The Court made the observation while setting aside a High Court order that had held that the penetrative sexual assault of a minor girl below 12 years of age was not aggravated penetrative sexual assault.
The Supreme Court on Wednesday said that courts do not have the discretion to reduce the minimum sentences imposed for offences, including for aggravated sexual assault, under the Protection of Children from Sexual Offences Act (POCSO Act). [State of Uttar Pradesh v. Sonu Kushwaha]
When a penal provision expressly prescribes a minimum sentence, courts cannot do offence to such a Section and impose a lesser sentence, the apex court held.
A bench of Justices Abhay S Oka and Rajesh Bindal further emphasised that the POCSO Act was enacted to provide for stringent minimum punishments for various kinds of child sexual abuse.
In particular, Section 6 of the POCSO Act, which describes the punishment for aggravated penetrative sexual assault leaves no option for the court but to impose the minimum sentence, the bench added.
"When a penal provision uses the phraseology ‘shall not be less than…’, the Courts cannot do offence to the Section and impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence,” the order stated.
The Court also elaborated on why harsh sentences were warranted in such cases. Referring to the present case, which involved the rape of a child who was less than 12 years old at the time, the Court observed,
"The impact of the obnoxious act on the mind of the victim-child will be life-long. The impact is bound to adversely affect the healthy growth of the victim.”
Hence, the Court held that there is no question of showing any leniency to the convict, even if he had "moved ahead in life" after undergoing the modified sentence imposed by the High Court.
"Apart from the fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment," the Court added.
The Court, therefore, restored a trial court conviction in the matter, which carried a 10-year jail term for the offence of aggravated penetrative sexual assault.
Earlier, the Allahabad High Court had reduced the conviction from aggravated penetrative sexual assault to penetrative sexual assault, which only carried a 7-year sentence.
Such a modification was despite the fact that the victim was less than 12 years old.
Section 5 (m) of the POCSO Act lays down that penetrative sexual assault on a child who is less than 12 years old would amount to an aggravated version of the crime.
The Uttar Pradesh government filed an appeal before the Supreme Court, which has now been allowed by the top court.
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The Supreme Court opined that the High Court's failure to discern that the offence was an aggravated one was ‘an obvious error’ that was ‘surprising.’
The Court proceeded to direct the convict to surrender within a month, failing which the special POCSO court was ordered to issue a non-bailable warrant against him.
Advocates Krishnanand Pandeya and Harsh Pratap Shahi appeared for the State. Advocate Satish Pandey appeared for the respondent.
Supreme Court gives life term to four in 1996 Lajpat Nagar blast; says delay by trial court, prosecution compromised national interest
The Supreme Court on Thursday took exception to the lack of promptness and attention shown by investigating agencies and the trial court in the conduct of criminal proceedings against accused in the 1996 Lajpat Nagar blast in Delhi. [Mohd. Naushad v. State (Govt of NCT of Delhi)]
A Bench of Justices BR Gavai, Vikram Nath and Sanjay Karol underscored that the matter ought to have been treated with urgency and sensitivity to avoid the resultant compromise of national security.
"The record reveals it is only on the prodding on the part of the judiciary that the trial could be completed after more than a decade. The delay, be it for whatever reason, attributable to the judge incharge or the prosecution, has certainly compromised national interest. Expeditious trial of such cases is the need of the hour, especially when it concerns national security and the common man. Regrettably, enough vigilance was not displayed by the investigating as well as the judicial authorities," the judgment said.
The Court noted that it appeared that influential persons influenced proceedings, given the number of accused versus those who actually were put on trial. Pertinently, the Bench said that accused whose acquittals/reduced sentences were not a part of the instant batch of appeals, also prime facie seemed involved in the conspiracy behind the blast.
"We also note that the accused persons who have not faced trial or those against whom the State has not preferred an appeal, prima facie, seem to be a part of this conspiracy. However, since they are not before us, we refrain from delving into evidence against those persons."
The observations came in a verdict that modified the sentences/conviction status of four accused in the case - Mohd Naushad, Mirza Nissar Hussain, Mohammed Ali Bhatt and Javed Ali Khan.
The Delhi High Court had in 2012 commuted Naushad’s death sentence, upheld Javed’s death sentence, and acquitted the other two, who had been on death row at the time.
In a detailed judgment that looked at the validity of each piece of evidence presented by the prosecution, the Court concluded that the role of the four accused in the conspiracy was clearly made out.
Hence, the Court proceeded to convict all the four accused.
The death sentence of Javed was commuted to life imprisonment.
The other three were also handed down life terms.
Given the gravity of the offence, the top court directed that all the life sentences run without any scope for remission.
"In view of the severity of the offence resulting in deaths of innocent persons and the role played by each accused person, all these accused persons are sentenced to imprisonment for life, without remission, extending to natural life. Accused, if on bail, are directed to immediately surrender before the Court concerned and their bail bonds stand cancelled," the judgment stated.
The blast occurred in the market area of the South-East Delhi locality, killing 13 and injuring 39 persons. The Delhi Police’s probe had revealed that six members of the Jammu & Kashmir Liberation Front were responsible.
Senior Advocate Siddhartha Dave and Advocate Kamini Jaiswal appeared for the accused. Additional Solicitor General Sanjay Jain appeared for the respondents.
Delhi court issues summons to Rajasthan CM Ashok Gehlot in defamation case by Union Minister Gajendra Singh Shekhawat
A Delhi court on Thursday issued summons to Rajasthan Chief Minister Ashok Gehlot in a criminal defamation case filed by Union Jal Shakti Minister Gajendra Singh Shekhawat.
Additional Chief Metropolitan Magistrate Harjeet Singh Jaspal of Rouse Avenue Court ordered Gehlot to appear before the Court on August 7.
A detailed order is awaited.
Shekhawat filed the criminal defamation suit against Gehlot after the latter allegedly made a statement regarding the former's alleged involvement in the Sanjeevani scam.
Shekhawat has alleged in his plea that Gehlot made the defamatory allegations in February, 2023 after meeting some people who lost their investment in Sanjeevani. These aggrieved people had alleged that Shekhawat was involved in the scam.
It is Shekhawat's case that Gehlot was speaking to the media where he named the Jal Shakti minister and asked how such people become ministers in the Modi government.
The very next day, Shekhawat held a press-conference where he refuted the allegations.
On March 24, 2023, the Court had ordered Delhi Police to investigate whether or not Gehlot actually said that Shekhawat is an accused in the scam.
A report was then filed by the Delhi Police and Shekhawat's counsel argued that all the questions put by the court have been answered in the affirmative in the report.
A Delhi court on Thursday issued summons to Rajasthan Chief Minister Ashok Gehlot in a criminal defamation case filed by Union Jal Shakti Minister Gajendra Singh Shekhawat. Additional Chief Metropolitan Magistrate Harjeet Singh Jaspal of Rouse Avenue Court ordered Gehlot to appear before the Court on August 7.
Additional chief metropolitan magistrate Harjeet Singh Jaspal of Rouse Avenue Court ordered Gehlot to appear before the court on August 7.
The Union minister filed a criminal defamation complaint against Gehlot on March 4 alleging that the latter called him and his deceased mother “an accused” in the ₹ 900 crore Sanjivani Credit Cooperative Society scam, and that “false, uncalled, derogatory and defamatory statements have been made with the aim to tarnish his image in the eyes of the general public, the voters and his kith and kin, with the object of gaining an undue political mileage”.
“Having considered the facts and circumstances, the testimonies of the complainant witnesses, the evidence placed on record, it prima facie appears that the accused has made specific defamatory statements against the complaint. Further, … it appears that the aforesaid defamatory statements of the accused have been sufficiently published in the newspaper electronic media/social media, which may make the right thinking members of the society shun the complainant,” the additional chief metropolitan magistrate said in his order.
Justice AK Goel retires as NGT Chief; says climate change serious threat to humanity
In a farewell message on his retirement day as Chief of the National Green Tribunal (NGT), Justice AK Goel emphasized the gravity of climate change and environmental degradation as existential threats to humanity.
He acknowledged the ongoing efforts of countries worldwide in mitigating these challenges since the Stockholm Conference in 1972 and the more recent Paris Agreement of 2015. However, Justice Goel stressed that despite the enactment of robust environmental laws and significant judicial orders, enforcement remains a major challenge.
"Anthropogenic climate change and environmental degradation is one of most serious existential threats to Humanity today. In the wake of Stockholm Conference on 5th June 1972, and more recently the 2015 Paris Agreement, countries have undertaken continuous measures to mitigate this challenge but, much remains to be done," he said.
The NGT, being a statutory tribunal, holds the responsibility of determining substantial legal questions related to the environment and issuing directions for environmental protection and compensation to affected victims. It is guided by the principle of sustainable development.
Justice Goel acknowledged that one of the main challenges for the NGT is enforcement. He underlined the importance of awareness and initiatives at all levels, emphasizing the need for coordinated efforts between citizens and the State in achieving ultimate compliance.
He opined that bridging the gap between the law and its enforcement should be an ongoing endeavor of the judicial process.
Justice Goel expressed his hope that the movement for the protection of the environment will continue to gain momentum with increasing vigor in the future.
Justice Goel was appointed as Chairperson of the NGT on July 6, 2018. He is a former judge of the Supreme Court of India. He is also former Chief Justice of the Orissa High Court and Gauhati High Court, and a former judge of the Gauhati High Court and Punjab and Haryana High Court.
In the last five years, under Justice Goel, the NGT received 15,132 new cases and disposed of 16,042 cases. Out of 16,042, Justice Goel's bench disposed of 8,419 cases.
Further, the NGT took suo motu proceedings in a total of 351 cases relating to river pollution, 100 cases concerning polluted industrial areas, and 143 cases addressing cities with air pollution.
During this period, one the major intervention by NGT was in respect of monitoring gaps in solid and liquid waste management for which three rounds of interaction were held with the Chief Secretaries of all the States and Union Territories.
Based on data furnished by the Chief Secretaries, compensation of ₹79,234.36 crores was determined for damage to environment on account of acknowledged gaps in waste management discharge to the extent of 26,000 MLD (liquid waste) and 56,000 TPD (solid waste), and 18 crore tonnes of legacy waste.
This amount has been required to be kept in ring fenced account for restoration measures as per action plans to be overseen by the Chief Secretaries and further report being considered by the NGT.
Delhi High Court flags disturbing pattern of rape accused marrying survivor to avoid sexual assault charges
The Delhi High Court recently expressed concern over a disturbing pattern noticed in sexual assault cases, where an accused marries the survivor, seemingly to evade criminal charges, only to promptly abandon the survivor once the case is quashed or bail is secured. [Mohd Amaan Malik v State]
The Court was hearing a plea to quash a first information report (FIR) lodged by the Delhi Police in 2021 for rape and other offences under the Indian Penal Code (IPC) as well as Section 6 of Protection of Children from Sexual Offences Act (POCSO Act).
Justice Swarana Kanta Sharma refused to quash the FIR after noting that there were a number of cases where the accused heartlessly deserted the survivor after evading a criminal case by marrying her.
"Shockingly, numerous cases have come to light where the accused deceitfully enters into a marriage under the guise of willingness, particularly when the victim becomes pregnant as a result of the assault and subsequent DNA testing confirms the accused as the biological father, and even after solemnization of marriage and subsequent immunity from criminal prosecution, the accused heartlessly deserts the victim within a few months," the Court said.
The Court also noted that, in this case, societal pressure may have led to the marriage of the survivor and the accused.
"Due to social pressure which exists in many societies including India as the victim had become pregnant, the mother of victim had given in to the pressure of the accused to get her daughter married to him as he was the biological father of the child," the Court's order stated.
The present case involved allegations that a 20-year-old (accused) had raped a 17-year-old girl, who he is stated to have married later after she became pregnant.
The two were stated to have met at tuition classes. The survivor-girl claimed that the the accused provided her with alcohol and engaged in non-consensual sexual intercourse with her at a guest house.
The prosecution further alleged that the accused resorted to blackmail and threatened to share inappropriate photographs of the survivor on social media. Using such threats, he was alleged to have forcefully engaged the victim in sexual acts multiple times.
In April 2021, the survivor discovered she was pregnant and informed her mother, who contacted the accused.
The accused, in response, is alleged to have threatened both the survivor and her mother. He also allegedly coerced them into signing marriage documents, following which he began living with the survivor in a rented place.
However, the accused is stated to have beaten and abused the survivor after the marriage and also pressurised her to get an abortion.
After an FIR was filed, the pregnancy was terminated, the Court was told.
Subsequently, the accused approached the High Court to quash the FIR.
The counsel for petitioner (accused) argued that it was a case of a love affair and that there was a consensual relationship between the parties. The parties had married to each other out of their own will, and the family of the survivor was in constant touch with the accused, the Court was further told.
It was also contended that since both the parties were Muslims, they are governed by Muslim personal law. As per Muslim law, a marriage between the two parties is valid since the girl has already attained the age of 15 years, the Court was told.
The Court, in turn, noted that the issue of whether a Muslim girl attaining 15 years of age would be governed by the provisions of the POCSO Act or not, is pending for consideration before the Supreme Court.
However, since the alleged sexual abuse was stated have started before the marriage, the High Court said that it is not going into the aspect of whether the marriage was valid.
"In any case, in the present case, the allegations of rape are not after the marriage but before the marriage between the parties, and this Court is not going into the aspect of the validity of marriage of the present petitioner with the victim," the Court's order stated.
The State government also opposed the petitioner's plea, contending that the survivor had supported the allegations of sexual assault in her statement before the magistrate.
Further, the Court also noted that the survivor had also denied giving consent for sexual relations with the accused.
The Court added that even if the survivor, who was a minor at the time of the alleged offence, had said that she had given consent, the rape case against the accused cannot be quashed since "the consent of a minor was of no consequence for the purpose of sexual relationship."
The Court proceeded to dismiss the case after opining that a prima facie case had been made out against the petitioner.
The petitioner was represented by advocates Ankit Rana, Rahul Sand and Sudhir Kumar. The State was represented by advocate Manoj Pant.
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