Dr. Manjula Krippendorf v Union of India [POCSO Decision 2017 Supreme Court]

With sexual crimes becoming a common story and those against children particularly on the rise, the case becomes more relevant in terms of deciding who to bring within the purview of ‘child’ under the Act. The case attempted to convince the Court to widen the ambit of the term so as to include mentally retarded adults who have attained adulthood only in respect of biological growth, while having mental growth of a child.

Title: Ms. Eera, through Dr. Manjula Krippendorf v Union of India and Anr.

Register No.: CRIMINAL APPEAL NOS.1217­-1219 OF 2017 

Coram:

·         Dipak Misra J.

·         R F Nariman J.

Matter:

The petitioner who is 38 years of age suffers from Cerebral Palsy and has attained only 6-8 years of mental growth was raped by the Resp-2, and case was registered under the IPC and proceedings were made under the CrPC. Since the prosecutrix is a child in terms of her mental capacity, when it came to trial at the Sessions Court of Saket, issues relating to camera trial, videography, absence of congenial atmosphere, etc. emerged. The mother of the victim filed a petition before the Delhi HC u/s 482 of CrPC praying that the matter be transferred to Special Court under POCSO Act. The HC directed videography of the proceedings as the victim mainly communicates through gestures, but did not transfer the case under POCSA. The High Court directed that the case should be assigned to a trial court presided over by a lady Judge in Saket Court. The Petition before the Supreme Court purports to widen the scope of the term “child” under the POCSO Act to consider the functional age of the subject, rather than the biological age. The case also pertained to payment of compensation under the Act to the victim, since the accused had died during the pendency of the case.

Decision of the Court:

The court ruled that the term “child” under the Act cannot be interpreted widely to include the mental age of the person, and directed that the State Legal Services Authority, Delhi shall award the compensation keeping   in   view   the   Scheme   framed   by   the   Delhi Government. The Court considered the mechanism of interpretation (literal or purposive) adopted by the Courts in various precedents and concluded that the distinction between adjudication and law-making must be maintained. Earlier decisions were examined, which ruled that judges must not proclaim that they are playing the role of law-makers merely for an exhibition of judicial valor.

Relevant Portions of the Judgment

“.......the only conclusion that can be arrived at is that definition in Section   2(d)   defining   the   term   “age”   cannot   include mental age…”

“….this is a fit case where the victim should be granted the maximum compensation envisaged under the scheme….”

“…..under our constitutional scheme, Judges only declare the law; it is for the legislatures to make the law.”

“…..A legislative judgment is anathema….”

Delhi High Court Decision on GST on Lawyers

The GST has been here for barely a month now, but its anomalies have already dragged it to Court to resolve the ambiguities raised by the various Notifications issued by the Govt under the GST regime. The Delhi HC was recently faced with the first case of this sort, filed by a lawyer, questioning the confusion caused to him by some Notifications.

Title: J. K. Mittal & Co. v Union of India

Citation: W.P. (C) NO. 5709 OF 2017; CM NO. 23814 OF 2017 (Delhi High Court)

Coram:

·         S. MURALIDHAR, J.

·         PRATHIBA M. SINGH, J.

Matter: GST Notifications – contradiction with GST Council recommendations – confusion w.r.t “reverse charge” mechanism - imposition on services of lawyers.

Brief Statement of Facts:

The petition was filed by Mr. J K Mittal citing that these Notifications will have adverse consequences on lawyers in general; earlier Notifications of the Govt stood for the exemption of liability of lawyers/Firms in respect of all services provided by them to clients and only the client was to pay on the reverse-charge basis. He points out the technical disparities between the wordings used in the subsequent Notifications, in effect limiting the exemption only to representational services rendered by lawyers to clients. an additional difficulty pointed out by him is that the Finance Act had earlier required lawyers to register as service-providers, but the subsequent change of bringing it under the reverse-charge category did not bring with it any provision for de-registration.

Decision of the Court:

Delhi High Court clarified in its order that no coercive action should be taken against any lawyer or law firms for non-compliance with any legal requirement under the CGST Act, the IGST Act or the DGST Act till a clarification is issued by the Central Government.

Relevant portions of the Order

“….it is plain that as of date there is no clarity on whether all legal services (not restricted to representational services) provided by legal practitioners and firms would be governed by the reverse charge mechanism…”

“….There is therefore prima facie merit in the contention of Mr Mittal that the legal practitioners are under a genuine doubt whether they require to get themselves registered under the three statutes...”

“…no coercive action be taken against any lawyer or law firms for non-compliance with any legal requirement under the CGST Act, the IGST Act or the DGST Act till a clarification is issued by the Central Government and the GNCTD and till further orders in that regard by this Court…”

“…any lawyer or law firm that has been registered under the CGST Act, or the IGST Act or the DGST Act from 1st July, 2017 onwards will not be denied the benefit of such clarification as and when it is issued.

“…..if an appropriate clarification is not able to be issued by the [UoI and GNCTD] by the next date, the Court will proceed to consider passing appropriate interim directions…”