2019 NearLaw (BombayHC Nagpur) Online 1943
Bombay High Court

JUSTICE ROHIT B. DEO

Dr. Maroti s/o Kashinath Pimpalkar Vs. State of Maharashtra & Anr.

CRIMINAL APPEAL NO. 469 OF 2019

16th July 2019

Petitioner Counsel: Shri Anil Mardikar Shri S. G. Joshi
Respondent Counsel: Shri N. B. Jawade
Act Name: Indian Penal Code, 1860 Code of Criminal Procedure, 1973 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 Protection of Children from Sexual Offences Act, 2012

The offence registered is under the provisions of Section 376-A and B of the Indian Penal Code read with Sections 4 and 6 of the Protection of Children from Sexual Offences Act (POCSO Act) and Sections 3(1)(w),3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (Atrocities Act).
However, the limited role which is attributed to the appellant-Medical Practitioner in the report and in the written submissions filed on record on behalf of the prosecution before the learned Sessions Judge is that the complainant did not disclose or report the commission of offence punishable under Section 21 of the POCSO Act.
However, the learned Sessions Judge was persuaded to reject the anticipatory bail on an assumption that in the statement dated 27-4-2019 recorded under Section 164 of the Code one child victim had accused the appellant-Medical Practitioner of sexually abusing her during the medical examination.
When this appeal was argued on the last date of hearing, the learned Senior Counsel Shri Anil Mardikar was at pains to assert that the observation of the learned Sessions Judge is patently erroneous and no child has accused the appellant-Medical Practitioner of sexual misconduct.
The State has filed an affidavit dated 10-7-2019 confirming that no child victim has accused the appellant-Medical Practitioner of sexual misconduct.
In the teeth of the affidavit-in-response, it is obvious that the learned Sessions Court erred in assuming that the appellant-Medical Practitioner was accused by a child victim of sexual misconduct.
In so far as the offence under the provisions of the Atrocities Act, even if the entire material is taken at face value, no offence is made out, at least prima facie, against the appellant-Medical Practitioner.
The appeal is allowed in the afore stated terms.

Section :
Section 164 Indian Penal Code, 1860 Section 376-A Indian Penal Code, 1860 Section 376-B Indian Penal Code, 1860 Section 438 Code of Criminal Procedure, 1973 Section 3(1)(w) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 4 Protection of Children from Sexual Offences Act, 2012 Section 6 Protection of Children from Sexual Offences Act, 2012 Section 21 Protection of Children from Sexual Offences Act, 2012

Cases Cited :

JUDGEMENT

This appeal is directed against the order dated 2562019 rendered by the learned Additional Sessions Judge, Chandrapur in Miscellaneous Criminal Application 670/2019 whereby the application preferred by the appellant under Section 438 of the Criminal Procedure Code, 1973 (Code) is rejected.

2. The appellant is a Medical Practitioner, aged 72 years.

3. The offence registered is under the provisions of Section 376-A and B of the Indian Penal Code read with Sections 4 and 6 of the Protection of Children from Sexual Offences Act (POCSO Act) and Sections 3(1)(w),3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (Atrocities Act).

4. However, the limited role which is attributed to the appellant-Medical Practitioner in the report and in the written submissions filed on record on behalf of the prosecution before the learned Sessions Judge is that the complainant did not disclose or report the commission of offence punishable under Section 21 of the POCSO Act.

5. However, the learned Sessions Judge was persuaded to reject the anticipatory bail on an assumption that in the statement dated 27-4-2019 recorded under Section 164 of the Code one child victim had accused the appellant-Medical Practitioner of sexually abusing her during the medical examination.

6. When this appeal was argued on the last date of hearing, the learned Senior Counsel Shri Anil Mardikar was at pains to assert that the observation of the learned Sessions Judge is patently erroneous and no child has accused the appellant-Medical Practitioner of sexual misconduct. In view of the assertion, this Court protected the appellant-Medical Practitioner.

7. The State has filed an affidavit dated 10-7-2019 confirming that no child victim has accused the appellant-Medical Practitioner of sexual misconduct. In the teeth of the affidavit-in-response, it is obvious that the learned Sessions Court erred in assuming that the appellant-Medical Practitioner was accused by a child victim of sexual misconduct.

8. In so far as the offence under the provisions of the Atrocities Act, even if the entire material is taken at face value, no offence is made out, at least prima facie, against the appellant-Medical Practitioner.

9. The order impugned is clearly unsustainable and is set aside. The interim order dated 09-7-2019 is confirmed.

10. The appeal is allowed in the afore stated terms.