Sunil Kumar
in Criminal Law
Asked May 24, 2017

False case under POSCO

  • 2 Answers
  • 1927 Views

Hi, My brother was arrested today under a POSCO case. Police did not give exact details of the case, they refused to give us the copy of FIR and what exactly they have accused him of. First, we need to get him bail and then need to get him out of this case. The information so far we have is following - My brother is a store manager in Nike store in Gurgaon. A customer had visited the store on 19th May 2017. They have a 6-7 years old daughter. He had done 3 or 4 visits that day. Father asked my brother to take care of his daughter till he checks out stuff in the store. Requested him not to let her go out. Girl child started playing with a football, given by my brother. The girl kicked the ball towards trial room area and my brother went to pick it up. The girl followed him to trial room area. They were out of CCTV camera for barely a second. That family apparently had visited the store at least 3 times. All this is captured in the CCTV footage of the store. After 5 days of this event, the parents had filed a case under POSCO today 25th May 2017, saying that my brother had shown his private parts to the girl during that 1 second. Police had provided only this much detail to us. We waited a whole day in the police station for the report and other details. But the police has refused to give us any copy. We have CCTV footage as evidence for my brother's innocence. Store and Police have also seen the footage. Could someone please take up this case on urgent basis.

Answers 2

If the facts are same as stated by you then your brother will get bail. But case cannot be booked under the said Act for silly thing. There must be some strong ground. Approach an intelligent criminal lawyer and who will get justice for you and your brother.

Agree Comment 0 Agrees over 4 years ago

Your brother is entitled to get a copy of the FIR registered against him on payment of the applicable legal fees. S. 207(ii) of Cr.P.C[1] requires the Magistrate concerned to furnish to the accused a copy of the FIR after a charge sheet has been filed on completion of investigation by the police. However there are several judgments of various High Courts which clearly lay down that the copy of the FIR shall be given to the accused person, on his request, on payment of the legal fees. This has to be done even if the charge sheet has not been filed, i.e., the copy of the FIR can be provided to the accused immediately after the registration of FIR.  In Panchanan Mondal v. State[2] it was held that it is expedient in the interests of justice that a certified copy of the first information report, which is a public document, should be granted to the accused on his payment of the legal fees therefor at any stage even earlier than the stage of S. 173(4) of the Code of Criminal Procedure. At the later stage the accused will have the right to have a free copy but the same would not take away the right he already has in law to have a certified copy of the first information report on payment of the legal fees. Hence, you may assert your right to have a copy of the FIR.

To prevent misuse of the law, punishment has been provided for false complaints or false information with malicious intent. Under S. 22 of the POCSO Act[3], one who makes a false complaint or provides false information against any person solely with the intention to humiliate, extort or threaten or defame him, will be punished with imprisonment for six months or with fine or with both. The child, however, will not be punished. It is important to note that intention is an essential element and mistake of facts is not a false complaint. There are several cases where the accused has been acquitted by the courts for false allegations by the petitioner under the POCSO Act. In fact in certain cases it has been observed that a case under S. 22 may be brought against a child as well. In State v. Karnail Singh & Another[4] it was observed that police cannot take any action against any child, if during investigation, it is revealed that the child had made a false complaint or information provided by him/her is false. But this does not empowers a child to make a false deposition in judicial proceeding. This further clears from Section 22 (1) of POCSO Act because the maximum sentence to furnish false information is up to six months or with a fine or both whereas to make a false statement on oath before the Court and to give false evidence or fabricate false evidence is punishable for imprisonment which may extend upto 7 years. Section 22 of the POCSO Act does not prevent the Court in any manner from proceeding even against the child witness, if there are sufficient reasons to believe that the child witness has made a false evidence or created a false or fabricated circumstance.

 In cases of grave offences under the POCSO Act like penetrative sexual assault the court does not grant bail. However, since you have substantial proof to make a case of false implication through the CCTV footage, court should in most probability grant bail.

You can also try applying for a police bail initially as the Police may decide to release your brother on bail until his first court appearance if it is not possible for them to bring him before a court immediately. The bail comes to an end when your brother appears in court and he will then need to apply for court bail instead.    However, if the Police refuse to grant bail, the issue will be decided by a judge.

 

 

[1] Available at: https://indiankanoon.org/doc/1613898/.

[2] Panchanan Mondal v. State, 1971 Crl.L.J. 875; you can read it here.

[3] Available at: http://www.advocatekhoj.com/library/bareacts/childrenprotection/22.php?Title=Protection%20of%20Children%20from%20Sexual%20Offences%20Act,%202012&STitle=Punishment%20for%20false%20complaint%20or%20false%20information.

[4] State v. Karnail Singh & Another; SC No.: 194/13; you can read it here.
Agree Comment 0 Agrees over 4 years ago

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