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The doctrine of anticipatory bail and judicial discretion under Section 438 of the Code of Criminal Procedure

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INTRODUCTION

The provision provided for in section 438 of the Code of Criminal Procedure- Direction for grant of bail to a person apprehending arrest which is also referred to as anticipatory bail in common parlance is a bail sought for, in anticipation of the arrest. The provision of anticipatory bail has been added in the Code of Criminal Procedure, 1973 because of the social stigma that is associated with the arrest of a person. That is to say, society attributes negative values to an arrested person and looks on with great ignominy. Moreover, though the police most of the time work in the furtherance and within the sweep of its duty but are sometimes influenced politically. This kind of bias can lead to needless physical and mental harassment to the person detained, metaphorically speaking, even though he has clean hands. The political rivalry which is intended to degrade the image and bring disgrace by implicating him in a false case takes a toll on the personal liberty of the person. This is where the role of Judiciary steps in, in adjudicating and applying the wide discretionary power the Indian Legislature has vested it with. The Code of Criminal Procedure (Amendment) Act, 2005 on the recommendations of the 203rd Report of the Law Commission of India conferred the jurisdiction on the High Court and the Court of Sessions for a direction granting bail to a person apprehending arrest under Section 438(1) of Cr.P.C. While making such direction under subsection (1), the High Court or the Court of Sessions may direct in the light of the facts and circumstances of the case, “as it may think fit”, after taking into consideration the factors laid down in subsection (1). The judicial discretionary power under Section 438, Cr.P.C., is of a wide ambit, the same can be ascertained by the legislative intent which is manifested in the verbatim of the section, specifically the use of “as it may think fit” in subsection (2). Therefore, the legislature has conferred this wide discretionary power in the higher echelons of the judiciary to avoid the possibility of flawed decision making, however, to rule out the risk in totality the decision of the High Court and the Court of Sessions can be subjected to revision and appeal. After having reflected on the abovementioned provision, the problem before the researcher is- considering the judicial trend of a few cases, one of them being a recent case of the year 2019- P Chidambaram v. Directorate of Enforcement; the purview of the judicial discretionary power under Section 438, Cr.P.C., has been generalised, to not be applied to cases of ‘economic offences’. On the other hand, checks and balances in the form of broad guidelines have already been laid down in the landmark case of Gurbaksh Singh Sibbia v. the State of Punjab so the discretion is not left unregulated. Further, the aforementioned case states that “the generalisation of any sort destroys the very purpose of grant of judicial discretion by the legislature”. So, the article focuses on the question that- What has been the approach of the Indian Judiciary vis-a-vis the judicial discretionary power vested with it in Section 438, Cr.P.C.- broad guidelines or generalised and narrow rules? Further the article would also be taking into consideration how the doctrine of anticipatory bail came into existence?

The emergence of the doctrine of Anticipatory Bail provided for in Section 438, Cr.P.C.

The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction. In the Amendment Act, 1955 the words “suspected of the commission of an offence” was added to the Code of Criminal Procedure, 1898 concerning the provision of bail, i.e. Section 497- “When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” These words were interpreted to mean that the Legislature has conferred wider powers on the court. The amended section lays down that if a person appears before the Court, he can be released on bail by the Court. The Madhya Pradesh High Court, therefore, went ahead with the concept of anticipatory bail in the case of Abdul Karim Khan v. State of Madhya Pradesh and ordered that the applicant shall not be arrested by the police and remain on bail till the decision of the case. However, State of Madhya Pradesh v. Narayan Prasad Jaiswal overruled the above-mentioned case on the ground that, bail could not be granted to a person who had not yet been arrested for an actual charge of any offence or even on suspicion of his complicity in any offence and who was not required to surrender to any custody under any order of arrest but who apprehended that they would be arrested as persons accused of or suspected of the commission of an offence. So, even before the recommendations made by the 41st Report of the Law Commission of India in 1969 with respect to the inclusion of a provision corresponding bail in anticipation of arrest, there had already been a conflict of opinions within the Indian Judiciary in this regard. The Law Commission in its 41st Report recommended that provision relating to anticipatory bail should be introduced as Section 497-A in the Code of Criminal Procedure, 1898. The Commission viewed this as a necessity because of the increase in the number of cases pertaining to political rivalry wherein sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them by getting them detained in jail for some days. The Central Government after considering the recommendations introduced clause 447 in the draft Bill of the new Code of Criminal Procedure, 1970 to confer express powers concerning anticipatory bail on the High Court and the Sessions Court. The Law Commission of India in its 48th Report reconsidered the recommendations made in the 41st Law Report and proposed measures to prevent the provision provided for in Section 438 from abuse by dishonest petitioners. The final order should mandatorily be made after notice to the Public Prosecutor. The initial order being an interim order. Moreover, when the court is satisfied with the directions; being necessary and for the interest of justice only then it is allowed to issue such directions. Furthermore, the court should record reasons for issuing directions under the said section.

Thus, clause 447 of the draft bill appeared in the form of Section 438 of the Code of Criminal Procedure, 1973 which provided for the “Directions for grant of bail to person apprehending arrest”.

Judicial Discretion vis-a-vis Section 438 Cr.P.C.

‘Judicial discretion’ has been remarked by Lord Mansfield as “Discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular. The words “may if it thinks fit” used in Section 438(1) and the absence of any specific restraints on the exercise of the power to grant “anticipatory bail” clearly indicates that the legislature intended to confer and has in fact conferred a very wide discretion on the High Court and the Court of Sessions to grant “anticipatory bail”. The Law Commission of India in the 41st Report ingeminated the principles concerning bail. One of the relevant principles in this regard is that “bail is a matter of discretion if the offence is non-bailable’’. Therefore, such discretion can only be exercised for non-bailable offences. Sandhawalia, J., of Punjab & Haryana High Court in Gurbaksh Singh v. State stated that the discretion in Section 438, Criminal Procedure Code, should not be exercised with regard to an offence punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge is false or groundless. Under Section 438, Cr.P.C., discretionary power has been conferred on the Court to grant pre-arrest bail. The judicial discretion vested in the Court requires it to be appropriately exercised with the proper application of mind in determining whether a case is a fit case for grant of anticipatory bail or not. The court while dealing with an application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. Discretion must be exercised on the basis of available material and facts of a particular case. It is really necessary that the judicial discretion exercised with respect to Section 438, Cr.P.C. has to be a cautious one. The court under Section 438, Cr.P.C. in the exercise of the judicial discretion cannot act on the basis of whims and fancies just because the discretion conferred is wide and norms have not been prescribed for that matter. The discretion exercised shall appear a just and a reasonable one. Also, anticipatory bail is not just about directions being granted on the basis of judicial discretion, the accused has to make out a case wherein he has been accused of the commission of a non-bailable offence and there must be a reasonable apprehension in his mind that he would be arrested based on such accusation. Furthermore, The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra observed that the law of bail dovetails two conflicting interests namely, the obligation to shield the society from the hazards of those committing and repeating crimes and on the other hand absolute adherence to the fundamental principle of criminal jurisprudence – the presumption of innocence and the sanctity of individual liberty. Therefore, the judicial discretion in the said section, i.e. 438, Cr.P.C. must be exercised with due consideration to not only the interest of the society but also the interest of the accused.

An analysis of the approach adopted by the Indian Judiciary- broad guidelines v. narrow rules in regard to Section 438, Cr.P.C.

The Law Commission of India in the 41st Report contemplated the question of providing for conditions under which anticipatory bail could be granted. But, it was concluded that it is not practicable to enumerate the conditions exhaustively. Laying down of conditions would amount to prejudging the case. Therefore, the discretion was conferred with the higher echelons of the judiciary with a view that the superior courts would exercise this discretion properly. It is noteworthy to be informed about certain case laws wherein various courts have decided on the point that economic offences cannot come under Section 438, Cr.P.C. as they are supposed to be categorised in a different class and, therefore, direction for anticipatory bail cannot be granted. The Supreme Court of India in State (CBI) v. Anil Sharma the court noted that the provision under Section 438, Cr.P.C. has to be used sparingly, specifically in the case of economic offences, that constitute a class apart. Furthermore, in Directorate of Enforcement v. Ashok Kumar Jain the Supreme Court of India noted with regards to anticipatory bail that, in offences relating to economy and matters involving finance, the accused is not entitled to anticipatory bail. The Supreme Court of India in another case, Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation again reiterated that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. In the recent case of P Chidambaram v. Directorate of Enforcement, the same principle has been upheld. On the contrary, in Gurucharan Singh v. State, the court observed that there cannot be an inexorable formula in the matter of granting bail. Furthermore, in the case of Gurbaksh Singh Sibbia v. State of Punjab which is treated as an authority in law several propositions have been laid down with respect to judicial discretion in Section 438, Cr.P.C. It, thus, runs as- generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion; no two cases are alike on the facts and therefore, courts have to be allowed a little free play if the conferment of discretionary power is to be made meaningful. Further, the same case observed a somewhat contrary approach and held that it is not proper to hold that in serious offences involving blatant corruption at the highest rungs of the executive and political power the discretion under Section 438, Cr.P.C. should not be exercised. It is not possible to assess the blatantness of corruption at the stage of anticipatory bail. The court further negated the stand of devising a formula that will confine the power to grant anticipatory bail within a straitjacket. A contemporary case of the year 2020, Sushila Aggarwal v. State held that the principle that anticipatory bail should not be granted normally- including the cases of economic offences, etc are not good in law and, thus, overruled the principle that “economic offences to be exonerated from the grant of anticipatory bail”. Having said that, the case of Gurbaksh Singh Sibbia v. State of Punjab a five-judge constitution bench laid down an 8 point-code that acts as a guide in exercising discretion under Section 438, Cr.P.C. until overruled by a larger constitution bench. This eight-point code as has been mentioned previously negates the idea of encompassing or restricting the judicial discretion within a straitjacket. Classifying “economic offences as a class apart” clearly narrows down the ambit of judicial discretion in the said section and, the same is against the legislative intent and the authority laid down in Sibbia. This falls under the formulation of rigid rules without analysing the uniqueness of the facts and circumstances on a case-to-case basis. Furthermore, the generalisation of the matters vested in the discretion of the judiciary manifestly frustrates the idea of conferring wide discretionary power under Section 438, Cr.P.C. Therefore, only and only broad guidelines that do not let the judicial discretionary power go unguided is intended by Section 438, Cr.P.C.

CONCLUSION

The emergence of the doctrine of anticipatory bail has been an issue of disagreement between the courts even before the recommendation in that regard was made by the 41st Report of the Law Commission of India. A provision like that of Anticipatory Bail goes a long way in preserving the interest and liberty of the accused on the basis of the principle of Presumption of Innocence that has been ingrained in the Criminal Jurisprudence. Simultaneously, the interest of the society cannot be ignored and, therefore, the exercise of judicial discretion has to be a cautious one. Secondly, the researcher submits that the generalisation and narrowing down of judicial discretion into rigid rules has never been the intention of the legislature and, therefore, frustrates the whole idea of conferring wide discretionary powers on the High Court and the Court of Sessions under Subsection (2) of Section 438, Cr.P.C. So, only and only broad guidelines that do not let the discretionary power go unguided should be relied on, for that matter.

The Code of Criminal Procedure, 1898 did not accommodate a provision corresponding to present Section 438 with respect to the grant of anticipatory bail. Anticipatory bail was, however, granted in certain cases under the High Courts’ inherent powers though the preponderant view negated the existence of any such jurisdiction.

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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In Company Law the duomatic principle is applicable even in Indian context: Supreme Court

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The Supreme Court in the case Mahima Datla vs Renuka Datla observed and stated that it will be applicable even in the Indian context, if the same is consented by all members ‘strict adherence to a statutory requirement may be dispensed with if it is demonstrated in the Duomatic Principle.

It was therefore held that G.V. Rao never seized to be a Director of the Company in view of the acquiescence by Dr. Datla and he had withdrawn his resignation prior to its acceptance, the resignation dated 6th April 2013 was clearly not accepted by Mr. G.V. Rao, as it is clearly being showed by her conduct and there is overwhelming evidence to show that Dr. Datla had accepted Mr. G.V. Rao back into the Board, in this case the court noted.

anything the members of a company can do by formal resolution in a general meeting, they can also do informally, if all of them assent to it, as stated briefly in the Duomatic Principle as derived from the decision In Re: Duomatic Ltd further the court noted the case of Salmon v. Salmon Co. Ltd, as it was held in that case if a company is bound in a matter intra vires by the unanimous agreement of its members. As In Re the court noted that the Duomatic Principle as derived from the decision.

Mr. G.V. Rao continued to carry on as the Director in view of the acquiescence by Dr. Renuka Datla? And weather can the Duomatic Principle can be invoked to state that the issue of resignation of the Director had lapsed, as one of the issues being raise in the appeal filled before the Apex Court.

The High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh allowed the Company appeal filed by Dr. Datla and the court further issued the various directions as this petition was dismiised by the Board as only to ensure Dr. Datla doesn’t have sufficient shareholding to maintain a petition under Sections 397 and 398 of the Companies Act, 1950, as it was being approached by Dr. Datla to the Company Law Board complaining that the holding of board meetings was illegal as an attempt was made to increase the number of members in the Company.

there is no protest by Dr. Renuka Datla regarding attendance of Mr. G.V. Rao. Dr. Renuka Datla also participated in the Board Meetings dated 22nd August 2013 and 25th September 2013, without any protest for continuation of Mr. G.V. Rao as its Director as in the resolution passed. The latter which was placed in the meeting of the Board on 9th April 2013, seeking withdrawal of his resignation as on 6th April 2013, G.V Rao submitted his resignation letter and further which it was later withdrawn by G.V Rao on 9th April 2013. As on 20th March 2013 the late Dr. Vijay Kumar Datla as the directors of the Company were Biological E. Ltd are Dr. Renuka Datla and one G.V Rao.

The bench comprising of Justice Vineet Saran and the justice JK Maheshwari clarified that the said principle is only applicable in those cases wherein bona fide transactions are involved and that ‘Fraud’ is a clear exception.

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SUPREME COURT ASKS WEST BENGAL GOVERNMENT TO LOOK INTO REPORT OF OLDER WOMEN PUSHED INTO PROSTITUTION AFTER COVID IN SOUTH 24 PARGANAS

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The Supreme Court in the case Budhadev Karmaskar v. State of West Bengal and Or’s observed that women of older age groups are being forced into prostitution after the onset of the COVID-19 pandemic and further the court ordered the State of West Bengal to look into the issue that in South 24 Parganas District of West Bengal.

The traffickers who were finding it difficult to get hold of young women due to the lockdown had shifted focus and by taking advantage of their acute poverty which was being worsened by the pandemic engaged older women from West Bengal’s costa regions in prostitution. An article was referred by the Amicus, The Article covered the plight of the women in the Sunderban Delta region of West Bengal and stated and noted that the pandemic coupled with climate change is now pushing older women and even the grandmothers into the trade, the Article was published on the website of The Print.

The pandemic that has stretched on for more than two years, it was said by the activists working in the area and this made them vulnerable to traffickers who found it difficult to procure young women and minor girls and shifted focus to middle aged women from West Bengal’s coastal regions due to their abject poverty.

No precautionary measure are taken by the State Government though the State Government is aware it further request the State Government to look upon the issue as due to the pandemic In South 24 Parganas (West Bengal), aged women are being used for this purpose for their poverty.

The Bench asked the Counsel representing the State of West Bengal to look into this issue and respond when the matter is put up for hearing on 05.17.2022., At the request of the Amicus the bench directed.

The Bench Comprising of Justice L. Nageswara Rao and the justice B.R. Gavai observed that the older women in South 24 Parganas District of West Bengal, from poor families, especially after the onset of the pandemic, are being pushed into prostitution and the Amicus further alleged though the State Government aware of the same but the State Government have not taken any precautionary measures. The Bench noted while hearing a plea seeking various benefits for sex workers across the country, Amicus Curaie, Mr. Piyush K. Roy apprised it that, as per news reports.

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Supreme Court sets aside POCSO conviction; TN custom is of marriage of girl with maternal uncle

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The Supreme Court in the case K Dhandapani vs State observed while hearing a plea that after noticing that he had married the prosecutrix and had two children, a man accused in a POCSO case, the court set aside the conviction.

The Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. Thereafter the Court said that it has been informed of the custom in Tamil Nādu of the marriage of a girl with the maternal uncle. if the accused-appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move for modification of this Order, further being clarified by the Court. The bench is of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court, while considering the facts and circumstances of the Case.

The Court observed, while allowing the appeal that the marriage between the accused and the prosecutrix is not legal and it was submitted by the state in an appeal that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and the second child was born when she was 17 years.

the prosecutrix stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life, the statement given by her was being noticed by the Court. the allegations submitted by the

the appellant against him was that he had physical relations with the prosecutrix on the promise of marrying her and that he married the prosecutrix and they have two children, submitted before the Apex Court.

Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012 and reading with the Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n). the maternal uncle of the prosecutrix who is the accused in the said case was being convicted under the said sections and was sentenced to undergo rigorous imprisonment for a period of 10 years by the Madras High Court.

The Bench comprising of Justice L Nageswara Rao and the justice B R Gavai observed while rejecting the objection raised by the State which contended that the marriage might be only for the purpose of escaping punishment that the court have been informed about the custom in Tamil Nādu of the marriage of a girl with the maternal uncle and on the ground of reality and to disturb the happy family life of the appellant and the prosecutrix, The Court cannot shut its eyes.

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