List of Current Affairs

Source: Karnataka High Court

Why in News?

Recently, the Karnataka High Court showed concern over the emerging trend of malicious parent syndrome and said that it's unfortunate that the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) which are meant to protect the child from abuse are being misused by a protagonist of the crime.

What was the Background of this Case?

• In this case, the respondent is the complainant.
• The respondent and Smt. Shruthi Cauvery Iyer got married on 26^th April 2007 and a daughter was born from the wedlock.
• On the grounds that the relationship between the respondent and the mother of the child turned sore, it ended up in a divorce and the child's custody was to remain with the mother.
• Thereafter, the respondent filed a case before the Family Court seeking custody of the child.
• The mother filed an execution petition seeking restoration of custody of her daughter.
• Thereafter, the respondent filed a complaint against the present petitioner, who is the third husband of the mother of the child under Sections 11 & 12 of POCSO Act.
• The petitioner argued that the complainant was using the child to settle his scores. He pointed there was no whisper of any offence being alleged under the POCSO Act
• The respondent opposed the plea citing Section 29 of the POCSO Act which raises a presumption against the accused.
• Thereafter, a present petition has been filed before the High Court of Karnataka which was later allowed by the Court.

What were the Court’s Observations?

• A single judge bench of Justice M Nagaprasanna observed that an innocent child is being used by the respondent, ex-husband of the mother of the child to settle scores against the mother and the present petitioner. Further proceedings, if permitted to continue against the present petitioner, would be permitting a classic illustration of abuse of the process of law by the respondent. The innocence of the child is tampered with; her emotions are being used and abused by a warring parent. It is for this reason that when the parents begin to wrangle, who is at pain is the child.
• The Court further states that it is unfortunate that the provisions of the POCSO Act which are meant to protect the child from abuse are being misused by a protagonist of the crime in the case at hand.
• The Court showed concern over the malicious parent syndrome whereby a malicious parent engages in attempts to punish the other parent by separating the child, denying child visitation and lying to children.

What are the Relevant Legal Provisions?

POCSO Act 2012

About:

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• It provides for the establishment of Special Courts for trial of such offences and related matters and incidents.
• Death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault was introduced in this act by the POCSO Amendment Act, 2019.
• Section 4 of this Act prescribes punishment for penetrative sexual assault.
• Under Section 2(1) (d) of this Act, a child is defined as any person below the age of 18 years.

Section 11 of POCSO Act:

• Section 11 of this Act deals with the Sexual harassment.
• It states that a person is said to commit sexual harassment upon a child when such person with sexual intent, —

(i) Utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child; or

(ii) Makes a child exhibit his body or any part of his body so as it is seen by such person or any other person; or

(iii) Shows any object to a child in any form or media for pornographic purposes; or

(iv) Repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(v) Threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act; or

(vi) Entices a child for pornographic purposes or gives gratification therefor.

Section 12 of POCSO Act:

• This section deals with the punishment for sexual harassment.
• It states that whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

Section 29 of POCSO Act:

• This Section deals with the presumption as to certain offences.
• It states that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

Source: Supreme Court

Why in News?

Recently, the Supreme Court in the matter of Sunder Lal v. The State of Uttar Pradesh & Anr., has held that a witness can be summoned as a defence witness who was shown in the Prosecution list but not examined by prosecution.

What was the Background of Sunder Lal v. The State of Uttar Pradesh & Anr. Case?

• In this case, the appellant was married, and his wife(deceased) consumed a poisonous substance of her own accord and died by suicide.
• Thereafter, a complaint was filed by the deceased's relatives, alleging that the appellant and his relatives used to harass the deceased over non-fulfillment of demand for dowry and cremated her body without informing the complainant-relatives.
• The charge-sheet was filed under Sections 304B and 498A of the Indian Penal Code, 1860 (IPC) and Sections 3 and 4 of the Dowry Prohibition Act, 1961.
• The deceased's brother Pradeep was mentioned as a prosecution witness.
• However, during the trial, Pradeep was discharged by the prosecution without being examined.
• After prosecution evidence was closed and statement of the accused under Section 313 of the Criminal Procedure Code, 1973 (CrPC) was recorded.
• The appellant moved an application under Section 233 of CrPC seeking to summon Pradeep.
• The Trial Court dismissed the appellant’s application and even the High Court of Allahabad dismissed the appellant’s prayer.
• Thereafter, the appellant filed an appeal before the Supreme Court which was later allowed by the Court.

What were the Court’s Observations?

• The Bench of Justices MM Sundresh and SVN Bhatti observed that both the Courts are wrong in declining the request of the appellant, as factually, the witness sought to be examined on the side of the defence has not been examined by the prosecution.
• It was also stated that the prosecution has consequentially chosen to discharge the said witness and, therefore, he has not been put in the witness box to depose on behalf of the prosecution. In such view of the matter, there is no bar in the law for examining the said witness as defence witness. The appellant is permitted to examine the prosecution witness as defence witness.

What are the Relevant Legal Provisions Involved in it?

Section 313 of CrPC

About:

• Section 313 of CrPC deals with the power to examine the accused. It states that—

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—

(a) May at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) Shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case.

Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

Case Law

• In Rafiq Ahammad @ Rafi v. State of Uttar Pradesh (2011), the Supreme Court held that the statement u/sec.313 of CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the Courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events.

Section 233 of CrPC

About:

• Section of 233 CrPC finds place under Chapter XVIII titled as 'trial before a court of session'.
• This section deals with entering upon defence whereas the same provision has been covered under Section 256 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS).
• It states that-

(1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

• This provision is an essential part of session trial and is applicable when the prosecution evidence is complete, and the accused is given an opportunity to produce the evidence in its defence.

Case Law

• In H. Kala Singh v. State of Meghalaya (2008), it was held that the purpose of Section 233 of CrPC is to ensure that the accused is given an adequate opportunity to defend themselves effectively and to ensure a fair trial. It allows the accused to produce any evidence or witnesses in their defence.