HC Ignored POCSO's 'Mandatory Reporting' Clause While Suspending Accused's Punishment

After a 17-year-old Dalit girl was raped and then died by suicide, two accused were convicted for trying to cover up the crime. Now, the Rajasthan high court has said they were trying to “protect the girl’s reputation”.

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Mumbai: Disregarding one of the most crucial provisions of “mandatory reporting” of cases of child sexual abuses under the Protection of Children from Sexual Offences (POCSO) Act, the Jodhpur bench of the Rajasthan high court has suspended the sentence pending appeal of two school staff members held guilty for pushing a 17-year-old Dalit girl to end her life by suicide.

While the prime accused Vijendra Singh was held guilty of raping the girl and abetment of suicide, the other two convicted persons – Pragya Prateek Shukla and his wife Priya Prateek Shukla – were also held guilty of refusing to report the sexual assault to the police and worse, shaming the victim girl and forcing her to sign a “confession letter”. But the division bench of Justices Sandeep Mehta and Vinod Kumar Bharwani has termed Pragya Prateek and Priya’s act of wilful cover-up as a “common” practice followed to “protect the girl’s reputation”. Pragya Prateek and Priya’s sentence was suspended as prescribed under Section 389 of the Code of Criminal Procedure and the couple has been released on bail.

The court, while suspending Pragya Prateek and Priya’s sentence of six years, has observed, “Incidents (as this) are not uncommon where after deliberations, it is decided in a bonafide manner not to report such matters to the police, lest the reputation of the girl is tarnished. This aspect gains more importance because the hostel warden/higher ups would definitely have preferred to deliberate with the parents of the girl before taking any such action.”

The “bonafide” act, here, as presumed by the high court, is of wilfully not reporting the crime to the police. Non- reporting of a sexual assault on a child is a punishable offence under Section 21 of the POCSO Act. Most importantly, the Act does not require any deliberations or consent of parents before the matter is reported to the police. Also, the high court, while focusing on the “reputation” of the child, has completely overlooked her vulnerability, the power that the offenders exerted on her and the state that she was left to be in alone around those who had criminally wronged her.

With this order, the high court has not just overlooked a crucial provision of the law but also undone the six long years of efforts towards ensuring justice for the ambitious young Dalit girl from the remote Trimohi village on the Indo-Pak border, who was raped and eventually pushed to end her life by the staff of the Jain Adarsh Kanya school in Bikaner where she was pursuing teacher training.

Securing a conviction in the case was not easy. Being a Dalit girl studying in an institute run by the Savarnas, far away from her hometown, had rendered her vulnerable. Singh, her rapist, belongs to the dominant Jat community; the Shuklas are Brahmins. The institute staff were supposed to be her guardians while away from home. She was dependent on them for her wellbeing and protection.

Also read: To Tackle Rising Cases of Child Sex Abuse, the NCRB Must Address Gaps in POCSO Data

The case dates back to March 30, 2016, two days after the 17 year old was raped. She had returned to her campus following a Holi festival break on March 28. Her father had dropped her at the campus around 11 am. In his complaint, her father says he received a call around 8 pm from his daughter where she complained that Priya Shukla, the warden of the hostel, had sent her to Singh’s room under the pretext of cleaning it, and Singh had raped the girl at that time. She was allegedly threatened by Singh and was warned of dire consequences if she said anything to anyone. Her father, who lived over 400 km away on the Indo-Pak border, had asked his daughter to return home the next morning.

But on March 29, her body was found in the overhead water tank. The college, however, did not contact her father. He was informed by the police about his daughter’s death.

Later, during the investigation, a supposed confession letter surfaced. The 17 year old, in the letter, which she was made to sign at 3 am, is supposed to have written that “she committed a mistake that can’t be forgiven”. This letter holds a lot of significance in determining the role played by Pragya Prateek and Priya, who instead of reporting the incident to the police had chosen to make the girl write and sign on a paper.

The special sessions court in October last year took into consideration all these factors and convicted Singh and the Shuklas for their roles. The lower court held this as a caste crime and found them all guilty under the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.

The fiduciary relations that the victim and the convicted offenders share should be taken into consideration while adjudicating cases of sexual abuse. However, it was overlooked by the high court while suspending the sentence pending appeal.

The Rajasthan state had appointed a senior criminal lawyer, Jagmal Singh Choudhary, as a special public prosecutor to handle the case in the high court. But strangely, when the case came up for hearing, Choudhary declined to argue first and instead asked the victim’s family’s lawyer, Disha Wadekar, to present her case first. Wadekar, a Supreme Court lawyer who has also represented the victim’s family in the trial court, touched upon the gravity of the crime that the Shuklas’ were convicted of and also emphasised the attempts made by them to cover up the crime. Choudhary simply “adopted” her argument. When the state appoints a special public prosecutor to handle a particular case, the fees paid to the lawyer runs into several thousands per appearance. Choudhary, a representative of the state in the case, made no effort to convince the court against the suspension of the sentence or their subsequent release on bail.

The Shuklas have spent only a few months in jail. In 2016, they were released within a few days of their arrest. The high court, then presided by Justice Sandeep Mehta (one of the division benches judges who suspended the quantum of punishment), had focused on the girl’s phone record and claimed that since there were a few outgoing calls made from her phone to Singh, it was “indicative of the circumstances” that rose on the day she was raped.

Also read: Loans, Debt, Land Sold: A Father’s Fight To Get Justice for Daughter Who Was Raped

Child rights activists and lawyers say such observations by the higher judiciary are concerning and they undo the progress made in building the jurisprudence concerning children’s rights. Persis Sidhva, a leading child rights lawyer in Mumbai, dissects the reasons considered while suspending the sentence and says, “The high court just to suspend the convicted persons’ sentence has gone way beyond the scope of the law and is in fact contradicting the provisions of law to accommodate the defence’s petition.”

“The purpose of the Act and especially the provision relating to mandatory reporting was to ensure reporting of child sexual abuse cases and not brush them under the carpet under the guise of “tarnishing reputation” and “parents’ consent”,” she points. The fact that high court judges believe that a “child’s reputation will be tarnished” if she is found with a teacher in a room with the door bolted, just “exposes their regressive and misogynistic mindset”, Sidhva adds.

The girl’s father, a school teacher in Barmer, plans to approach the Supreme Court, through his pro-bono lawyer Wadekar, against the high court order. The past year’s struggle has been an isolating one for him. He says he was abandoned by many rights activists and lawyers who initially promised to support him in his quest for justice but later distanced themselves. He has had to spend his life’s savings in fighting the case. The girl’s father knows the legal fight will continue for many years. He has begun an online campaign to raise funds to take care of the legal expenses.