CRIMINAL WRIT PETITION NO. 4478 OF 2019

11th September 2019

Petitioner Counsel: Mr. Prakash Namdeo Wagh
Respondent Counsel: Mr. A. R. Patil Mr. Karansingh Bhagat singh Rajput
Act Name: Indian Penal Code, 1860 Protection of Children from Sexual Offences Act, 2012 Constitution of India, 1950

HeadLine : Constitution of India, Art. 226 – Protection of Children from Sexual Offences Act (2012), Ss. 35, 8, 12 – Penal Code (1860), Ss. 354, 354-A, 509 – Grant of permission to accused to travel abroad i.e. to his home country for 10 months – On depositing Rs. 3 Lakhs as security – Challenge – Accused was charged for offence under POCSO Act – Such permission should not be granted considering provisions of S. 35 of POCSO Act which prescribes completion of trial within 1 year – As FIR was filed in 2016 and grant of permission would defeat legislative intent and mandate of S. 35 – Further finding that present mater cannot be heard for 1 year as there are pendency of 110 cases of under trial prisoners and High Court time bound matters – Not a ground to grant permission – Order granting permission liable to be set aside.

Section :
Section 354 Indian Penal Code, 1860 Section 354-A Indian Penal Code, 1860 Section 509 Indian Penal Code, 1860 Section 8 Protection of Children from Sexual Offences Act, 2012 Section 12 Protection of Children from Sexual Offences Act, 2012 Section 29 Protection of Children from Sexual Offences Act, 2012 Section 35 Protection of Children from Sexual Offences Act, 2012

Cases Cited :
Para 7: Satish Chandra Verma Vs. Union of India and others; SLP (Civil) No.1655 of 2019
Para 7: Ateef Nasir Mulla Vs. State of Maharashtra, reported in 2018 SCC OnLine Bom 7579
Para 7: Dharmesh Doshi Vs. State and another reported in 2018 SCC OnLine Bom 10101

JUDGEMENT

1. Rule. Rule made returnable forthwith. With the consent of parties matter is heard and disposed of finally at the stage of admission.

2. This petition takes an exception to the order dated 22.08.2019 passed by the learned Special Judge, Sessions Court at Greater Bombay in Special (POCSO)Case No. 592 of 2018 in C.R. No. 169 of 2016, registered at Colaba Police Station by which order the Special Court allowed the applications below Exh. 27 and Exh. 28 filed by the original accused i.e. Respondent No. 2 herein.

3. The facts giving rise to filing of the present Writ Petition can in brief stated as under:

The offence has been registered against the original accused i.e. Respondent No.2 herein under the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”) for allegedly sexually harassing the victim girls aged 14 and 15 years. The Petitioner herein filed FIR against Respondent No.2 who is her brother in law and a citizen of U.S. under Sections 354, 354A, 509 of Indian Penal Code and Sections 8 and 12 of POCSO Act. It is the case of the Petitioner that Respondent No.2/Accused has outraged the modesty of her two minor daughters who were 14 and 15 years old. The original Accused i.e. Respondent No. 2 herein filed an Application below Exh. 27 before the learned Additional Sessions Judge for Greater Bombay seeking permission to travel his home country U.S. and Application below Exh. 28 for relaxation of bail conditions (i) Accused shall deposit his over-seas citizen card and passport, (ii) accused shall attend concerned police station on first Saturday of every month till completion of the Trial. As indicated herein above the said applications have been allowed by the Additional Sessions Judge, and the Applicant/Respondent No.2 has been allowed to leave country for ten months from 01/09/2019 to 30/06/2020 on depositing cash security of Rs.3,00,000/- in the Court. It is also directed to return the overseas citizen card and passport to the applicant/Respondent No.2 forthwith. It is the said order which is challenged by the Petitioner by way of this Writ Petition.

4. Heard the learned counsel for the parties. With their able assistance, perused the grounds taken in the Petition, annexures thereto and affidavit in reply filed by Respondent No.2. I have also perused the reasons assigned by the Special Court in the impugned order.

5. The learned counsel for the Petitioner submits that permitting the accused to travel abroad for 10 months by the impugned order is unreasonable and unwarranted. It is submitted that the accused has not produced any cogent and substantial piece of evidence to corroborate the ground cited in the application for travel. It is also submitted that if the accused is permitted to travel abroad, the accused may not return to India to attend the trial and there is every possibility of accused to be absconding. He submits that the offence has been registered in the year 2016 and so far trial is not commenced. He also submits that though the charge sheet has been filed, the learned Special Judge has not even framed the charge and kept the matter after 10 months for framing charges. The learned counsel for the Petitioner therefore prays that the Petition deserves consideration.

6. Respondent No.2/Accused has filed an affidavit in reply dated 06/09/2019 to this Writ Petition. It is stated in the said affidavit that Respondent No.2 has been visiting India quite often, and since October 2018 he is in India. In paragraph 4 of the said affidavit it is stated that when the FIR under POCSO was lodged, Respondent No.2 was very much in India and continued to stay here until execution of deed of settlement. He had visited the Colaba Police Station on multiple occasions and cooperated with the investigation. It is also stated that the police has also recorded his statement and have taken all the relevant documents on their file which he had produced. It is also stated in the said affidavit that, Respondent No.2/Accused was detected blockage in his heart which needs to be operated and for the same he can use his health insurance in USA, and if he gets operated in India, there is no one to look after him in India. It is also stated that Respondent No.2/Accused needs to pay the income tax with the revenue authorities in USA failing which he would be exposed to criminal prosecution. It is stated that Respondent No.2/Accused has already deposited Rs.3,00,000/- with the POCSO Court, Greater Bombay on 31/08/2019. It is stated that presently Respondent No.2 is a jobless. Lastly it is stated that Respondent No.2 needs to return to India in order to pursue and give evidence in the cases lodged by him against his brother and he has to provide every assistance to the Special Court.

7. Relying upon the averments made in the affidavit in reply, the learned counsel for Respondent No.2/Accused submits that, Respondent No.2/ accused is a citizen of U.S. and his health insurance has already been expired on 31/07/2019 and it has to be done in person before proper authority. It is submitted that Respondent No.2/accused held up in Mumbai for more than year and has no source of income. It is also submitted that his funds have been used for his day to day expenses and very soon he would be out of fund. The learned counsel for Respondent No.2 submits that Respondent No.2/accused has severe medical issues but due to financial problems he cannot get good treatment or can not treat himself in India. It is submitted that the Special Judge, therefore, after taking into consideration the aforesaid factors, has rightly allowed the applications of Respondent No.2/accused and permitted him to travel abroad. It is further submitted that Respondent No.2 has fundamental right to travel and the said right cannot be infringed on the ground that, if Respondent No.2 being permitted to travel abroad, he will not come back to India so as to attend the trail. In support of the aforesaid contentions, the learned counsel for Respondent No.2 sought to place reliance on the unreported judgment of the Apex Court in SLP (Civil) No.1655 of 2019 in Satish Chandra Verma v/s. Union of India and others; the judgments of this Court in the case of Ateef Nasir Mulla v/s. State of Maharashtra, reported in 2018 SCC OnLine Bom 7579 and, in the case of Dharmesh Doshi v/s. State and another reported in 2018 SCC OnLine Bom 10101. He therefore submits that this Petition does not deserve consideration.

8. The learned APP submits that the offences punishable under Section 354-A, 509 of the Indian Penal Code and Sections 8 and 12 of POCSO Act have been registered against Respondent No.2/Accused on the basis of complaint dated 17/12/2016. It is submitted that the offence is of serious nature and if the accused is allowed to leave the country, being a citizen of USA, he will not be available for trial, and then his presence cannot be secured. He, therefore, prays that permission to travel to USA granted in favour of Respondent No.2 by the learned Special Judge may be cancelled thereby setting aside the impugned order.

9. Admittedly the offence is registered under the POCSO Act with Colaba Police Station against the accused/Respondent No.2. The allegations made against Respondent No. 2 are serious in nature. It is an admitted position that Respondent No.2 is US national. There is serious apprehension in the mind of the informant that if Respondent No.2 is permitted to go to USA, he will not come back. As stated herein above, Respondent No.2 has filed application seeking permission to travel to USA for a period of two years. The learned Special Judge allowed the said application and permitted Respondent No.2/Accused to travel abroad from 01/09/2019 to 30/06/2020 on a condition to deposit cash security of Rs.3,00,000/-.

10. I have carefully perused the application filed by the Applicant/Respondent No.2 before the Trial Court. Respondent No.2 herein did not produce a single document along with the application even to substantiate his case. But the learned Special Judge observed that, since the Applicant/Respondent No.2 has no fix income, therefore he has to suffer a lot. However, the learned Judge directed the Applicant/Respondent No.2 to deposit Rs.3,00,000/- towards security, and, it is informed across the bar that the said amount has already been deposited by Respondent No.2. The learned Special Judge has also made prima facie observation, in the absence of single medical certificate on record, that Respondent No.2 is suffering from health problems. The observations made by the learned Special Judge in the impugned order that, according to the complainant also the applicant may make gestures to the victims if see on the road, are strange in the judicial proceedings, and would not appeal to the conscience of a prudent man.

11. It is pertinent to mention at this stage that, while granting permission to the accused to travel abroad, the learned Special Judge has lost sight of the provisions of Section 35 of the POCSO Act wherein it is specifically prescribed that the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. It would be apposite to re-produce the said provision for the sake of ready reference :-

“35 Period for recording of evidence of child and disposal of case :-
(1) The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court.
(2) The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of offence.”

12. Obviously the offence is registered against Respondent No.2/Accused in the year 2016. The accused filed application for discharge which came to be rejected by the Special POCSO Court by order dated 30/07/2019. While rejecting the application for discharge, the Special Judge observed that the present case is under POCSO Act and, presumption under Section 29 of POCSO Act is that the accused has to prove contrary. The Special Judge in paragraph 13 of the said order has specifically opined thus :-

“In the circumstances I am of the opinion that the accused has to put to the trial and let prosecution witnesses to lead evidence. In the light of statement of psychiatric and victim’s statement before Magistrate the accused can not be discharged.”

13. Considering provisions of Section 35 of the POCSO Act and also the fact that the FIR has been registered in the year 2016 and charge sheet has already been filed, and the Trial Court even did not bother to frame the charge, if Respondent No.2/accused is permitted to travel abroad for 10 months, it would defeat the legislative intent and mandate as reflected in Section 35 of the POCSO Act. The reason that there are pendency of 110 cases of under trial prisoners, and High Court time bound/expedite cases as also the work of bail applications assigned to the said Court, and therefore, present matter cannot be taken for hearing for at least one year, cannot be said to be a plausible reason in the eyes of law.

14. It is also required to be noted that POCSO is a special enactment and brought into force to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected thereiwthy or incidental thereto. In clause (4) of the Statement and Objects and Reasons of the POCSO Act, it is specifically provided as under :-

“(4) It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of Children from the offences of Sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trail of such offences.”

15. Considering the serious allegations levelled against the accused i.e. Respondent No.2 herein and, the offence is registered under POCSO Act, the Special Court ought to have taken into considering the mandate of Section 35 of the POCSO Act. It is important to mention that the right to speedy trial is held as fundamental right of the accused under Article 21 of the Constitution of India. Therefore Respondent No.2 shall get an opportunity at the earliest to prove his innocence. At the same time, the prosecution must also get an opportunity to prove its case at the earliest. In the light of discussion herein above, the observations made by the learned Special Judge that, matter cannot be taken for hearing for at least one year, would run contrary to the object of bringing Special Legislation into force, so also mandate of Section 35 of the POCSO Act, and the judgment of the Hon’ble Supreme Court taking a view that the right to speedy trial is a fundamental right of the accused.

16. Now coming to the judgments cited (supra) by the learned counsel for Respondent No.2, it clearly reveals that, the facts of the said cases are different than the facts of the present case. The Petitioners in those cases appears to be Indian national and having permanent abode in India.

17. In the light of the discussions made herein above, the impugned order dated 22/08/2019 passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Gr. Mumbai is required to be quashed and set aside. Hence the following order :-

i] The Writ Petition is allowed in terms of prayer clause ‘a’, impugned order dated 22nd August, 2019 passed by the Special Pocso Judge, Sessions Court at Greater Bombay in Special Pocso Case No. 592 of 2018 in C.R. No. 169 of 2016 is quashed and set aside. Rule is made absolute in aforesaid terms.
ii] However, liberty is granted to the second Respondent to apply for permission to go abroad after framing the charge by the concern court.
iii] The learned Special POCSO Judge, Sessions Court, Greater Bombay is hereby directed to adhere to the provisions mentioned in Section 35 of the POCSO Act. The learned Special POCSO Judge shall endeavour to frame the charge within three weeks from today and shall conclude the trial within the period prescribed in the said Section 35 of the POCSO Act.
iv] Respondent No.2/Accused to appear before the Special POCSO Judge, Sessions Court, Greater Bombay on 20th September 2019.
v] Writ Petition stands disposed of accordingly.

Petition allowed.