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2019 DIGILAW 40 (MAN)

Thounaojam Tejkumar Singh v. State of Manipur

2019-07-05

M.V.MURALIDARAN

body2019
JUDGMENT : M.V. Muralidaran, J. 1. Heard Mr. M. Ibohal Singh, learned counsel appearing for the petitioner and Mr. Y. Ashang, learned PP appearing for the respondents. 2. This petition has been filed by the petitioner under Section 482 Cr.P.C. to quash the proceedings in ST (POCSO) Case No. 2 of 2018 on the file of the Special Court (POCSO), Imphal East. 3. The petitioner, who is the accused facing trial in ST (POCSO) Case No. 2 of 2018 on the file of the learned Special Court (POCSO), Imphal East, has come forward with the present petition alleging that respondent No. 10 lodged a complaint against the petitioner before respondent No. 4 stating that the petitioner sexually assaulted his daughter, the minor girl. After registering the case and after conducting investigation, respondent No. 5 laid charge sheet before the learned Special Court (POCSO), Imphal East against the petitioner for the offence punishable under Section 6 of the POCSO Act, 2012. On receipt of the charge sheet, the learned Special Judge took cognizance under Section 6, of POCSO Act, 2012 against the petitioner. 4. The case of the petitioner is that the learned Special Judge took cognizance without any valid medical report and that the order dated 22.05.2018 taking cognizance on the basis of the incomplete medical report would amount to a total contradiction and violation of the final medical report. Further case of the petitioner is that the statement of the alleged child victim, charge sheet, order dated 22.5.2018 taking cognizance and the final medical report have flagrantly violated the petitioner's right to fair investigation, inquiry and trial guaranteed by Article 21 of the Constitution of India. Hence, the petitioner prayed for quashing of the proceedings in ST (POCSO) Case No. 2 of 2018. 5. The learned counsel for the petitioner argued that the FIR registered against the petitioner in the present case is not supported by the final medical report and that the final medical report flagrantly violates Section 27 of the POCSO Act, 2012 read with Section 164A(3) and Section 53A(3) of Cr.P.C. He would submit that the final medical report is not supported by a valid reason inasmuch as it based on the expert report dated 12.4.2018, which still requires and demands DNA profiling. 6. 6. The learned counsel then submitted that the statement of the victim recorded by the learned Judicial Magistrate First Class, Imphal East is not in the statement as spoken by the victim child though it is so mandated by Section 25 read with Section 26 of the POCSO Act that the statement should be recorded in the statement as spoken by the child. The learned counsel further submitted that the petitioner is innocent of the charges levelled against him. He would submit that the case arose out of the personal vendetta of respondent No. 10 towards the petitioner as in the last Manipur Legislative Election, 2017, the petitioner supported Congress (I) candidate and respondent No. 10 supported BJP candidate and, therefore, respondent No. 10 had enmity towards the petitioner though they were close relatives. 7. Per contra, reiterating the contents in the FIR, statement of the child victim and the charge sheet, the learned Public Prosecutor submitted that the charges levelled against the petitioner are serious in nature and the same require a detailed trial. Therefore, at this stage, the petitioner is not entitled to maintain petition under Section 482 Cr.P.C. and prayed for dismissal of the petition. 8. I have considered the submissions made by the learned counsel for the petitioner and the learned Public Prosecutor and also perused the materials available on record. 9. The case of the prosecution, as could be seen from the charge sheet, is that on 08.10.2017 at 9.00 P.M., the victim girl was crying because of pain on her private parts and on questioning about her pain, she disclosed that she was forcibly taken by her uncle, the petitioner Thounajam Tejkumar Singh, at his residential gate on that day at 8.30-9.00 P.M. and he fingered her private parts, thereby sexually assaulted the victim girl. By an order dated 22.05.2018, the learned Special Court, after perusing the medical records before it, took cognizance under Section 6 of the POCSO Act, 2012 in ST (POCSO) Case No. 2 of 2018 against the accused and posted the case for appearance on 31.5.2018. 10. It appears that earlier, the petitioner filed Criminal Revision Petition No. 18 of 2018 before this Court to stay the proceedings till he gets a copy of the final medical report of Dr. Memchoubi. 10. It appears that earlier, the petitioner filed Criminal Revision Petition No. 18 of 2018 before this Court to stay the proceedings till he gets a copy of the final medical report of Dr. Memchoubi. Pursuant to the order dated 02.04.2018 passed in Criminal Revision Petition No. 18 of 2018, the petitioner approached the learned Special Court and had obtained the copy of the final medical report. Now, the petitioner is seeking to quash the criminal proceedings in ST (POCSO) Case No. 2 of 2018 on the ground that the FIR, medical report, statement of the victim girl and the final opinion together with forensic science report clearly establish that a false case has been foisted against him. 11. The learned counsel for the petitioner argued that the petitioner filed the present petition to quash the criminal proceedings initiated against him mainly on the ground that the statement of the victim recorded by the learned Judicial Magistrate First Class, Imphal East is not in accordance with the provisions of POCSO Act, 2012. According to the learned counsel, as per Section 25 read with 26 of the POCSO Act, 2012, the statement should be recorded in the statement as spoken by the child. In the instant case, the victim is a Manipuri and her statement should have been recorded in Manipuri. But, the learned Judicial Magistrate, who has recorded the statement under Section 164 Cr.P.C. has not so recorded and, therefore, the statement of the alleged victim girl recorded under Section 164 Cr.P.C. is not valid and acceptable in law. 12. Before dealing with the aspect of recording of the Section 164 Cr. P.C. statement by the learned Judicial Magistrate, let us consider the merits of the claim made by the petitioner in the instant case. 13. To deal with child sexual abuse cases, the Government has brought in a special law, namely. The Protection of Children from Sexual Offences (POCSO) Act, 2012. The Act has come into force with effect from 14th November, 2012 along with the Rules framed thereunder. 14. The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. 15. 14. The POCSO Act, 2012 is a comprehensive law to provide for the protection of children from the offences of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated Special Courts. 15. The POCSO Act, 2012 defines a child as any person below eighteen years of age, and defines different forms of sexual abuse, including penetrative and non-penetrative assault, as well as sexual harassment and pornography, and deems a sexual assault to be "aggravated" under certain circumstances, such as when the abused child is mentally ill or when the abuse is committed by a person in a position of trust or authority vis-a-vis the child, like a family member, police officer, teacher, or doctor. People who traffic children for sexual purposes are also punishable under the provisions relating to abetment in the said Act. The said Act prescribes stringent punishment graded as per the gravity of the offence, with a maximum term of rigorous imprisonment for life, and fine. 16. In Ms. Eera Through Dr. Manjula Krippendorf Vs. State (Govt. of NCT of Delhi) & Anr., reported in (2017) 15 SCC 133 , the Hon'ble Supreme Court emphasized the purpose of bringing the POCSO Act, 2012. The relevant portion of the decision of the Hon'ble Supreme Court reads thus: "18. The purpose of referring to the Statement of Objects and Reasons and Preamble of the POCSO Act is to 19 appreciate that the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing child friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act." 17. As stated supra, the offence involved in the instant case is a sexual offence relating to a minor girl aged about 4 years, who happens to be a close relative of the petitioner. There is nothing emerging from the materials available on record to falsely implicate the petitioner - more so, there is nothing attributable to the minor victim girl or the complainant. There is no authenticity about the plea of animosity. The conduct of the victim girl is also found natural who reported the matter to her parents after the occurrence while she was disturbed by the pain at her private part. Such a minor girl aged about 4 years cannot assess implication and consequences of the conduct of the petitioner and as such she returned to her house and only when she found it difficult to urinate, then she reported the matter to her parents, who in turn lodged the complaint before the Police and based on the complaint, the Police has investigated the case and filed the charge sheet against the petitioner and on satisfying about the prima facie case i.e. FIR, medical reports and statement of witnesses, the learned Special Judge took cognizance of the offence. 18. Matter of sexual assault is generally not discussed to all in the society in the fear of shame and insecurity and social stigma to the child. 18. Matter of sexual assault is generally not discussed to all in the society in the fear of shame and insecurity and social stigma to the child. However, in the present case, it is found that the FIR was filed instantly without any delay to raise doubt for any deliberation and afterthought. That apart, there is no pleasure on the part of a woman in the context of Indian society to lodge a false FIR by projection a minor child at the peril of her future and social stigma at large. 19. Insofar as the power and jurisdiction of the High Court under Section 482 of Cr. P.C. is concerned, is well settled that while exercising the powers under Section 482 of the Code, the High Court does not function as the Court of appeal or revision. The inherent power under Section 482 of Cr.P.C., can be exercised to give effect to an order under the Code to prevent abuse of process of the Court and to otherwise secure the ends of justice. It is also well settled that the inherent powers under this provision should not be executed to stifle a legitimate prosecution. 20. In the instant case, the victim girl has been subjected to such sexual conduct by the petitioner, which is vulnerable to the society at large and the Special Act for Protection of Children from Sexual Offences Act, 2012 has been enacted for tackling the problem of child abuse. Therefore, prima facie, I am of the view that the grounds raised by the petitioner seeking to quash the criminal proceedings in ST (POCSO) Case No. 2 of 2018 initiated against him have no substance and the petitioner has to face the trial of the criminal proceedings. 21. Now coming to the ground raised by the petitioner that the learned Judicial Magistrate, who had recorded Section 164 Cr.P.C. statement has failed to record the statement of the victim as per Section 25 read with Section of the POCSO Act, 2012 is concerned, it is an admitted fact that the learned Judicial Magistrate has recorded Section 164 statement of the victim girl in English language. 22. 22. When the present petition was taken up for hearing on 26.04.2019, finding that the learned Judicial Magistrate recorded Section 164 Cr.P.C. statement of the victim in English language though the statement has been given by the victim in Manipuri language, this Court called for explanation from Mrs. N. Lanleima, learned Judicial Magistrate, who recorded the statement of the victim. By the reply dated 26.04.2019, the learned Judicial Magistrate stated that since English language is used in all the Courts of Manipur as language of the Court, all statements/orders, any business of the Courts are being recorded in English language. Following the common practice, the statement of the child witness in the present case was also recorded in English. In her reply, the learned Judicial Magistrate also stated that though the statement was recorded in English language, the same was translated version of the statement as spoken by the child. The same practice is being followed in all the other Courts, including in cases under POCSO Act. 23. At this juncture, it is apposite to refer to Section 25 of the POCSO Act, 2012, which reads thus: "S. 25 Recording of statement of a child by Magistrate. (1) If the statement of the child is being recorded under section 164 of the Code of Criminal Procedure, 1973 (2 of 1974), (herein referred to as the Code), the Magistrate recording such statement shall, notwithstanding anything contained therein, record the statement as spoken by the child: Provided that the provisions contained in the first proviso to sub-section (1) of Section 164 of the Code shall, so far it permits the presence of the accused shall not apply in this case. (2) The Magistrate shall provide to the child and his parents or his representative, a copy of the document specified under Section 207 of the Code, upon the final report being filed by the police under Section 173 of that Code." 24. Thus, it is clear that statement under Section 164 Cr.P.C. of the victim should be recorded as spoken by the victim child. In the present case, the victim is a Manipuri and the learned Judicial Magistrate, who recorded the statement, also stated in her explanation that the statement recorded is the translated version of the statement as spoken by the victim. In the present case, the victim is a Manipuri and the learned Judicial Magistrate, who recorded the statement, also stated in her explanation that the statement recorded is the translated version of the statement as spoken by the victim. When Section 25 of the POCSO Act, 2012 clearly states that Section 164 Cr.P.C. statement of the victim child ought to be recorded as spoken by the victim child, recording of such statement by the learned Judicial Magistrate in English language is not in accordance with the provisions of the POCSO Act, 2012. However, the same would not in any way affect the criminal prosecution initiated against the petitioner considering the charge levelled against him and it is the duty of the petitioner to prove the his innocence. 25. It is pertinent to point out that by an order dated 26.04.2019, this Court also called for explanation as to how the learned Magistrate had obtained the signature of the four years old minor girl, namely, Reviya, that too in English language. In this regard, the explanation offered by the learned Judicial Magistrate reads thus: "Regarding the second point, I beg to submit that as statement of witness recorded u/s. 164 Cr.P.C. are required to be signed by the witness, in the present case too, when the child replied in affirmative when asked if she could write her name, her name/signature was obtained in her statement. She was not asked to write her name in English, she wrote her name in English as English is the common medium in most schools in Manipur and most schools do no teach Manipuri language till they attend higher class. Her signature/name on the statement was given voluntarily, the same was obtained to authenticate the statement and also in order to comply with the provision of Section 164 Cr.P.C., which requires statement recorded therein to be signed." 26. Section 164 Cr.P.C. provides: "164. Recording of confessions and statements. Her signature/name on the statement was given voluntarily, the same was obtained to authenticate the statement and also in order to comply with the provision of Section 164 Cr.P.C., which requires statement recorded therein to be signed." 26. Section 164 Cr.P.C. provides: "164. Recording of confessions and statements. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any, time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is bear, made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect. "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily make. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A.B. Magistrate". It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A.B. Magistrate". (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case, and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under section shall forward it to the Magistrate by whom the case is to be inquired into or tried." 27. Thus, it is clear that the statement of witness recorded under Section 164 Cr.P.C., is required to be signed by the witness. However, in the present case, the victim girl being aged four years at the relevant point of time, the learned Judicial Magistrate ought not to have asked the victim girl to sign in the statement. Anyhow, taking note of the explanation offered by the learned Judicial Magistrate, obtaining of signature in Section 164 Cr.P.C. statement of the victim would not be a serious flaw in the facts and circumstances of the case. Further, while recording Section 164 Cr.P.C. statement of witness in the cases of POCSO Act, the learned Judicial Magistrate ought to follow the procedure as contemplated under POCSO Act, 2012. This Court is of the view that it is a right time to issue direction to all the Judicial Magistrate/Chief Judicial Magistrate in the State of Manipur through the Registrar General of this Court to follow the procedures contemplated under POCSO Act, 2012 while recording Section 164 Cr.P.C. statement of victims/witnesses. 28. For the foregoing discussions and taking into consideration the charge levelled against the petitioner. I am of the view that the petitioner is not entitled to seek quashing of the criminal proceedings in ST (POCSO) Case No. 2 of 2018. 29. In the result, (1) The Criminal Petition is dismissed. 28. For the foregoing discussions and taking into consideration the charge levelled against the petitioner. I am of the view that the petitioner is not entitled to seek quashing of the criminal proceedings in ST (POCSO) Case No. 2 of 2018. 29. In the result, (1) The Criminal Petition is dismissed. (2) The Registrar General of this Court is hereby directed to issue suitable direction to all the learned Judicial Magistrate and the Chief Judicial Magistrate in the State of Manipur that if any statement under Section 164 Cr.P.C. is to be recorded as spoken by the child in the case of POCSO Act, it is to be recorded as per Section 25 of the POCSO Act, 2012. (3) The learned Special Judge (POCSO Act), Imphal East is hereby directed to give fair opportunity to the petitioner/accused to put forth his case in respect of the statement recorded under Section 164 of Cr.P.C. by the learned Judicial Magistrate from the victim child on 16.10.2017. (4) The learned Special Judge (POCSO Act), Imphal East is hereby directed to dispose of the case in ST (POCSO) Case No. 2 of 2018 within a period of four months from the date of receipt of a copy of this order by giving fair opportunity to both parties.