Tuesday, November 5, 2013

When a Father was ‘Falsely Implicated’ on the Charge of ‘Raping’ his ‘Own Daughter’

That the relation between a daughter and her father is sacrosanct needs no reiteration. Unfortunately, when the society reaches an extreme level of depravity, even this relation is not left from being wrongly used. It is very difficult to think that a mother, in order to satisfy her personal wants, can falsely implicate her ex-husband on the charge of raping ‘their’ own daughter. But, this was what happened in a case which has recently been decided by the Delhi High Court (“High Court”). In Atendar Yadav v. State Govt of NCT of Delhi [judgment dated 29th October, 2013], the appellant, Atendar Yadav, had challenged the order of trial court in which he was convicted him for committing an offence under section 376(2)(f) of the Indian Penal Code, 1860 (“IPC”). The appellant was convicted by the trail court on charge of raping of no one else but his own daughter.

In May, 2007, it so happened that a complaint was filed against the appellant on the charge that he had raped his daughter, the Prosecutrix, in November and December 2006. The complaint was made after the mother of the Prosecutrix, Geeta Anand, became aware of the incident. While the story of the prosecution was appreciated by the trial court, the High Court was not very much convinced with the same. In fact, the High Court considered this to be a case of false implication. Before I go into the crux of the case, let me highlight its factual background.

Due to poor marital relations between them, Geeta Anand and the appellant had agreed to divorce through mutual consent in February 2007. While the custody of children (Prosecutrix and her younger brother) was given to the appellant, Geeta was granted visitation rights. Prior to the divorce, both Geeta Anand and the appellant had filed several cases against each other (Maintenance, Kidnapping, Domestic Violence etc.). Immediately after the divorce, appellant married another woman. When Geeta Anand became aware of this fact, she was baffled.  She was also not satisfied when, under the settlement, she had agreed to withdraw the all the cases in return of Rs. 1 Lac.

According to Geeta Anand, she was informed by the Prosecutrix of the incident when she had gone to meet the latter at the house of appellant’s parents. Highlighting the pervert behaviour of the appellant, she opined as to how he used to watch blue movies at home. In her testimony before the court, Geeta Anand stated that she became aware of the menstruation period of the Prosecutrix and, according to her, the same started after the rape. On knowing this, she was perplexed as by that time her daughter was only 9 years old. However, in her cross-examination, she had admitted to have told the appellant to take care of the Prosecutrix when she is on periods in September 2006. This was only one of the contradictory evidences given by her.

Monday, November 4, 2013

Quest for a World free of Child Marriages

Recently, India invited the wrath of the international community as well as that of the domestic civil rights bodies when it refused to co-sponsor a United Nations Human Rights Council (UNHRC) resolution recognising child, early and forced marriage. Although the resolution was unanimously adopted with India's support, India refused to join over 100 countries in co-sponsoring the resolution. Perhaps, the harsh realization of the magnitude of commitment required to free herself of this diabolical social evil made her adopt such stance.

It is nevertheless ironical as India continues to be the country with the highest number of child brides. While there exists statues to curb the evil (Prohibition of Child Marriages Act), certain sections of the society such as the Khap Panchayats and certain Islamic religious bodies continue to endorse the practice. As law is rendered toothless without social sanction it is important to analyse the sociological perspective behind early marriages. I came across this wonderfully written editorial in Economic & Political Weekly that seeks to analyse the unfortunately widely prevalent nefarious practice in the Indian society and urges the administrators to be more pro-active in curbing it.

Friday, November 1, 2013

Section 50 of the NDPS Act, 1985 Should not be Ignored While Conducting a Search

In a decision concerning the interpretation of section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”), it has been held by the Supreme Court of India (“Supreme Court”) that the provision should not be dealt by the courts in a lightly manner. Section 50 of the NDPS Act provides for the search to be conducted in the presence of a Gazetted Officer or a Magistrate. In the present case, it was contended by the appellant, Gurjan Singh, that the search of the impugned gunny bags was not conducted in the presence of a Gazetted Officer. Rather, it was conducted in the presence of an ‘acting DPS’, who cannot be equated with a Gazetted Officer. In this post, I am highlighted the important facts, contentions and findings of the court.

Facts: On 04.04.1996, after catching the appellant with some suspected gunny bags in a tractor, S.I. Darbara Singh (P.W. 6) informed the appellant of his intention to check the bags. P.W. 6 also told the appellant if the latter wants, the search could be conducted in front a Gazetted Officer. When the appellant consented for search in front of a Gazetted Officer, Baldev Singh (P.W. 3), acting DSP, was called. In front of Baldev Singh, the search was conducted and poppy husk was recovered from the gunny bags. Accordingly, proceedings were initiated against the appellant.

Before the trial court, it was contended on behalf of the appellant that there was clear violation of Sections 42 and 50 of the NDPS Act, in as much as, the search was not conducted in the presence of a Gazetted officer or a Magistrate. According to the appellant, P.W. 3 was not a Gazetted Officer since as he was as not a regularly promoted D.S.P. but was only an Inspector in the category of Own Rank Pay. Rejecting this, trail court held that there was no need to comply with section 50 of the NDPS Act. The appellant was therefore found guilty by the trial court. [Reliance was placed on State of Punjab vs. Balbir Singh, (1994) 3 SCC 299]. On appeal, the decision of the trail court was confirmed by the High Court.