CASE NUMBER

Bail Appl. No. 8346 of 2018

CITATION

2019 SCC OnLine Ker 13012

BENCH

THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

DECIDED ON

Decided on January 24, 2019

FACTS OF THE CASE

The applicant is a PMSAMA Higher Secondary School Urdu teacher. He oversaw the NSS’s activities. On November 6, 2018, the victim, a minor child, and a student from a different school went to a camp at PMSAMA Higher Secondary School in Malappuram. The applicant is said to have complimented her on her accomplishments. He invited the victim to the principal’s chamber at 4 p.m. He took two pens from his drawer, one of which he gave to the sufferer. He then kissed her on the forehead after touching her hand. It was offensive to the victim since, according to her, it was done with sexual purpose. A complaint was filed on November 27, 2018, alleging these claims, which resulted in the subject offense being registered under Section 10 read with Section 9 of the Protection of Women from Sexual Offenses Act, 2012.

RELEVANT SECTION

Under Section 438 of the Code of Criminal Procedure, this case was filed under the Hon’ble court. Section 438 of CrPC talks about anticipatory bail regarding the commencement of doing some nonbailable offense. Anticipatory bail means that a person who is apprehending an interest can apply for bail in advance. The addition of this provision was a recommendation made by the 41st Law Commission of India.

ISSUES BEFORE THE COURT

Is the accused liable under Section 10 read with Section 9 of the Protection of Women from Sexual Offences Act, 2012?

Section 9 of the POCSO Act: Talks about Aggravated Sexual Assault
Whoever conducts a sexual assault on a child while serving as a police officer: inside the confines of the police station or premises to which he is assigned; or (ii) within the confines of any station house, whether or not located within the police station to which he is assigned;
or
(iii) while performing his responsibilities or otherwise; or
(iv) where he is identified or known as a police officer; or

(b) whomsoever commits sexual assault on a child while serving in the armed forces or security forces in jail, remand home, protection home, observation home, or other places of custody or care and protection established by or under any government authority; or whoever commits sexual assault on a child in a hospital, whether government or private; or whoever is on the staff of management of a jail, protection home, remand home, observation home or other
place of custody or care and protection established by or under any government authority.

Hence, that a child is sexually assaulted by one or more members of a group in furtherance of their common goal, each of those members is deemed to have committed gang sexual assault within the meaning of this clause, and each of those members is liable for the act in the same way as if he had done it alone;

SECTION 10 of the POCSO Act: It talks about Punishment for aggravated Sexual Assault
Anyone who commits serious sexual assault faces a sentence of imprisonment of either kind for a period of not less than five years but not more than seven years, as well as a monetary fine.

DECISION OF THE COURT

The High Court of Kerala held that the entire dispute between the respondent and the petitioner was settled amicably. The bench of Justice Alexander Thomas in the judgment wrote that the dispute was settled amicably and ordered that petitioner’s mother was required to submit an affidavit stating that she had no problem with the quashing of FIR.

SUPREME COURT ON THE DECISION

Justice M.R. Shah of the Supreme Court held in Laxmi Narayan that the High Court in that the case had not taken into account the relevant facts and circumstances of the case, particularly the seriousness of the offenses and their social impact while quashing the FIR as a result of the parties’ settlement, despite the fact that it was a non-compoundable offense. In that case, Justice Shah found that the High Court failed to assess the distinction between a personal or private wrong and a social wrong, as well as the societal impact.

During the hearing of the Kerala Government’s appeal against the ruling, the bench observed the government’s argument that quashing the FIR is not relevant in light of the Supreme Court’s decision in the case State of Madhya Pradesh vs. Laxmi Narayan & Ors (2019). Justice M.R. Shah of the Supreme Court held in Laxmi Narayan that the High Court in that the case had not taken into account the relevant facts and circumstances of the case, particularly the seriousness of the offenses and their social impact while quashing the FIR as a result of the parties’ settlement, despite the fact that it was a non-compoundable offense. In that case, Justice Shah found that the High Court failed to assess the distinction between a personal or private wrong and a social wrong, as well as the societal impact. In this case, the High Court has taken no pains to examine the complete set of facts in context and has quashed the criminal proceedings on a mechanical basis.

This is written by Dalima Pushkarna student at Dr. Ram Manohar Lohiya National Law University, Lucknow.