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2018 DIGILAW 643 (CAL)

Manindranath Joydhar v. State

2018-09-04

I.P.MUKERJI

body2018
JUDGMENT : I.P. MUKERJI, J. 1. The accusation is like this. Priya Mondal was a minor at the material point of time. She was ostensibly married off to Manoj Bairagi who lived at R.K.Pur Katai, Hut Bay. Manoj, his parents Khokan and Malati along with the relatives of the girl Manindernath Joydhar and others were charged under various sections of the Protection of Children from Sexual Offences Act, 2012, Prohibition of Child Marriage Act, 2006 read with Indian Penal Code, for committing or aiding an unlawful marriage and culpable sexual activity. 2. Mrs.Anjili Nag cites sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012. She argues that this relates to the offence of aggravated penetrative sexual assault and the punishment for committing this offence. According to learned counsel, this offence can only be committed by certain categories of persons described in subsections 5 (a), (b), (c), (d), (e) and (f), that is to say by a police officer or a member of the armed forces or a public servant or someone in-charge of a jail, hospital etc. It did not apply to the petitioner No.6, Manoj to whom the victim girl was allegedly married off. 3. Ms.Zinu for the State pointed out the latter sub-sections, namely (l) and (m) which are to the following effect:- "(l). whoever commits penetrative sexual assault on the child more than once or repeatedly; or (m). whoever commits penetrative sexual assault on a child below twelve years;" 4. It is clear to me on appreciation of the entire section 5 of the said Act that the offence has been treated to be aggravated penetrative sexual assault by the legislature, not only on the basis of the type and description of the accused but also on the basis of its nature and gravity. If a person who in law or defacto in-charge of the victim has committed penetrative sexual assault on her the offence would be termed as 'aggravated' {See 5(a), (b), (c), (d), (e), (f), (o) and (p)}. Again if that offence is committed by some other person not falling in that category but repeatedly as in section 5(l) (n) or against a girl below twelve years of age or in other ghastly circumstances it is considered as 'aggravated', the emphasis being on the nature and gravity of the offence. The charge-sheet charges the petitioner No.6 under section 6. The charge-sheet charges the petitioner No.6 under section 6. Section 5(l) does not rule out such a charge being levelled against the petitioner No.6, although the charge-sheet ought to have stated under which sub-section of section 5, this petitioner was being charged. 5. Hence, in my opinion, this argument fails. 6. Mrs.Nag next referred to sections 4, 6 and 17 of the said Act. The charge-sheet charges the petitioner Nos.1 to 5 and 7 and 8 with offences under those sections. Learned counsel submitted that the petitioner Nos.1 to 5 were relatives of the victim and petitioner Nos.7 and 8 were her mother-in-law and father-in-law. Section 4 relates to punishment for penetrative sexual assault, section 6 to punishment for aggravated penetrative sexual assault under section 5 and section 17 to punishment for abetment. She argued that in such a relationship the charges under sections 4 and 6 against those petitioners were misconceived. So were the charges under section 17. 7. The argument of the prosecution is that these sections have been clubbed together so as to highlight the exact nature of the offences. 8. I am of the opinion that Mrs.Nag is partly right on this point. Sections 4 and 6 cannot apply to the petitioner Nos.1 to 5 and 7 and 8 because there is no case whatsoever of penetrative sexual assault or aggravated penetrative sexual assault against any of them. 9. But I do not see why the charge of abetment cannot be made against them. One does not or cannot commit an offence, but may abet another to commit it by encouragement. May be there is no charge against the petitioners, accusing them of committing the offences under sections 4, 5 and 6 but they have to absolve themselves of the charge of having abetted Manoj to commit the offence under sections 4, 5 and 6 of the said Act. 10. In those circumstances, this application for criminal revision is disposed of by deleting the charges against the petitioner Nos.1 to 5 and 7 and 8 under sections 4, 5 and 6 of the Protection of Children from Sexual Offences Act, 2012, only. The trial may proceed with regard to the rest of the charges.