Before POCSO:-

Gurcharan Singh vs State Of Haryana on 13 September, 1972

A girl under 16 years was ‘forcibly taken by the accused to his fields,outside the village where he committed rape on her. The court ruled that mere absence of marks of violence on the victim is immaterial because she was under 16 years of age. More importantly, it ruled that the victim cannot be considered as an accomplice to the act.

Mathura Rape Case (Tuka Ram And Anr vs State Of Maharashtra on 15 September, 1978)

The Mathura rape case was an incident of custodial rape in India on 26 March 1972, wherein Mathura, a tribal girl who was a minor at the time, was allegedly raped by two policemen on the compound of Desai Ganj Police Station in Chandrapur district of Maharashtra. After the Supreme Court acquitted the accused, there was public outcry and protests, which eventually led to amendments in Indian rape law via The Criminal Law (Second Amendment) Act 1983 (No. 46)

Harpal Singh & Anr. V/S State Of Himachal Pradesh on 14 November, 1980

The Supreme Court condoned the delay in filing the FIR in case of rape of a 16 year old girl. The court mentioned that it is common that since the honor of the family is involved, family members took some time to decide whether the matter needs to be taken to the court or not. The court also emphasized that since it was proved that the girl was below 16 years of age, her consent in sexual activity was irrelevant. The court also ruled that delay in reporting of the case will not affect the case if a reasonable explanation can be given.

State Of Haryana vs Prem Chand And Others on 14 December, 1989

In a case of rape, the court ruled that “the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment.” It went on to characterize the ‘character’ of the victim as irrelevant as a mitigating or extenuating circumstance.

Sakshi Vs. Union of India on 26 May, 2004

The NGO Sakshi filed a writ petition in Public Interest to broaden the definition of rape in cases involving children where the child is abused by insertion of objects into the vagina or insertion of the male organ into body parts such as anus or mouth. The Supreme Court rejected the plea & dismissed the public interest litigation. But it issued valuable guidelines for trial of rape and sexual abuse which concern children. These are known as the Sakshi guidelines:

1. A screen or an arrangement where victim or witnesses do not see the body or face of the accused.
2. Questions put in cross examination on behalf of accused, if they relate directly to the incident, must be given in writing to the Presiding Officer of the court who may put them to the victim/witnessed in a language that is clear and not embarrassing.
3. Victims of child abuse or rape should be allowed sufficient breaks as and when required during the testimony.

Important Judgments under the Protection of Children from Sexual Offences (POCSO) Act

Attorney General For India V. Satish And Another (2021)

The Supreme Court set aside the Bombay High Court’s judgment in the case of Satish Ragde v. State of Maharashtra (2021), which had ruled that grabbing a child’s breasts without “skin-to-skin contact” constituted molestation under the POCSO Act. The Apex Court emphasized that Section 7 covers both direct and indirect touch, and the High Court’s interpretation trivializes and legitimizes undesirable behavior that undermines a child’s dignity and autonomy.

Jarnail Singh V. State Of Haryana (2013)

The Supreme Court observed that the procedure used to determine the age of a child in conflict with the law, as provided by the Juvenile Justice (Care and Protection of Children) Rules, 2007, can be followed in cases falling under the POCSO Act, 2012.

Alakh Alok Srivastava V. Union Of India And Others (2018)

The Supreme Court laid down guidelines to be followed by Special Courts while trying a case under the POCSO Act, 2012, so that the trial is completed within a period of one year from the date of taking cognizance of the offence

Nipun Saxena V. Union Of India (2019)

The Supreme Court released a set of guidelines in relation to Section 23 of the POCSO Act, holding the publisher or owner of the media, studio, or photography facility jointly and severally accountable for his employee’s act/omission.

The Apex Court released a set of guidelines about the provision, which are provided hereunder:

No one may broadcast the victim’s name in print, electronic, or social media, or even in a distant way, divulge any details that may lead to the victim’s identification among the public.

In cases where the victim is deceased or mentally ill, the victim’s name or identity should not be revealed, even with the consent of the next of kin, unless circumstances justifying the disclosure persist, which should be decided by the competent authority, the competent authority, in this case, was the Sessions Judge.

FIRs for offenses under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB, or 376-E of the IPC, as well as violations under POCSO, are not to be made public.

If a victim files an appeal under Section 372 CrPC, the victim is not needed to reveal his or her identity, and the appeal will be handled as per the law.

All papers in which the victim’s identity is exposed must be kept under a sealed cover as much as possible. These documents should be replaced with similar documents in which the victim’s name will be deleted from all records that may be scrutinized in the public domain.

All authorities to whom the victim’s name is provided by the investigating agency or the Court are likewise obligated to keep the victim’s name and identity secret and not to reveal it in any way except in the report, which must be delivered to the investigating agency or the Court in a sealed envelope.

An application by the next of kin to authorize the disclosure of the identity of a dead victim or a victim of unsound mind under Section 228-A(2)(c) IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228-A(1)(c) an lays down criteria as per our directions.

In the case of juvenile victims under the POCSO Act, 2012, the Special Court can only permit their identity to be revealed if it is for the child’s benefit.

All the States & Union Territories were requested to set up at least one ‘One-Stop Centre’ in every district within one year from the present case's judgment date.

State of Karnataka Vs. Shivanna @ Tarkari Shivanna

A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till charge sheet/report under Section 173 Cr.P.C. is filed.

DOCTORINE OF ELECTION

SECTION 35, TPA:-

• Where a person professes to transfer a property not his own, and
• In lieu of transfer, the transferor confers certain benefits upon the owner of the property, and
• The two things, i.e., transfer of property and conferring of the benefit, for part of same transaction.
• Then, the owner of property is bound to elect (chose) either
  • to take the benefit and transfer his property or
  • retain his property and give up the benefit.

Section 35 incorporates the doctrine of election. Election means choosing between 2 inconsistent rights.

The doctrine which is based on equity is applied to every species of instrument whether deed or will and to every kind of property movable or immovable. The Latin maxim “quod approbo non reprobo” means that ‘no one can approbate and reprobate.’ In other words, a person cannot accept a thing and reject another in the same instrument. For the first time, doctrine of election was elaborately explained by Lord Hather in the case of Cooper v Cooper (1874).

Illustration: By a deed X (transferor) gives to Y (transferee) a farmhouse belonging to Z (owner), and by the same deed gives Rs. 50 lakhs. Now, Z is put to election that means Z has to choose whether he wants to take Rs. 50 lakhs by giving his farmhouse to Y or not. In this case, Z is entitled to R. 50 lakhs only when he conforms to all the provisions of the deed by renouncing his rights in the farmhouse and by giving it to Y.

In the matter of Mohd. Kader Ali Fakir V Lukman Hakim it was held that the basis of the doctrine of choice is that the person who uses the instrument must also bear the burden imposed in this way and that he cannot carry under and against the same instrument.

The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. (National Insurance Company v. Masan & Anr.)

In the case of Mst. Dhanpatti v Devi Prasad and others, the Supreme Court established the necessary requirements for the doctrine of election

The following are the prerequisites for the application of the election doctrine:

• In order for a property to be transferred, the transferor must claim possession of the property being transferred.
• In order for a transfer to be legal, the owner of the property being transferred must get some kind of benefit from the transferor.
• This is a two-part transaction: transferring something and receiving something in exchange for it.
• The property owner must get the benefit directly.
• The benefit must be provided to him in a similar manner as he now holds ownership of the property.

Right of Disappointed Transferee:->

When the owner elects against the transfer, the transferee to whom the property was professed to be transferred gets disappointed. There may arise 2 situations:

a. When the transfer is gratuitous, i.e., without consideration (gift) and transferor dies or becomes incapable of making fresh transfer and,

b. When transfer is for consideration (sale, lease, etc.), whether the transferor is alive or dead at the time of election,

The transferee is entitled to get reasonable compensation from the transferor or his representative. The rule applies whether the transferor believes property to be his own or not.

When a person chooses to confirm:

A person may expressly confirm the transfer through words or implicitly through conduct. It all depends on the owner of the property who receives the benefit in question. The owner must make an election in order to accept the benefit, which confirms the transfer.

By communicating the owner's willingness to give up ownership of the transferred interest in exchange for the advantage received, this acceptance of benefit confirms the transaction. The owner must be aware of his obligation to elect for such receipt of advantage to constitute an election in favor of the transaction, nevertheless. Owner is fully aware of the factors that could influence a reasonable man's decision while making one.

Time limit for election

If within two years the owner or his representatives fail to express their dissent or reject the benefits conferred upon them, then such transfer is deemed to be confirmed in favor of the transfer.

If the owner waives enquiry into circumstances then, a presumption of election may arise by the conduct of the owner. Such presumption also constitutes as implied election.

It arises where:

The owner has enjoyed the benefit for two years without doing any act of refusal or dissent of the transaction. Where the owner of property exhausts or consumes the benefit. Thus, whether he has done some act which renders it impossible to place the parties (interested in property) in same condition as before.

Who need not elect?

A person taking a benefit indirectly under a transaction need not to elect.

Illustration: A professes to transfer C’s property to B and gives Rs. 5,000 to wife of C. This is not direct benefit to C and therefore, C does not have duty to elect.

Person has 2 different capacities but under circumstances they are merged in one person, then he may accept the benefit in one capacity and reject the other part of instrument in another capacity.

Illustration: Birla Mandir (Owner & Trustee) – Jugal Kishore Birla

Requisition to elect

After one year if the owner fails to elect, then the transferor may require him to make such election. In case the owner does not elect within a reasonable time after such requisition he is deemed to have elected in favor of such requisition.

Suspension of election

The owner may be legally unable to vote in some situations, such as when they are minors or mentally incompetent. In such case the election is postponed till the disability ceases or until election is made on his behalf by competent authority.

Conclusion

Election is a decision made between two options or rights that conflict. The applicant is not allowed to exercise both rights; the receiver must choose between two different rights.

In essence, this means that the recipient is also bearing the burden. Originating from the equity principle, this categorically states that one cannot have benefited from both sides.