Courts Must Be Sensitive To Plight Of Woman Lodging Complaint Against Her Own Husband For Sexual Assault Of Their Daughter: Delhi High Court

The Delhi High Court on Friday observed that the Courts have to be sensitive to the situation where allegations have been lodged by mother of a minor victim against her own husband of having sexual contact with the daughter, that too in her presence in the house.

Justice Anoop Kumar Mendiratta made the observation while denying anticipatory bail to a husband, whose wife had alleged that he had sexually assaulted her five year old daughter. 

The FIR was registered against the petitioner under sec. 377 of Indian Penal Code as well as sec. 6 of POCSO Act. Later, sec. 376AB (punishment for rape of minor under 12 years of age) of the Code was also invoked against him.

The petitioner had disputed the occurrence of the incident claiming discrepancy in timings as well as past history of the matrimonial disputes.

Refusing to examine such contentions at this stage, the Court said,

"It cannot be ignored that the future of the victim child also gets impacted, at least in close circles and any mother would normally desist from taking the issues which may adversely affect her own child in social circles. The legal presumption as to the commission of offence and culpable mental state as legislated under POCSO Act has also to be kept in perspective while dealing with offences under POCSO Act," the Court said.

The Court also perused the statement of the minor victim recorded under sec. 164 CrPC and observed that it may be "far too stretched" to assume that the statement may have been made at the behest of complainant mother or was being used for settling the scores. It added,

"In case of allegations of offences against a minor victim, the Courts have to be sensitive to their plight when faced with a situation wherein allegations have been lodged by mother of the victim against her own husband of having sexual contact with his own daughter and that too in her presence in the house." 

The petitioner had argued that Section 376AB IPC could not have been directed to be invoked by the Additional Sessions Judge during the pendency of bail application.

Rejecting this contention, the Court observed,

"The invocation of correct section by the Investigating Agency on pointing out by the learned Additional Sessions Judge during the stage of investigation is not barred...if an error in not invoking the correct section comes to the notice of the Trial Court/MM at the stage of investigation, it cannot be deemed that the concerned judicial officer oversteps his jurisdiction in pointing out the error/deficiency though the power to invoke the relevant sections of law rests with the Investigating Agency."

The petitioner had also challenged the finding of the Trial Court that it is proscribed to deal with application under Section 438 CrPC for grant of anticipatory bail in view of Criminal Law Amendment Act, 2018.

At the outset, the High Court noted that the Amendment was brought specifically for the welfare of women and children, keeping in view the rising crime rate. Section 438(4) barred anticipatory bail for alleged commission of offences under Sections 376(3), 376AB, 376DA and 376DB IPC.

Thus it held,

"In view of sub-Section (4) of Section 438 Cr.P.C., the application for anticipatory bail is not maintainable before the learned Trial Court and the observations to this extent cannot be faulted with. The legislative intention is clear and implicit in placing embargo for grant of anticipatory bail in cases referred under sub-Section (4) of Section 438 Cr.P.C."

The Court went on to explain that merely because law prescribes alternate punishment, either under POCSO Act or under Section 376AB IPC, whichsoever provides for punishment greater in degree, the bar under Section 438(4) is not obliterated.

It observed,

"By virtue of Section 42 of POCSO Act, if the offence is punishable under POCSO Act as well as Section 376AB IPC and if the offender is found guilty of such offence, he shall be liable to punishment either under POCSO Act or under the IPC, whichsoever provides for punishment greater in degree. It cannot be inferred that the rigor of sub-Section (4) of Section 438 Cr.P.C. stands obliterated at the stage of bail since offender stands charged with both Section 376AB IPC as well as Section 6 of POCSO Act and may be punished on conviction under Section 6 of POCSO Act instead of Section 376AB IPC. The purpose of Section 42 is to ensure that an act constituting offence under two different enactments does not lead to double punishment for the same act constituting an offence"

With the said observations, the anticipatory bail plea was dismissed.

Case Title: V v. State

Citation: 2022 LiveLaw (Del) 757

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