
restraint order against the 2nd respondent from harassing the
petitioner. The order was passed on 27-03-2019 restraining the 2nd
respondent from harassing the petitioner. Holding those orders in
hand, the mother of the child directs the 2nd
respondent/complainant to hand over the child to her custody as
she was then back into the shores of the nation. The complainant
then brings up a new story that the child was not comfortable to
live with the present husband of the mother of the child. This leads
the mother to file a writ petition invoking habeas corpus jurisdiction
of this Court in Writ Petition (HC) No.58 of 2019 which comes to be
withdrawn reserving liberty to avail of such remedy as is available
in law. It is then, the mother registers a complaint against the 2nd
respondent/complainant alleging offences punishable under
Sections 504 and 509 of the IPC in Crime No.81 of 2019. This is
pending consideration before the competent Court.
13. After all the aforesaid proceedings initiated by the mother
of the prosecutrix, the complainant registers G & W.C.No.149 of
2019 seeking custody of the child. Till that day, the 2nd respondent
in terms of the agreement had not returned the child to the mother.
The mother then files an execution petition in Execution No.108 of
2019 before the Family Court seeking restoration of custody of the
daughter to her in terms of the agreement so arrived at. This leads
the 2nd respondent taking recourse to extreme step of filing a
private complaint against the present petitioner and one B.K.
Chinnappa, maternal uncle of the child in P.C.R.No.25 of 2019
invoking Section 200 of the Cr.P.C. The learned magistrate, refers
the matter for investigation, which becomes a crime in Crime
No.101 of 2019 for offences punishable under Sections 354, 354A,
370, 504, 509 and Sections 7, 8, 9, 10, 11 and 12 of the POCSO
Act.
14. On 15-06-2019, in the aforesaid crime, Section 164
statement of the child was recorded. In the FIR since the name of
the mother was not added, the complainant files a memo before the
concerned Court seeking inclusion of the mother of the child to be
accused No.3. This was acceded to and investigation was carried on
by the police. The police then file a charge sheet against accused
No.2 and drops the petitioner and mother of the child. Accused
No.2 was the maternal uncle of the child. The concerned Court
takes cognizance of offences punishable under Section 9(m), 11
and 12 of the POCSO Act and registers C.C.No.982 of 2019. The
complainant/2nd respondent files a protest petition against dropping
of names of the petitioner and mother of the child. The concerned
Court directs further investigation against this petitioner and the
mother of the child. The further investigation leads to filing of 'B'
report and again a protest petition before the concerned Court by
the 2nd respondent/complainant. One more story would emerge.
On 10-09-2020 it is alleged that the petitioner and the mother of
the child took away the prosecutrix with the help of 20 - 25 goons.
This was brought to the notice of the Family Court by the 2nd
respondent/complainant and the Family Court had to pass an order
restraining the petitioner and mother of child not to disturb custody
of the child with the 2nd respondent/complainant. On 07-12-2020,
the Family Court directs the child to be kept present before the
Court. Between the dates 07-12-2020 and 19-12-2020, the next
date of hearing before the Family Court, another crime emerges.
The mother of the 2nd respondent i.e., the grand-mother of the
child registers a complaint in Crime No.313 of 2020 that the grand-
daughter/prosecutrix had been abducted by the petitioner and
mother of the child.
15. When things stood thus, proceedings before the
concerned Court were taken up further and on 04-02-2021 the child
gives her Section 164 Cr.P.C. statement in Crime No.313 of 2020
which was dealing with abduction of the prosecutrix. It is here the
child volunteers to render a statement that she was unhappy with
the 2nd respondent as he had forcibly made her to memorize false
statement against her mother, the petitioner and the maternal
uncle. The statement of the child tendered before the learned
Magistrate reads as follows:
"I wanted to live with my mother because I
missed her lot. I was unhappy at my father's house
because he used to leave house for one month time.
My father used to scream if I talk to my mother and he
would make me to memorize false statement of my
mother, step father and uncle. I was feeling lonely. I
messaged my mother through instagram and asked
her to come and pick me up. I was on the way near
Burn Fitness and I went in a car along with my
mother"
(Emphasis added)
The child was 12 years at the time when the statement was
recorded. It bears testimony of what the child has undergone with
the 2nd respondent. It is the statement of the child that she wanted
to live with her mother. She was unhappy with the complainant/2nd
respondent. It is also her statement that she was made to
memorize false statements against the mother, step father and the
uncle. In the meantime, the police who had conducted
investigation in Crime No.101 of 2019 which arose out of
P.C.R.No.25 of 2019 where the offences were under the POCSO Act
filed a 'B' report against accused No.1, the present petitioner and
accused No.3, the mother of child. On 18-11-2021 the child who
was with the custody of the mother, who had been voluntarily given
to the mother, is attempted to have been abducted by the 2nd
respondent which becomes a crime in Crime No.298 of 2021 for
offences punishable under Sections 511, 506, 34, 323 and 363 of
the IPC. Here again the child gives her statement under Section
164 of the Cr.P.C., that the complainant tried to grab her and
pushed her into the car and assaulted the present petitioner. It is
then the concerned Court dismisses the complaint against the
mother/accused No.3 and directed FIR to be registered against the
petitioner, for offences punishable under Sections 11 and 12 of the
POCSO Act r/w Section 509 of the IPC. The Court takes cognizance
of the offence on 17-03-2022 and registers Special C.C.No.138 of
2022. The proceedings move on.
16. The matter reached this Court in the subject petition
alleging that the child is being used to settle scores between the
mother of the child and the present petitioner, who is the third
husband of the mother of the child and that the complainant was
the 2nd husband. This Court passed slew of orders. On 21.04.2022
this Court had passed the following order:
"Heard the learned counsel Sri.Nitin Ramesh, appearing for
the petitioner at length and the learned High Court Government
Pleader in the matter.
Several issues galore in the case at hand and would require a
deeper consideration and due to paucity of time, the matter cannot
be heard and concluded. Therefore, on issuing notice to the
respondent No.2, I deem it appropriate to stall further proceedings
in Spl.C.C.No. 138/2022.
It is made clear that stalling of further proceedings in
Spl.C.C.No.138/2022 will not mean stalling of Spl.CC.No.982/2019
registered by the very same complainant. Accordingly,
I.A.No.1/2022 stands disposed.
List this matter on 30.05.2022."
Again on 29-06-2022 this Court passed the following order:
"This Court by an order dated 21.04.2022 has passed
the following order:
"Heard the learned counsel Sri.Nitin Ramesh,
appearing for the petitioner at length and the learned
High Court Government Pleader in the matter.
Several issues galore in the case at hand and
would require a deeper consideration and due to
paucity of time, the matter cannot be heard and
concluded. Therefore, on issuing notice to the
respondent No.2, I deem it appropriate to stall further
proceedings in Spl.C.C.No.138/2022.
It is made clear that stalling of further
proceedings in Spl.C.C.No.138/2022 will not mean
stalling of Spl.CC.No.982/2019 registered by the very
same complainant. Accordingly, I.A.No.1/2022 stands
disposed.
List this matter on 30.05.2022."
Pursuant to the order so passed, the trial in
Spl.C.C.No.982/2019 was in progress and on 10.06.2022,
the concerned Court has passed the following order:
"CW.1 present. However, the regular PO is on
leave. Hence, evidence of CW.1 is not recorded.
Mother of the victim girl present and submitted that
the Monday the school of the victim girl will be started.
Sri. BS Advocate filed power for Accused along
with NOC of previous Counsel.
The Learned counsel for Accused submitted that
the connected Spl.C.No.138/2022 was posted to
13.06.2022. Hence, prays to post this case along with
Spl.C.C.No.138/2022. Hence, call on 13.6.2022."
The matter was directed to be listed on 13.06.2022.
On 13.06.2022, the concerned Court again passed the
following order:
"Case called. Accused present. C.W.1 victim
present. Special PP again prays time to examine the
victim and she submitted that victim has directly
approached the court though summons has not been
issued. I have perused the order sheet, which shows
summons and B/W were continuously issued to victim
from 16.10.2021 but same were not served. Later
summons was duly served on the victim but she was
absent and for this reason bailable warrants were also
issued against the victim. As this case is of the year
2019 and victim is very much present before the
court, prayer of Special PP seeking time to examine
the victim is rejected as mother of the victim who is
present before the court submits that she cannot bring
the victim again and again to the court. Hence, Special
PP is directed to examine the victim today itself.
Case again called at 1.50 pm Sri. MKM
appearing for Sri S.M. again submits that his senior is
coming to convince the court by 2.45 pm. Victim is
waiting in the court hall from 11.00 am. Under POCSO
Act it is very clear that victim cannot be made to wait
in the court hall without any valid reason. Special PP is
not sure whether he is going to examine the victim
today or not. As the mother of the victim is expressing
her difficult to bring her daughter again and again to
the court, this court feels that evidence of victim has
to be discharge. In view of this observation C.W.1 is
hereby discharged.
After passing this order Special PP filed
application U/s 309 of Cr.PC seeking adjournment. I
have perused the contents of the application and this
court is of the opinion that the present application is
not maintainable. Hence, application is dismissed.
Further, minor victim present before the court submits
that whenever she used to come to the court she has
to apply leave and come and she feels difficulty to
appear repeatedly. For all these reasons evidence of
victim is hereby discharged.
Issue NBW to C.W.2 to 4 by 04.07.2022
Issue NBW to C.W.5 to 7 by 06.07.2022
Issue NBW to C.W.8 to 10 by 07.07.2022
Issue NBW to C.W.11 to 13 by 08.07.2022."
and closed the evidence of the victim on the score that the
victim cannot be brought time and again.
Learned counsel for the petitioner takes this
Court through two statements recorded under Section
164 of the Cr.P.C., of the child which are divergent to
each other. Therefore, for the resolution of the dispute
that is brought up before the concerned Court and the
offence so alleged, the evidence of the victim child is
of paramount importance.
The victim has not yet been examined or cross-
examined, is not in dispute. Since the entire case inter
alia hinges upon the statement of the victim, I deem it
appropriate to direct the presence of the victim on
07.07.2022, for recording of evidence, both
examination-in-chief and cross-examination, if any,
strictly in consonance with Section 33 of the POCSO
Act, by way of questions being put through the Special
Judge and the child answering through the Special
Judge. Recording of evidence of the victim shall be
concluded on the said date.
List the matter on 13.07.2022, after recording of the
evidence of the victim."
(Emphasis supplied)
By the aforesaid order, noticing the fact that the victim/child had
not yet been examined or cross-examined as also the fact that
there were two divergent statements recorded of the child for
resolution of the dispute, this Court directed evidence of the victim
child to be taken by the concerned Court on 07-07-2022, both
examination and cross-examination. On 07-07-2022 the
examination and cross-examination of the victim child happens. A
complete examination and cross-examination of the victim who was
by then 14 years is as follows:
"1 ೇ ತ ತಗ ೇಷ ಾ ಾಲಯ (POCSO OFFENCES) ೆಂಗಳ ರು
ೆಷ . . ನಂ. 982/2019
ಾ ಾರರ ೆಸರುಃ ೊಂದ ಾಲ$ ಪ&'ಾ(ೕಕ ಸ*ಾದ
ತಂ ೆ/ ಗಂಡನ ೆಸರು - , ಾಂಕ: 07.07.2022
ವಯಸು.ಃ 14 ವಷð CW-1
ಉ ೊ ೕಗಃ ಾ 01 PW-1
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ತಂ ೆ ನನIೆ ಒGಾEಯ 'ಾ]ರBಲC ಎಂದ<ೆ ಾ ಯು ಒGಾEಯ 'ಾ]ದFರು ಎನುAGಾE<ೆ.
15.06.2019 ರಂದು ಾನು ನನA GಾH ಮತುE ಆ7ೆಯ 3 ೇ ಗಂಡ Iೋ ಂದ=ವಕು'ಾJ
ರವರ KೊGೆ 2ಾ ಸು E ೆF ಎಂದ<ೆ ಾ ಯು ಇಲC ನನA ತಂ ೆ ನನA GಾH ಮತುE
Iೋ ಂದ=ವಕು'ಾJ ರವರನುA ೋಡಲು Yಡು ರ
E BಲC ಎನುAGಾE<ೆ. ಈಗ ಾನು ನನA GಾH
ಮತುE Iೋ ಂದ=ವಕು'ಾJ
ಂದ=ವಕು'ಾJ ರವರ KೊGೆ 2ಾ ಸು E ೆFೕ ೆ ಎಂದ<ೆ ಸ . 2018 ರ ನಂತರ LೕವM
Lಮp GಾH ಮತುE. Iೋ ಂದ=ವಕು'ಾJ ರವರ KೊGೆ 2ಾ ಸು ,
E ೕF ಎಂದ<ೆ ಾ ಯು
] ೆಂಬJ 2018 ರBC ನ£Àß GಾH ೊರIೆ Sಾ&2ೆBಂq ೋಗ ೇ7ಾrತುE ಾIಾr ಾನು ನನA
ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ರವರ KೊGೆ 2ಾ ಸು E ೆF Nೕ 2019 ರBC ನನA ತಂ ೆ ನನAನುA ಪMನಃ
ನನA GಾHಯ ಬbIೆ ಕಳZgಸ ೇ7ಾrತುE ಆದ<ೆ ಕಳZgಸBಲC ಎನುAGಾE<ೆ. LೕವM ಾ2ಾಗ Lಮp
GಾH ಮತುE Iೋ ಂದ=ವಕು'ಾJ ರವರ KೊGೆ 2ಾ ಸು E,Fೕ ಎಂದ<ೆ ಾ ಯು ಅವ ಬ_ರು
ಮದು2ೆ ಆrದುF 2017 ರBC ಾIಾr 2017 ಂದ ಾನು ಅವರ KೊGೆ 2ಾ ಸು E ೆFೕ ೆ
ಎನುAGಾE<ೆ.
2. Lh-1 'ಾ d ೆeೕf ರವರ ಮುಂ ೆ 7ೊಟT ೇb7ೆಯ lಾ <ಾ 3 ರBC LೕವM Govinda
Shivakumar is the third husband of my mother namely
Shruthi Cauvery lyer and I call him as Shiv. My biological
father name is Rajesh Cariappa Prior to Dec. 2018, I was
residing with my mother along with his third husband at
various houses at RETREAT, Casa Lavalle and Chartered
house. In each houses, my mother and her third husband
used to reside nearly 10-12 months. My mother and her
third husband were on dating from May 2015 to April 2017.
In the said period my moms third husband used to touch me
and I did not like it. My mom's third husband used to stay in
my private room whenever I used to change my cloths and
taking baths ಎಂದು ೇb,Fೕ ಎಂದ<ೆ ಾ ಯು ೌದು ಆದ<ೆ ಅದು LಜವಲC ಎನುAGಾE<ೆ.
3. ಾನು ಾ ಾಲಯ7ೆt ನನA GಾH ಮತುE ನನA ಮಲತಂ ೆ Iೋ ಂದ =ವಕು'ಾJ ರವರ
KೊGೆ ಬಂ, ೆFೕ ೆ ಎಂದ<ೆ ಸ ಯಲC ಾ ಯು ನನA GಾHಯ KೊGೆ ಬಂ, ೆFೕ ೆ ಎನುAGಾE<ೆ. ಈಗ
2-3 ಂಗಳ gಂ,Lಂದ ಾನು ಆ<ೋh ನನA ಮಲತಂ ೆ Iೋ ಂದ=ವಕು'ಾJ ರವರ ವ$ೕಲರ
ಕ5ೇ Iೆ ೋr ಅವರನುA uೇc 'ಾ] ೆFೕ ೆ ಎಂದ<ೆ ಸ ಯಲC. ಈ ,ನ ನನA 5ಾರ6ೆ
lಾ&ರಂಭ2ಾಗುವ ಮುಂ5ೆ ಸಹ ನನA GಾH ಮತುE ನನA ಮಲತಂ ೆ Iೋ ಂದ=ವಕು'ಾJ ಾಗೂ
XನA¥Àà ಾ ಾಲಯದBC ಸರ7ಾ ಅ9:ೕಜಕರು 7ೇಳZವ ಪ& ೆAIೆ gೕIೆ ಉತE ಸ ೇ7ೆಂದು
ೇb7ೊcTದFರು ಎಂದ<ೆ ಸ ಯಲC. ಅ ೇ ೕ Lh-1 'ಾ d ೆeೕf ರವರ ಮುಂ ೆ 7ೊಟT
ೇb7ೆಯನುA ನನA ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ಒGಾEಯ 'ಾ] ೇb ಾF<ೆಂದು ೇಳZವಂGೆ ಸಹ
ೇb7ೊcTದFರು ಎಂದ<ೆ ಸ ಯಲC.
4. 'ಾ d ೆeೕf ರವರ ಮುಂ ೆ 7ೊcTರುವ Lh- 1 ೇb7ೆಯ lಾ <ಾ 4 ರBC My mother
told me in the presence of Shiv that I was born on IVF
process, my mother got conceived out of sperm of my
biological father and Shiv. My mother and Shiv had hid
the gun behind curtains in the living room. One fine
day after my wake from the bed, I went upstairs and
saw that my mother and Shiv were in naked position, I
was scared and ran down. When myself, my mom and
Shiv shifted to Chartered house, I could notice bullets
in the kitchen. My mother used to leave me with Shiv and
she used to attend latenight parties and during that time,
Shiv step father used to take me to movies. When we were
in chartered house, my mother's younger brother by name
B.K. Chinnappa and I used to call him as Chinnu mama, one
day, when I was sleeping in living room, my uncle came and
slept on me and I was breathless and I tarted restricting
him, but he forced me by putting the force on my body,
when I intimated the same to my mom, she said it was a
joke. Inspite of it, whenever she used to visit abroad, she
used to leave me with Chinnu mama. Both Chinnu mama and
Shiv used to get chocolates and sweets to me. During the
datings of my mother and Shiv, when we used to go to Agra,
Cochin, Jaipur, Delhi, Goa etc., we all three used to stay in a
common room and during that time, after the bath, when I
came out he was in the same room ಎಂದು ೇb ೆFೕ ೆ ಎಂದ<ೆ ಸ . ಾ ಯು
Lh-1 'ಾ d ೆeೕf ರವರ ಮುಂ ೆ 7ೊಟT ೇb7ೆಯ 4 ೇ lಾ <ಾದBC ೇbರುವMದನುA ನನA
ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ಒGಾEಯ 'ಾ] ೇb ಾF<ೆ ಎನುAGಾE<ೆ.
5. ಈ ದೂರು 7ೊಟT ನಂತರ wBೕಸರು ನನA ಬb ಬಂದು ೇb7ೆ ಪxೆ,ದFರು ಇಲCy ನನIೆ
ೆನhಲC
ೆನhಲC. ಈ ಘಟ ೆಯ ಬIೆ{ ,B 12.06.2019 ಮತುE 5.08.19 ರಂದು wBೕಸರ ಮುಂ ೆ ಾನು
ೇb7ೆ 7ೊcT ೆFೕ ೆ ಎಂದ<ೆ ೆನhಲC. 12.06.2019ರದು wBೕಸರ ಮಂ ೆ ಾನು " ಾನು
] ೆಂಬJ 2018 ಂದ _______ಆ7ೆIೆ ೇb7ೊಂ]ರBಲC ಾಗೂ ಾನು wBೕಸರ ಮುಂ ೆ "
2016ರ |ೆಬ&ವ ಂಗಳBC ಾನು ನನA GಾH
GಾHಯ
ಯ KೊGೆ ______ಸg ಂ]ಗಳನುA
7ೊ]ಸು ದ
E ರ
F ು ಎಂದು ೇbರುವM,ಲC ಮುಂದುವ<ೆದು " Lೕನು ಮ ೆಯBC 2ಾಸ2ಾr ಾFಗ LನIೆ
ಾ ಂದ ಾವ ೕ ಯ *ೈಂrಕ $ರುಕುಳ ಆಗು ತ
E ುE? ಾನು 5ಾಟJ ೌ? ಅlಾf1 Nಂf
ನBC ಇರು2ಾಗ 'ಾವ XನAಪ ರವರು ಒಂದು ,ನ ಾನು B ಂq ರೂಂ ನBCರು2ಾIೆ{ ನನA Nೕ*ೆ
ಬಂದು ಮಲrದF ಂದ ನನIೆ ಉ ರುಗcTದಂF Gಾr Nೖ7ೈ ೋವM ಉಂSಾrರುGೆE " ಎಂದು ೇb7ೆ
7ೊcT ೆFೕ ೆ ಎಂದ<ೆ ಸ ಯಲC. " LನAನುA LನA GಾH ಮತುE =ವM ರವರು ______ನನA Nೕ*ೆ
*ೈಂrಕ $ರುಕುಳ ಎಸrದ ಸ~ಳ ಮತುE ಮ ೆಯನುA Gೋ ಸುGೆEೕ ೆ ಎಂದು ೇb7ೆ 7ೊcT ೆFೕ ೆ
ಎಂದ<ೆ ಸ ಯಲC ಸದ ೇb7ೆಯನುA Lh-2 ಎಂದು ಗುರು ಸ*ಾHತು.
6. 05.08.2019 ರಂದು wBೕಸರ ಮುಂ ೆ ೇb7ೆ 7ೊಡು2ಾಗ 2016 ರ lೆಬ&ವ ಂಗಳBC
______ನನA GಾHಯ 3 ೇ ಗಂಡ ಾದ =ವM ರವರ Nೕ*ೆ ದೂರನುA 7ೊ] ರುGಾE<ೆ ಎಂದು
ೇb7ೆ 7ೊcTಲC ಾ ಯ ೇb7ೆಯನುA Lh-3 ಎಂದು ಗುರು ಸ*ಾHತು. 'ಾ d ೆeೕf ರವರ
ಮುಂ ೆ ಮತುE wBೕಸರ ಮುಂ ೆ 7ೊcTರುವ ೇb7ೆಗಳZ ಸತ 2ಾrದFರೂ ಸಹ ನನA GಾH, ನನA
ಮಲತಂ ೆ. ಾ ಾಲಯದ ಮುಂ,ರುವ ಆ<ೋh XನAಪ ರವ Iೆ ಸ ಾಯ 'ಾಡಲು ಈ ೕ
ೇb7ೆಗಳನುA 7ೊcT®è ಎಂದು ಸುಳZ[ ೇಳZ E ೆFೕ ೆ ಎಂದ<ೆ ಸ ಯಲC.
7. ಾನು ಆ<ೋhಯ ರುದ• ಸGಾ ಂಶ ೇbದ<ೆ ನನA GಾH ಮತುE ನನA ಮಲತಂ ೆ
Iೋ ಂದ=ವಕು'ಾJ
ಂದ=ವಕು'ಾJ ನನAನುA ಮ ೆHಂದ ಆ5ೆ ಾಕುGಾE<ೆ ಎನುAವ • ಭಯ7ೆt ಾನು ಘಟ ೆ
ನxೆ,ದFರೂ ಏನು ನxೆ,ಲC2ೆಂದು ಸುಳZ[ ಾmn ೇಳZ E ೆFೕ ೆ ಎಂದ<ೆ ಸ ಯಲC.
8. ಈ 7ೇ ನ ಆ<ೋh XನAಪ ಮತುE ನನA ಮಲತಂ ೆ Iೋ ಂದ=ವಕು'ಾJ ರವರು ನನA Nೕ*ೆ
*ೈಂrಕ ೌಜ1ನ 2ೆಸrದ ಷಯವನುA ನನA GಾHIೆ ೇbದFರೂ ಸಹ ಆ7ೆ ಏನೂ ಕ&ಮ
GೆIೆದು7ೊಳ[BಲC ಎಂದ<ೆ ಾ ಯು ಸುಳZ[ XನAಪ ಮತುE ನನA ಮಲತಂ ೆ Iೋ ಂದ=ವಕು'ಾJ
ನನA Nೕ*ೆ ಾವM ೇ ೕ ಯ *ೈಂrಕ ೌಜ1ನ ನxೆ ಲC ಎನುAGಾE<ೆ. ನನA GಾH ಆ ೕ
ಾವM ೇ ಕ&ಮ GೆIೆದು7ೊಳ[, ಾFಗ ಾನು ನನA ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ರವರ ಬb ೋr
ನನA ಮಲತಂ ೆ Iೋ ಂದ =ವಕು'ಾJ ನನA Nೕ*ೆ ನxೆಸು EದF *ೈಂrಕ ೌಜ1ನ ದ ಬIೆ{ ೇb7ೆ
ಎಂದ<ೆ ಸ ಯಲC. ಅ ೇ ೕ ಆ<ೋh XನAಪ ನಮp ಮ ೆIೆ ಬಂ ಾಗ*ೆ*ಾC ನನA NೖNೕ*ೆ
ಮಲr ತY_7ೊಳZ[ EದFರು ಮತುE ಅದ ಂದ ನನA ೇಹ7ೆt ೋ2ಾಗು EತುE ಎಂದು ನನA ತಂ ೆIೆ
ೇb ೆF ಎಂದ<ೆ ಸ ಯಲC. ನನA GಾH ನನA ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ನ ರುದ• ನನA ಮುಂ ೆ
7ೆಟT ಾr 'ಾತ ಾ] ನನIೆ ನನA ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ನ Nೕ*ೆ ೆ ೕಷ ಬರುವಂGೆ
'ಾಡು EದFಳZ ಎಂದ<ೆ ಸ ಯಲC. ಾIಾr ನನA ತಂ ೆ <ಾKೇQ 7ಾ ಯ€ಪ
Iೋ ಂದ=ವಕು'ಾJ ಮತುE XನAಪ ರವರ ರುದ• ದೂರು ಸBC ದರು ಎಂದ<ೆ ಾ ಯು ೌದು
ಆದ<ೆ ಅದು ಸುಳZ[ ದೂರು ಎನುAGಾE<ೆ. ನನA GಾH, ಆ<ೋh XನAಪ ಮತುE ಮಲತಂ ೆ
Iೋ ಂದ=ವಕು'ಾJ ರವರನುA ಬ5ಾ• 'ಾಡಲು ಾ ಾಲಯದBC ಸುಳZ[ ಾmn ೇಳZ E ೆFೕ ೆ
ಎಂದ<ೆ ಸ ಯಲC.
lಾcೕಸ2ಾಲು
lಾcೕಸ2ಾಲು - ಆ<ೋh ಪರ ಎಂ ಎ? ವ$ೕಲ ಂದ
1. ನನIೆ ಕನAಡ ಓದಲು ಬ<ೆಯಲು ಬರುವM,ಲC. ಾನು ನನA ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ನ KೊGೆ
ಇ ಾFಗ ಆತ ಬಹಳಷುT ,ನ ನನAನುA ಒಬ_ಳ ೆAೕ YcTದFರು ಎಂದ<ೆ ಸ . ಅ ೇ ೕ ನನA ತಂ ೆ
<ಾKೇQ 7ಾ ಯಪ ನನA ಊಟ ಸಹ 7ೊಡು ರ
E BಲC ಎಂದ<ೆ ಸ . LೕವM Lಮp ತಂ ೆ <ಾKೇQ
7ಾ ಯಪ ನ ಮ ೆYಟುT ಏ7ೆ Lಮp GಾHಯ ಬb ಬಂ, ಎಂದ<ೆ ಾ ಯು ಆತ ಂಗಳZಗಟT*ೆ
ನನAನುA ಮ ೆಯBC ಒಬ_ಳ ೆAೕ YಟುT ೋಗು ದ
E ರ
F ು ನನIೆ ನAಲು ಊಟ ಸಹ ಇರು ರ
E BಲC
ಮ ೆಯ ೊರrLಂದ Yೕಗ ಾ$7ೊಂಡು ೋಗು ದ
E ರ
F ು ಾIಾr ನನA GಾHಯ ಬb ಬಂ ೆ
ಎನುAGಾE<ೆ. ನƒ
ನƒನನ ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ನನAನುA ಒGಾEಯ ಪ„ವ1ಕ2ಾr ನನA GಾH, ನನA
ಮಲತಂ ೆ Iೋ ಂದ=ವಕು'ಾJ ಾಗೂ ಆ<ೋh XನAಪ ರವರ ರುದ• ಸುಳZ[ ದೂರು
7ೊಡುವಂGೆ 'ಾ]ದರು ಎಂದ<ೆ ಸ . ನನA ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ಸBC ದF h ಆ
ಆJ
J
25/2019 ರBC ಏನು ಬ<ೆಯ*ಾr ೆ ನನIೆ Iೊ ಲ
E .C
ಮರು 5ಾರ6ೆ : ೇಷ ಸ7ಾ1 ಅ9:ೕಜಕ<ಾದ =&ೕ ಎ? ಎಂ ರವ ಂದ :
15.06.19 ರಂದು ಾನು 'ಾ d ೆeೕf ರವರ ಮುಂ ೆ ೇb7ೆ 7ೊಡು2ಾಗ ನನA KೊGೆ
ನAನ GಾH ಇದFರು ಎಂದ<ೆ ಸ ಯಲC ಾ ಯು ನನA ತಂ ೆ <ಾKೇQ 7ಾ ಯಪ ಇದFರು
ಎನುAGಾE<ೆ.
ಮರು 5ಾರ6ೆ -ಇಲC
(ನನA ಉಕE*ೇಖನದ Nೕ<ೆIೆ ಮು
ಮುಕE
ಕE ಾ ಾಲಯದBC (ಇƒ 7ಾ ಮ<ಾ w& ೕ]ಂq.)
ಮೂಲಕ ೆರಳಚುV 'ಾ]ಸ*ಾHತು).
ಓ. ೇ.7ೇ.ಸ.ಇ
¸À»/-
(ರೂಪ 7ೆ.ಎƒ).
ಾ ಾ`ೕಶರು
1 ೇ ತ ತಗ ೇಷ ಾ ಾಲಯ, ೆಂಗಳ ರು."
(Emphasis added)
The child spoke against the prosecution and therefore, was treated
hostile and cross-examined. In the cross-examination the child
clearly narrates the circumstances in which she was tutored to
tender statement against the present petitioner and her mother by
the former husband of mother of the child, the narration is in great
detail.
17. What would unmistakably emerge from what is quoted
hereinabove is that the child/prosecutrix is being used to
manipulate evidence by tutoring the child when she was in the
custody of the 2nd respondent. If these allegations by the 2nd
respondent are to be taken note of, a step back in time would
become necessary, as the complaint is filed by the 2nd respondent
alleging offences punishable under the provisions of the POCSO Act
on 04-06-2019 in P.C.R.No.25 of 2019. The contents of the P.C.R
No.25 of 2019 which forms the fulcrum of the allegations are as
follows:
".... .... ....
7. The Complainant submits that when the Accused No 2
visited the minor child around February 2017 at the
aforesaid shared household, the Accused No 2 slept
horizontally on top of the minor child, a physical contact
and advance, involving unwelcome and explicit sexual
overture. The Complainant also submits that the Accused
No. 2 is 6 feet tall and is heavily built, weighing in excess
of 100 kilos, and when he Accused No. 2 thrust his huge
body into the frail and fragile body of the minor child who
was 9 years then, and during the said incident the minor
child incurred bodily injury and severe body pain following
the assault. The Complainant submits that despite the
minor child bringing it to the attention to her mother -
(xxxxxxxx), it was brushed aside as a mere joke. The
Complainant minor child submits that she felt very
embarrassed and insulted that when the minor child's
modesty was outraged in such a blatant manner, and
when her own mother refused to deal with the situation
and take appropriate steps against Accused No. 2, the
perpetrator of such a daring attempt to sexually assault
the minor child at home. The minor child submits that
besides injuring her and causing severe pain, the said
incident has immensely affected her self esteem and
confidence.
8. The Complainant submits that both Accused No. 1 and 2
had lured, induced and coerced the minor child through
gifts, chocolates, clothes and food. During unseemly
occasions when Child's mother Shruthi Cauvery lyer has
been regularly going out alone for late night parties and
returning only after midnight, the Complainant minor
child submits that she was taken out for late night movie
shows, alone by the Accused No. 1.
9. The Complainant also submits that the minor child
was unable to report the aforesaid abuse, as the
Accused No. 1 is the third husband of the minor
child's mother and Accused No. 2 is brother of the
minor child's mother living in the said shared
household. The Complainant child submits that she
therefore came to a conclusion that no one will
believe her. The Complainant also submits that the
minor child was afraid that the Accused may harm
her, and she was also afraid that she will lose the
love and affection of her mother if she reports
about the mother's third husband and brother; and
as such, the minor child, the Complainant here,
could not muster courage to disclose the abuse and
harassment. The Complainant submits that the
minor child is extremely distressed by such abuse
and harassment by the Accused.
10. The minor Complainant also submits that the Accused No
1 and her mother Shruthi Cauvery lyer who are in
possession of an unlicensed rifle / gun along with
ammunition, will use their gun to forcibly take the minor
child away from the jurisdiction of this Court, and may
not continue to participate in court and police proceedings
instituted against them.
11. The Complainant submits that the POCSO Act recognizes
that the intent to commit an offence, even when
unsuccessful for whatever reason, needs to be penalized.
The attempt to commit an offence under the POCSO Act
has also been made liable for punishment. It has also
been held that looking lecherously at a child is also
punishable under the POCSO Act. The POCSO Act includes
the words 'constantly watching a child with sexual intent'
in the definition for 'sexual harassment of a child',
therefore, watching a child with sexual intent is covered
by the POCSO Act. The POCSO Act also provides for
punishment for abetment of the offence, which is the
same as for the commission of the offence. The POCSO
Act makes it mandatory to report commission of an
offence and also the recording of complaint and failure to
do so would make a person liable for punishment of
imprisonment and with fine. It is also a Punishable action
if Police / Special Juvenile Police Unit fail to report a
commission of the offence under the POCSO act. The
burden of proof under the POCSO Act is on the accused in
view the greater vulnerability and innocence of children."
(Emphasis added)
The P.C.R. is preferred by the child through the 2nd respondent/
complainant. What forms the allegation is quoted hereinabove. A
week before registration of the said complaint, the very
complainant had preferred a case in G & W.C. 149 of 2019 seeking
custody of the child. The said petition is appended to the present
petition. The reason for seeking custody of the child inter alia is as
follows:
".... .... ....
53. The Petitioner further submits that his minor child would
greatly benefits from having contact with his family members
also. The Respondent is estranged from her own parents and
has no family ties with them. The parents of the Respondent
have a good opinion about the Petitioner, and they continue
to maintain cordial relationship with the Petitioner. The child
is completely cut off from her parental and maternal
relations and this is not in the interest of her emotional and
psychological welfare and wellbeing as the Petitioner was
always close to the child, and it was the Petitioner who was/
is taking care of the minor child in all respects. The Petitioner
has been meeting all the financial needs of the minor child
for her education and all other personal needs. The
Respondent on the other hand is incapable of looking after
the child by herself or bringing her up without causing her
trauma.
.... .... ....
61. The cause of action for this petition arose 1) on
6.5.2008, when the child of the Petitioner and
Respondent by name Leia Cariappa was born; 2) On
17.01.2017, when the Respondent deceived this
Hon'ble Courts and the Petitioner by entering into the
settlement agreement in bad faith;p 3) on 28.04.2017,
when the Respondent changed her name and married
for the third time, One Govind Shivkumar within 9
days of the Divorce Decree signed by this Hon'ble
Court on 17.04.2017; 4) On 30.12.2018, when the
Respondent left to the United States to deliver an
American anchor baby on 17.03.2019; 5) On
05.04.2019, when the minor child was resident with
the Petitioner in Benagaluru and when the Respondent
fraudulently and illegally obtained an order for custody
of our child Leia Cariappa from the Trial Court of
Massachusetts, USA; 6) on 06.05.2019 when
the Respondent's third husband Govind Shivkumar
along with the Respondent's brother BK Chinnappa
came to the Petitioner's residence and created
nuisance and intimidated the minor child Leia Cariappa
and his elderly mother; 7) On 07.05.2019 when a
complaint was filed by the minor child Leia Cariappa
against the Respondent's third husband Govind
Shivkumar with the Ashoknagar Police Station -
Bengaluru for threatening, intimidated the minor child
and creating nuisance at the residence of the
Petitioner, 8) On 10.05.2019 when the Hon'ble High
Court of Karnataka at Bengaluru did not restore the
custody of our minor child (xxxxxxx) to the
Respondent; 9) On 11.05.2019, when a complaint was
filed by the minor child (xxxxxxx) and the Petitioner
against the respondent with the Cubbgon Police
Station - Bengaluru for the illegal possession of an
unlicensed gun and catridges; 10) On 19.05.2019
when the Respondent filed a false complaint with the
Cubbon Park Police Station that the minor child Leia
Cariappa is missing.
... ... ... "
(Emphasis added)
The entire story from the date of birth of the child till filing of the
petition is narrated. Nowhere there is even a whisper about the
petitioner sexually harassing the child. On the same day, the
mother of the child files execution petition seeking restoration of
custody of the daughter to her position in Execution No.108 of
2019. Therefore, two proceedings sprang on the same day - one
the afore-quoted G & W.C and the other execution petition seeking
restoration of child's custody.
18. Immediately, thereafter, the 2nd respondent twines a
heuristic story of the child being sexually abused by the present
petitioner and her maternal uncle. Both the aforesaid contradictory
contentions - one being placid and the other being gory if taken
note of and juxtaposed with the statement tendered by the
prosecutrix - not ones but twice - one prior to the order passed by
this Court (supra), a statement that was tendered on 04-02-2021
and the examination and cross-examination conducted on 07-07-
2022 pursuant to the order of this Court (supra) would completely
demolish the allegation against the petitioner. This Court is not
pronouncing any allegation against the maternal uncle as charge
sheet is filed and trial is on and concern of the Court is the present
petitioner who is the third husband of the mother of the
prosecutrix. This cannot but be inferred that an innocent child is
being used by the 2nd respondent, ex-husband of the mother of the
child to settle scores against the mother and the present petitioner,
the 3rd husband of the mother of the child.
19. Though this Court would be loathe to interfere in
proceedings which involve maze of facts, in a petition, under
Section 482 of the Cr.P.C., what merits acceptance is, the
contention of the petitioner that right from registration of private
complaint in P.C.R.No.25 of 2019 mala fides galore, personal
vendetta shrouds the registration of crime and wrecking
vengeance pervades the entire issue in the impugned
proceedings. Victim is the child. The child is projected as a
victim of sexual activity of the step father, the 3rd husband of the
mother of the child. This is clearly negated or demolished by the
statement of the child herself that she was tutored throughout. If
what is aforesaid is challenged before the learned Magistrate,
further proceedings if permitted to continue against the present
petitioner, it would be permitting a classic illustration of abuse of
the process of law by the 2nd respondent/complainant to continue.
Innocence of the child is tampered, her emotions are being used
and abused by a warring parent.
20. It is for this reason that when the parents begin to
wrangle, who is at pain is the child. The facts, in the case at
hand, become a classic picture of parents using the child, to settle
their scores to the extent of alleging the step father indulging in
activities, falling under Sections 7, 8 and 9 of the POCSO Act. It is,
therefore, the Apex Court in the judgment of MAHMOOD ALI v.
STATE OF U.P.1 has directed that the High Court examining case
under Section 482 Cr.P.C. is required to read between the lines, go
beyond the complaint and make efforts to gather the real intent hid
in the complaint, as the complaint is generally cleverly worded. The
observations of the Apex Court in the aforesaid judgment read as
follows:
"ANALYSIS
9. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, the
only question that falls for our consideration is whether the
FIR bearing No. 127 of 2022 should be quashed?
10. We are of the view that even if the entire case of
the prosecution is believed or accepted to be true, none of
the ingredients to constitute the offence as alleged are
disclosed. It is pertinent to note that the FIR in question
came to be lodged after a period of 14 years from the
alleged illegal acts of the appellants. It is also pertinent to
note that in the FIR no specific date or time of the alleged
offences has been disclosed.
11. The entire case put up by the first informant on
the face of it appears to be concocted and fabricated. At this
stage, we may refer to the parameters laid down by this
Court for quashing of an FIR in the case of State of
Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992
SC 604. The parameters are:--
2023 SCC OnLine SC 950
"(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision
in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge."
12. We are of the view that the case of the present
appellants falls within the parameters Nos. 1, 5 and 7 resply
of Bhajan Lal (supra).
13. At this stage, we would like to observe
something important. Whenever an accused comes
before the Court invoking either the inherent powers
under Section 482 of the Code of Criminal
Procedure (CrPC) or extraordinary jurisdiction under
Article 226 of the Constitution to get the FIR or the
criminal proceedings quashed essentially on the
ground that such proceedings are manifestly frivolous
or vexatious or instituted with the ulterior motive for
wreaking vengeance, then in such circumstances the
Court owes a duty to look into the FIR with care and a
little more closely. We say so because once the
complainant decides to proceed against the accused
with an ulterior motive for wreaking personal
vengeance, etc., then he would ensure that the
FIR/complaint is very well drafted with all the
necessary pleadings. The complainant would ensure
that the averments made in the FIR/complaint are
such that they disclose the necessary ingredients to
constitute the alleged offence. Therefore, it will not be
just enough for the Court to look into the averments
made in the FIR/complaint alone for the purpose of
ascertaining whether the necessary ingredients to
constitute the alleged offence are disclosed or not. In
frivolous or vexatious proceedings, the Court owes a
duty to look into many other attending circumstances
emerging from the record of the case over and above
the averments and, if need be, with due care and
circumspection try to read in between the lines. The
Court while exercising its jurisdiction under
Section 482 of the CrPC or Article 226 of
the Constitution need not restrict itself only to the
stage of a case but is empowered to take into account
the overall circumstances leading to the
initiation/registration of the case as well as the
materials collected in the course of investigation. Take
for instance the case on hand. Multiple FIRs have been
registered over a period of time. It is in the
background of such circumstances the registration of
multiple FIRs assumes importance, thereby attracting
the issue of wreaking vengeance out of private or
personal grudge as alleged.
14. In State of Andhra Pradesh v. Golconda Linga
Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court
elaborated on the types of materials the High Court can
assess to quash an FIR. The Court drew a fine distinction
between consideration of materials that were tendered as
evidence and appreciation of such evidence. Only such
material that manifestly fails to prove the accusation in the
FIR can be considered for quashing an FIR. The Court held:--
"5. ...Authority of the court exists for
advancement of justice and if any attempt is made to
abuse that authority so as to produce injustice, the
court has power to prevent such abuse. It would be an
abuse of the process of the court to allow any action
which would result in injustice and prevent promotion
of justice. In exercise of the powers court would be
justified to quash any proceeding if it finds that
initiation or continuance of it amounts to abuse of the
process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no
offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is
sought to be quashed, it is permissible to look
into the materials to assess what the
complainant has alleged and whether any
offence is made out even if the allegations are
accepted in toto.
6. In R.P. Kapur v. State of Punjab, AIR 1960
SC 866 : 1960 Cri LJ 1239, this Court summarised
some categories of cases where inherent power can
and should be exercised to quash the proceedings :
(AIR p. 869, para 6)
(i) where it manifestly appears that there is a legal
bar against the institution or continuance e.g.
want of sanction;
(ii) where the allegations in the first information
report or complaint taken at its face value and
accepted in their entirety do not constitute the
offence alleged;
(iii) where the allegations constitute an
offence, but there is no legal evidence
adduced or the evidence adduced clearly or
manifestly fails to prove the charge.
7. In dealing with the last category, it is
important to bear in mind the distinction
between a case where there is no legal evidence
or where there is evidence which is clearly
inconsistent with the accusations made, and a
case where there is legal evidence which, on
appreciation, may or may not support the
accusations. When exercising jurisdiction under
Section 482 of the Code, the High Court would
not ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or
whether on a reasonable appreciation of it
accusation would not be sustained. That is the
function of the trial Judge. Judicial process, no
doubt should not be an instrument of oppression, or,
needless harassment. Court should be circumspect
and judicious in exercising discretion and should take
all relevant facts and circumstances into consideration
before issuing process, lest it would be an instrument
in the hands of a private complainant to unleash
vendetta to harass any person needlessly. At the same
time the section is not an instrument handed over to
an accused to short-circuit a prosecution and bring
about its sudden death....."
(Emphasis supplied in the original)
15. In the result, this appeal succeeds and is hereby
allowed. The impugned order passed by the High Court of
Judicature at Allahabad is hereby set aside. The criminal
proceedings arising from FIR No. 127 of 2022 dated
04.06.2022 registered at Police Station Mirzapur,
Saharanpur, State of U.P. are hereby quashed."
(Emphasis supplied)
The facts obtaining in the case at hand would fit into what the Apex
Court has held in the aforesaid judgment, as the complaint is so
cleverly worded and projected that it is a clear case of sexual abuse
of the child, while the intent of the complainant is to use the child
to settle his personal scores.
21. It becomes apposite to refer to identical circumstance
posed before the High Courts of Kerala and Madras. The judgment
of the Kerala High Court reported in DR.JASEER ABOOBACKER v.
STATE OF KERALA2 was a case concerning grant of anticipatory
bail. The allegation against the accused therein was that he had
sexually abused a boy of 9 years studying in 5th standard. The
Court while granting bail, records as follows;
".... .... ...
7. It is true that this Court while considering the bail
application of an accused who has violated the provisions of
the POCSO, 2012 will not be justified in conducting a mini
trial. I am also not unmindful of the statutory presumption
2018 SCC OnLine Ker.3111
available to the prosecution under §29 of the Act. At the
same time, this Court will not be justified in shutting its eyes
to the factual allegations and the contention of the applicant
that he has been wrongfully accused of having committed a
very grave crime on his own child.
8. In Subhash Kasinath Mahajan (Dr.) v. State of
Maharashtra [(2018) 6 SCC 454] the Hon'ble Supreme Court
had occasion to consider the issue of reverse burden vis-a-
vis the human rights of an accused. Relying on the decision
of the Apex Court in Noor Aga v. State of Punjab [(2008) 16
SCC 417], it was observed as follows in paragraph No. 65 of
the report.
"65. Presumption of innocence is a human right.
No doubt, placing of burden of proof on accused in
certain circumstances may be permissible but there
cannot be presumption of guilt so as to deprive a
person of his liberty without an opportunity before an
independent forum or Court. In Noor Aga v. State of
Punjab, [(2008) 16 SCC 417], it was observed:
"33. Presumption of innocence is a human right
as envisaged under Art. 14(2) of the International
Covenant on Civil and Political Rights, it, however,
cannot perse be equated with the fundamental right
and liberty adumbrated in Art. 21 of the Constitution
of India, It, having regard to the extent thereof, would
not militate against other statutory provisions (which,
of course, must be read in the light of the
constitutional guarantees as adumbrated in Art. 20
and Art. 21 of the Constitution of India),
xxxx xxxx xxxx
35. A right to be presumed innocent, subject to
the establishment of certain foundational facts and
burden of proof, to a certain extent, can be placed on
an accused, It must be construed having regard to the
other international conventions and having regard to
the fact that it has been held to be constitutional.
Thus, a Statute may be constitutional but a
prosecution thereunder may not be held to be one,
indisputably, civil liberties and rights of citizens must
be upheld.
xxxx xxxx xxxx
43. The issue of reverse burden vis - a - vis the
human rights regime must also be noticed. The
approach of the common law is that it is the duty of
the prosecution to prove a person guilty. Indisputably,
this common law principle was subject to
parliamentary legislation to the contrary. The concern
now shown worldwide is that Parliaments had
frequently been making inroads on the basic
presumption of innocence. Unfortunately, unlike other
countries no systematic study has been made in India
as to how many offences are triable in the Court
where the legal burden is on the accused. In the
United Kingdom it is stated that about 40% of the
offences triable in the Crown Court appear to violate
the presumption. (See "The Presumption of Innocence
in English Criminal Law", 1996, CRIM. L. REV. 306, at
p. 309.)
44. In Art. 11(1) of the Universal Declaration of
Human Rights (1948) it is stated:
"Everyone charged with a penal offence
has the right to be presumed innocent until
proved guilty according to law...."
Similar provisions have been made in Art.
6.2 of the European Convention for the
Protection of Human Rights and Fundamental
Freedoms (1950) and Art. 14.2 of the
International Covenant on Civil and Political
Rights (1966).
xxxx xxxx xxxx
47. We may notice that Sachs, J.
in State v. Coetzee, 1997 (2) LRC 593 explained the
significance of the presumption of innocence in the
following terms:
"There is a paradox at the heart of all
criminal procedure in that the more serious the
crime and the greater the public interest in
securing convictions of the guilty, the more
important do constitutional protections of the
accused become. The starting point of any
balancing enquiry where constitutional rights
are concerned must be that the public interest
in ensuring that innocent people are not
convicted and subjected to ignominy and heavy
sentences massively outweighs the public
interest in ensuring that a particular criminal is
brought to book. ... Hence the presumption of
innocence, which serves not only to protect a
particular individual on trial, but to maintain
public confidence in the enduring integrity and
security of the legal system. Reference to the
prevalence and severity of a certain crime
therefore does not add anything new or special
to the balancing exercise. The perniciousness of
the offence is one of the givens, against which
the presumption of innocence is pitted from the
beginning, not a new element to be put into the
scales as part of a justificatory balancing
exercise, if this were not so, the ubiquity and
ugliness argument could be used in relation to
murder, rape, car - jacking, housebreaking,
drug-smuggling, corruption ... the list is
unfortunately almost endless, and nothing
would be left of the presumption of innocence,
save, perhaps, for its relic status as a doughty
defender of rights in the most trivial of cases."
In view of the above, an accused is certainly
entitled to show to the Court, if he apprehends arrest,
that case of the complainant was motivated. If it can
be so shown there is no reason that the Court is not
able to protect liberty of such a person. There cannot
be any mandate under the law for arrest of an
innocent. The law has to be interpreted accordingly.
(emphasis supplied)
As held in Dr. Subhash Kasinath Mahajan
(supra), an accused is certainly entitled to show to the
Court, if he apprehends arrest, that case of the
complainant was falsely motivated. If there are
materials which prima facie show that the complaint is
motivated for extraneous reasons, there is no reason
why the court should not protect the person, who has
been wrongfully accused from being arrested and
detained.
9. It is evident from the prosecution records that
the parents of the child are well educated and well-
placed in life. Their only son is of tender age. It
appears that the child has been made a weapon of
choice by one of the parent to put up a fight against
the other parent. There cannot be any doubt that their
unusual fight and the levelling of very grave
allegations of sexual abuse against the father would
have a huge emotional toll on the psyche of the minor
child. It is appalling to note that the parents, in their
determination to fight with each other, have
intentionally or otherwise failed to protect their child
from the damaging emotional consequences that
would be caused to him.
10. After having considered the entire materials,
I am of the considered view that the contention of the
applicant that such serious allegations have been
levelled for securing a favourable order in the petition
for custody pending before the Family Court cannot be
nonchalantly brushed aside. The prosecution has no
case that the applicant is involved in other similar
offenses or that he is likely to make himself scarce.
The child is in the custody of the mother. In view of
the above, the custodial interrogation of the applicant
does not appear to be necessary for an effective
investigation. It is made clear that the observations
made above are made for the purpose of deciding this
bail application. The investigation may be proceeded
with subject to the directions given in this order. The
observations shall have no bearing before the court
below, if and when the case comes up for trial."
(Emphasis supplied)
The High Court of Madras in N.CHANDRAMOHAN v. STATE3 has
held as follows:
"This is one of those unfortunate cases where
the wife has resorted to giving a complaint against her
husband alleging that he has committed sexual assault
against their daughter, who is aged about 11 years.
2. The 2nd respondent has given a complaint to the
respondent police stating that she married the petitioner in
the year 2003 and out of the said wedlock, two girl children
were born and they are aged about 11 years and 1½ years
respectively. The complaint proceeds as if there is an illicit
relationship between the petitioner, who is the father and the
daughter, who is aged about 11 years and the
2nd respondent is said to have warned the petitioner
regarding the same. The 2nd respondent proceeds to allege
that she was able to see some bodily changes of her elder
daughter and goes to the extent of saying that the elder
daughter also became pregnant and the same was
terminated by giving native medicine. Therefore, the
2nd respondent has removed both the daughters from the
custody of the petitioner and handed them over to the
Government Home.
... ... ...
6. This Court categorically found that the defacto
complainant lodged a false complaint with an ulterior motive
to threaten the petitioner and thereby granted anticipatory
bail to the petitioner.
7. The present petition has been filed seeking to
quash the FIR on the ground that the FIR itself is an abuse of
process of law and is being used as an instrument to
threaten the petitioner and to wreck vengeance against the
petitioner.
8. This Court summoned the 164 statement recorded
by the learned Additional Family Court Judge, Egmore, from
2019 SCC OnLine Mad 3666
the victim girl. While questioning, the victim girl has clearly
narrated the entire incident and it can be seen that the
defacto complainant was attempting to take the daughters
into her custody and for that purpose she has cooked up a
false story against the petitioner. The victim girl has gone to
the extent of saying that she and her younger sister wanted
to go with their father, when enquired by the learned Judge.
9. The victim girl has taken a very consistent
stand both at the time of giving statement under
Section 164 of Cr.P.C. and at the time when she was
personally enquired by this Court, at the time of
considering the anticipatory bail petition filed by the
petitioner. It is clear that the allegations made by the
2nd respondent is completely false and she has given
the complaint with an ulterior motive against the
petitioner. Unfortunately she has gone to the extent of
casting aspersion against the petitioner as if he has
illicit relationship with his own daughter aged about
11 years.
10. This case has shocked the conscience of this
Court and it is unbelievable that the mother just for
the sake of taking custody of her child, can go to the
extent of making such serious allegations against her
husband by alleging that he is having physical contact
with his own daughter.
11. There were instances when the attention of
this Court was drawn to similar such incidents, where
false complaint were given as if the husband has
committed an offence under POCSO Act against the
daughter and it was informed to this Court that such
cheap tactics are adopted in the family court cases,
just to arm twist the husband and make him fall in
line. This Court was not willing to believe that such
instances can happen and this case is an eye opener
for this Court. This Court was made aware, the extent
to which POCSO Act can be misused.
12. The object of the POCSO Act was to protect
children from offence of sexual assault, sexual harassment,
etc., and that is why the Act specifically provides for a legal
presumption as to the commission of the offence and the
culpable mental state, once a prosecution is launched under
this Act. The burden of proof is upon the accused to prove
that he had no such mental state with respect to the Act
charged as an offence in that prosecution. The consequences
of prosecuting a person under this Act are very serious and
apart from providing for stringent punishments, the person
who is prosecuted virtually comes down in the eyes of the
society at large and he is virtually shunned from the main
stream of the society.
13. Fortunately in this case, the concerned child
was able to express herself very clearly both before
this Court as well as the Court below and therefore on
the face of it, this Court was able to find that the Act
has been misused by the 2nd respondent. If that had
not happened, the petitioner would have been forced
to go through the rigour of a trial and the situation
would have turned even more murkier.
14. In the considered view of this Court, the
prosecution against the petitioner should not continue
even for a minute more and it has to be immediately
interfered and the FIR has to be quashed, in order to
bring to an end a malicious prosecution which is of
monstrous proportions. The 2nd respondent even
without caring for the future of her own daughter, has
proceeded to give a complaint alleging illicit
relationship between her husband and daughter, just
to make the petitioner fall in line and to get the
daughters into her custody. This is the worst type of
false prosecution a Court can ever encounter.
15. In the considered view of this Court, the
2nd respondent should not be let off and she should be
made to suffer the consequences for having given a
false complaint against her husband at the cost of her
own daughter. The respondent police is directed to
immediately proceed against the 2nd respondent under
Section 22 of the POCSO Act for having given a false
complaint and take action against her in accordance
with law. This case should be a lesson for all those
who attempt to misuse the provisions of this Act, just
to satisfy their own selfish ends.
16. In the result, the F.I.R. in Crime No. 11 of 2018 is
quashed in so far as the petitioner is concerned and the
respondent police is directed to alter the FIR based on this
order and proceed against the 2nd respondent/defacto
complainant under Section 22 of the Protection of Child from
Sexual Offences Act, 2012."
(Emphasis supplied)
The Madras High Court was considering the petition under Section
482 of the Cr.P.C. Statements recorded of the victim therein under
Section 164 were placed before the Court. The Court taking note of
the statements recorded of the victim before the learned Magistrate
under Section 164 of the Cr.P.C., quashed the proceedings holding
that this was a worst type of false prosecution a Court can ever
encounter. The case at hand is no less. It is clearly in gross
abuse of the penal provisions by the complainant to settle his
idiosyncratic scores with the mother of the child, who had left him
and married the petitioner. It is unfortunate that the provisions of
the POCSO Act which are meant to protect the child from abuse are
being misused by a protagonist of the crime in the case at hand.
Several crimes are registered against each other for the custody of
the child. Stories are twined to retain the custody or to take
custody of the child. If regard is had to what is noted hereinabove,
this becomes a classic illustration of what is emerging as a trend
called 'malicious parent syndrome'. It is in public domain by
several competent analysts/psychologists that a malicious parent
engages in attempts to punish the other parent by alienating their
children and involving other persons or the Courts in action to
separate the other parent and the child; seeks to deny child
visitation, communication with the other parent and the other
parent's involvement in the child's school or extra curricular
activities; lies to their children and other persons repeatedly and
would also at times engage in violations of law, all of these are
found in the case at hand.
22. A caveat, the aforesaid observation is rendered on the
facts of the case. It cannot be construed that this Court, is
applying the fresco to every case of this kind, they would be on a
case to case basis depending on its facts. The emerging trend is
what has become worrisome. The wrangling parents forget that
they are projecting their own child to have been a subject of such
assault. The tune of negative impact of such projection on the
psyche of the child, is unimaginable. The parents should therefore
ponder and introspect before making such allegations. If it is true,
law will take its course, but if it is projected for the purpose of
custody, as is done in the case at hand, there can be no bigger sin,
that the parents can commit. It is these circumstances and for the
aforesaid reasons, permitting further proceedings would become
gross abuse of the process of law.
23. The Apex Court in the case of STATE OF HARYANA v.
BHAJAN LAL4 has held as follows:
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter XIV
and of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such power
could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice, though
it may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible guidelines
or rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
1992 Supp (1) SCC 335
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of
the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge."
(Emphasis supplied)
The Apex Court holds that a crime itself can be obliterated at the
stage of investigation if the Court finds that the crime is registered
out of mala fides or to wreck vengeance. In the case at hand the
investigation and the statements recorded of the prosecutrix clearly
reveal that impugned crime is registered with mala fide intentions
and only to wreck vengeance against the petitioner. Therefore,
permitting further proceedings would run counter to the judgments
rendered by the Apex Court supra and result in patent injustice to
the petitioner, abuse of the process of law and putting a premium
on the complaint so registered by the 2nd respondent.
24. For the aforesaid reasons, I pass the following:
ORDER
(i) Criminal Petition is allowed.
(ii) The proceedings in Special C.C.No.138 of 2022 c/w
Special C.C.No.982 of 2019 pending before the
L Additional City Civil & Sessions Judge, Fast Track
Court-1, Bangalore stand quashed qua the petitioner.
(iii) It is made clear that the observations made in the
course of the order are only for the purpose of
consideration of the case of petitioner under Section
482 of Cr.P.C. and the same shall not bind or influence
the proceedings against any other accused pending
before any other fora.
.
This Court places its appreciation for the able assistance
rendered by Miss. Sonia Singh R., Law Clerk cum Research
Assistant attached to this Court.
Sd/-
JUDGE
Bkp
CT:SS
