The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
Justice Pushpa Ganediwala was appointed as a District Judge in 2007 and she served on the City Civil Court in Mumbai and the District and Family Courts in Nagpur. She later became the Principal District and Sessions Judge in Nagpur, and
subsequently was appointed as the Registrar-General of the Bombay High Court.In 2018, she was considered for
appointment to the Bombay High Court, but was not appointed afterBombay High Court recommended against it.
However, in February 2019, Ganediwala’s appointment was reconsidered and
she was appointed as an additional judge in the Bombay High Court. Since then, she has been on the Nagpur Bench of Bombay High Court and has laid down
various important judgments throughout the pandemic. She has recently been in news for her recent judgments which
have been considered ‘controversial’ mainly due to her reasoning and her interpretations.
In just a time span of a week, Justice Ganediwala passed three judgements in sexual assault cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and because of this, the Supreme Court Collegium has withdrawn its recommendation of promoting Justice Pushpa Kanewdiwala as the permanent judge of Bombay High Court. The
Collegium which consists of the Chief Justice of India (CJI) and four other judges of the Apex Court who handle the
appointments, promotions, and transfers of judges to the Supreme Court observed that she needed more exposure in handling sensitive cases.
Contents hide
2 Reversed Of Conviction by Justice Ganediwala
Controversial Pocso Verdicts by Justice Ganediwala
On January 14, 2021, Jutstice Ganediwala was hearing an appeal file by Jageshwar Kawle in the Jageshwar Wasudeo Kawle v. State of Maharashtra. In this case, Justice Ganediwala reversed the 10years imprisonment order passed earlier and unlike the other two cases,
she acquitted him of all the charges under both the POSCO (section 5,6) and IPC
(section 376(2)). Jageshwar had allegedly taken the victim (17years old) to her sister’s house and had sexual intercourse
with her a number of times over a period of two months.
Justice Ganediwala noted that the testimony of the victim was the only evidence of her being there without her own consent and thus it[1]‘did not inspire the confidence of the court and was not of sterling quality. Another absurd observation make by her was that she wonders how an unmarry man and a girl were able to sleep in one room and from where did they find the privacy to indulge in intercourse and she believes that the case was file only due to the positive pregnancy report which also could not be confirm to the be the cause of such intercourse due to the lack of
a DNA test.
Controversial Pocso Verdicts by Justice Ganediwala
The very next day on January 15, 2021, Justice Ganediwala again reverse an order of conviction of a 26-year-old driver name Suraj who was accuse of raping a minor girl. On 26 July, 2013 the victim’s mother had filed a case against
Suraj who had allegedly trespassed and entered their house at night while she had gone to the washroom and gagged
the mouth of her daughter (15-year-old) and removed his own and her clothes and raped her. Justice Ganediwala stated that[2] “It was highly impossible for a single man to gag the victim and remove her and his clothes and to perform the forcible sexual act, without any scuffle.”
She reverse the 10years imprisonment order passed by the trial court in accordance with Section 376 and 377 of the Indian Penal Code (IPC) and further add that as there was no injury of a scuffle as per the medical records, the act may have been consensual and therefore it would be unfair to send the accused behind bar for 10years just on the basis of the victim’s testimony. As per the law,
the sole testimony of the rape victim is enough to fix criminal liability against the accused but this was not consider to be of much importance by Justice Ganediwala as she consider
the testimony of the victim in this case to be of a ‘sub-standard quality’.
Same-day in another case, she upheld that[3] “holding the hands of a minor or the zip of the pants of the accused being open at the relevant time does not amount to sexual assault under the Protection of Children from Sexual Offences (POCSO) Act”. The convicted man had taken the daughter (5years old) of the appellant inside the room and
was holding her hand while his own pants were unzip when she find them.
The man was convict for offences under Sections 354A (sexual harassment) and 448 (house trespassing) under the IPC along with Sections 8 (sexual assault), 10 (aggravated sexual assault) and 12 (sexual harassment) of the POSCO Act.[4] Section 7 of the POCSO Act, states:”
Whoever, with sexual intent, touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other Act with sexual intent which involves physical contact without penetration is say to commit sexual assault.” She noted that as there was no ‘act’
he could not be convicted of sexual assault and was thus only guilty of offences under the IPC.
After another four days on January 19, 2021, in a criminal appeal filed by a man who had taken the girl to her house under the pretence of offering her a guava and instead groped her breast after partially stripping her. The original FIR
was file by her mother and the man was accuse of sexual assault under section 7 of POSCO Act. In this case Justice Ganediwala observed that [5]“the accused removed her top and pressed her breast. As such, there is no direct physical contact i.e. skin-to-skin with sexual intent without penetration” and
thus he was acquitte of charges of sexual assault under POSCO Act and only accuse of Sections 354 (outraging a woman’s modesty) and section342 (wrongful
confinement) of the IPC which gave him only one year of imprisonment as opposed to 10years of imprisonment.
It was after this particular case that she was actively criticize over social media for she took all the interpretations in
the literal sense rather than applying the golden rule of interpretation. The stay order against this order of Justice Ganediwala was pass by a bench head by CJI S.A. Bobde after Attorney General KK Venu Gopal mentioned it was a “very disturbing interpretation by the Bombay Supreme Court”.
Following this, the recommendation which was pass in favor of Justice Ganediwala on 20th January 2021 was withdraw and will now be present again before the collegium system’s panel to decide her tenure as an additional judge of the Bombay Supreme Court and she may either be sent back to the District Judiciary from where she was promote in February or extending her probation for a few years. Whatever may be the decision of the panel, this
week’s happenings brought to everyone’s notice the loopholes which are present in our legal system and how various interpretations can be drawn of one single statute which
may lead to disruption in the society and distrust of the people in the judiciary. POSCO Act in particular is of recent origin having been establish only in the year 2012 and
require some serious amendments to be make.
Controversial Pocso Verdicts by Justice Ganediwala
[1]PTI, Rape victims’ testimony ought to be of ‘sterling quality’, must inspire confidence: HC judge, THE INDIAN EXPRESS,https://www.newindianexpress.com/nation/2021/jan/29/rape-victims-testimony-ought-to-be-of-sterling-quality-must-inspire-confidence-hc-judge-2256693.html
[2]Neha Joshi, Bombay High Court acquits rape convict after victim’s testimony fails to inspire confidence, BAR & BENCH, https://www.barandbench.com/news/litigation/bombay-high-court-acquits-rape-convict-after-victims-testimony-fails-to-inspire-confidence
[3]Vidya,Holding victim’s hand or open pant zip of accused not sexual assault under POCSO Act: Bombay HC, INDIA TODAY,https://www.indiatoday.in/india/story/holding-girl-s-hands-opening-pant-s-zip-no-sexual-assault-under-pocso-hc-1763586-2021-01-28
[4] Indian kanoon.com
[5]DebayanRoy,Supreme Court stays Bombay High Court judgment which ruled skin-to-skin contact necessary for
offence of ‘sexual assault’ under POCSO, BAR & BENCH,https://www.barandbench.com/news/litigation/
supreme-court-stays-bombay-high-court-order-skin-to-skin-contact-necessary-offence-sexual-assault-pocso
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