Chattisgarh High Court
Xyz (Description Of The Appellant Is In … vs State Of Chhattisgarh on 24 April, 2025
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HIGH COURT OF CHHATTISGARH AT BILASPUR
Order Reserved on 05.02.2025
Order Delivered on 24.04.2025
CRA No. 2109 of 2024
1 - Xyz (Description Of The Appellant Is In Closed Envelope) Nil
... Appellant(s)
versus
1 - State Of Chhattisgarh Through Station House Officer Police Of Police
Station Kurud District - Dhamtari (C.G.)
... Respondent(s)
Order Sheet
05/02/2025 Shri Manoj Paranjape, Advocate assisted by Shri Anil
Gulati, counsel for the appellant.
Ms. Pragya Shrivastava, Dy.GA for the
State/respondent.
Heard on I.A. No. 01/2024, application under Section
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430 of the Bhartiya Nagrik Suraksha Sanhita, 2023 for
suspension of sentence and grant of bail to the appellant.
By the impugned judgment dated 21.10.2024 passed
by the learned Additional Session Judge (FTC), and
Childrens’ Court Dhamtari, District Dhamtari in Special
Criminal Case (POCSO Act) No. 48/2022 whereby the
appellant stands convicted under Sections 375(A)/376(3) of
the IPC and Section 4(2) of the POCSO Act and sentenced
him to undergo RI for ten years and to pay fine of Rs. 2,000/-
with default stipulations.
As per prosecution case, FIR was lodged by mother of
the victim at police station Kurud alleging that her daughter
was taken away by the appellant to an isolated house and
committed unnatural act and had also prepared video and
made it viral. On the basis of the said report, the police of
police station Kurud, District Dhamtari registered the case for
the offence punishable under Sections 377 IPC, 8,12 & 14 of
the Protection of Children from Sexual Offences Act and 67
& 68 (B) of Information Technology Act against the appellant.
After completion of investigation, charge sheet was filed
against the appellant for the aforesaid offences.
Learned counsel for the appellant submits that the
impugned judgment passed by the learned trial court is bad
in law and the same is liable to be set aside. He submits that
the learned trial court has failed to appreciate the evidence
and documents available on record. He submits that there
are major contradictions and omissions in the statement of
the prosecution witnesses. He submits that as per provisions
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of the POCSO Act, the statement of the victim recorded
under Section 161 Cr.P.C. ought to have been recorded by
woman police officer but it has been recorded by the
Investigating Officer and therefore the entire proceeding of
the case is vitiated on this ground alone. He submits that the
trial court has failed to appreciate that the appellant and
victim were known to each other and prima facie it is a case
of consensual relationship. It is submitted that the incident
had taken place on 07.07.2022 whereas the report has been
lodged on 22.08.2022 and therefore it appears that under the
pressure of her mother, the report has been lodged against
the appellant.
Counsel for the appellant further submits that the
prosecution has failed to prove that on the date of incident,
the victim was minor and the prosecution witnesses PW-4
Headmaster has admitted that in the scholar register the
date of birth of the prosecutrix is not mentioned. It is
submitted that the doctor who had medically examined the
victim has given the report Ex.P-11 has not given any
definite opinion with regard to sexual intercourse. Lastly, it is
submitted that the appellant was on bail during trial and after
pronouncement of judgment he is in jail since 21.10.2024
and the appeal is likely to take some time for its conclusion,
hence the appellant has filed the instant application for
suspension of sentence and grant of bail. He has placed his
reliance in the matter of Juvenile Vs. The State of Madhya
Pradesh in Cr.A. No. 818 of 2024 (in the High Court of
Madhya Pradesh at Indore) in para 10,13,14 and 15
wherein it has been held as under:
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10. In the case of heinous offence committed by a
child between the age of 16 to18 years, the very
consideration of provisions of JJ Act, it id crystal clear
that if a person was juvenile at the time of offence but
has turned 18 years during the trial he shall still be
covered by the provisions of JJ Act including the bail
provision because the Act provides for consideration
of the age of child in conflict with law (CICL) at the
time of offence. However, if the Juvenile Justice Board
transfers the case to a regular criminal case (in case
of heinous crimes), the bail provisions under the
Cr.P.C may then apply. The other judgments in regard
to the trial of a juvenile between the age 16-18 years
is mentioned below:-
In case of Subramanian Swamy v. Raju, 2014
(8) SCC 390- The case focuses on the constitutional
validity of certain provisions of the Juvenile Justice
Act, particularly in heinous crimes committed by
juveniles aged 16 to 18 years. The judgment in para
36 referred the observation made by the Committee
constituted under Article 45 of the UN Convention
(CRC) stating:
“36. It needs to be clarified that the concluding
observations of the Committee under Article 45 of the
UN Convention (CRC) are qua a particular State party
whereas general comments of the Committee under
the same article are authoritative interpretations
addressed to all State parties.
The above distinction between “concluding
observations” and “general comments” is highlighted
to draw attention to the fact that in the meeting of the
Committee held in Geneva in the year 2007 certain
general observations with regard to MACR of 18 years
were made which would be applicable to State parties
other than India as the law had already been
amended in our country pursuant to the concluding
observations made by the Committee in the year 2000
specifically qua India. The views of the Committee in
respect of other member States may be usefully taken
5note of at this stage by extracting the
recommendations in the nature of general comments
in Paras 36, 37 and 38 of the Report:
“36. The Committee also wishes to draw the attention
of State parties to the upper age-limit for the
application of the rules of juvenile justice. These
special rules–in terms both of special procedural
rules and of rules for diversion and special measures
–should apply, starting at the MACR set in the
country, for all children who, at the time of their alleged
commission of an offence (or act punishable under the
criminal law), have not yet reached the age of 18
years.
37. The Committee wishes to remind State parties that
they have recognized the right of every child alleged
as, accused of, or recognized as having infringed the
penal law to be treated in accordance with the
provisions of Article 40 of CRC. This means that every
person under the age of 18 years at the time of the
alleged commission of an offence must be treated in
accordance with the rules of juvenile justice.
38. The Committee, therefore, recommends that those
State parties which limit the applicability of their
juvenile justice rules to children under the age of 16
(or lower) years, or which allow by way of exception
that 16 or 17 year old children are treated as adult
criminals, change their laws with a view to achieving a
non-discriminatory full application of their juvenile
justice rules to all persons under the age of 18 years.
The Committee notes with appreciation that some
State parties allow for the application of the rules and
regulations of juvenile justice to persons aged 18 and
older, usually till the age of 21, either as a general rule
or by way of exception.”
In the case of Amit v. State of Maharashtra,
2011 (13) SCC 744-
17. The Explanation to Section 20 which was added in
2006 makes it clear that in all pending cases, which
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would include not only trials but even subsequent
proceedings by way of revision or appeal, the
determination of juvenility of a juvenile would be in
terms of clause (l) of Section 2, even if the juvenile
ceased to be a juvenile on or before 1-4-2001, when
the Act came into force and the provisions of the Act
would apply as if the said provision had been in force
for all purposes and for all material times when the
alleged offence was committed. Section 20 enables
the court to consider and determine the juvenility of a
person even after conviction by the regular court and
also empowers the court, while maintaining the
conviction, to set aside the sentence imposed and
forward the case to the Board concerned for passing
sentence in accordance with the provisions of the Act.
12. Section 20(1) engrafts the provisions in relation
to the juvenile who has turned 21 years as per the
provisions of section 20(1), has undergone informative
changes and can be a contributing member of the
society based on the rehabilitation and evaluation of
experts decide to release the child on conditions
including the appointment of a monitoring authority for
the remainder of the term or decide that the child will
complete the remainder of the jail as per sub-section 2
of section 20. As per the provisions of JJ Act, if the
case is transferred to an adult Criminal Court and the
person is convicted as an adult, he might be sent to
regular jail upon conviction but only after turning 21
years until then, he will be stayed at a place of safety.
13. In the light of the aforesaid provisions of the Act
and the enunciation of law,the issues are answered as
under :-
When the child becomes an adult during the
pendency of the trial, he shall be tried as a ‘child’ and
not as an adult and the consideration for grant of bail
of the ‘child’ shall be as per the provisions under
section 12 of the Act and the law laid down in various
7judgments of the court and the Supreme Court as
referred herein. In the case of a child who has turned
21 years during the trial, his case shall be considered
as per the provisions of section 20 of the Act. As per
the sub-section 2 of section 20 of the Act, if the case is
transferred to an adult criminal court and the person is
convicted as an adult, he shall be sent to a regular jail
upon conviction but only after turning 21 years until
then, he will be stayed at a place of safety. In such
eventuality the court has to keep in mind that the
primary object of the Act is the juvenile’s rehabilitation
not punishment. The discretion to deny the
bail/suspension of sentence is only in exceptional
cases where the safety or justice interest are involved.
The report of Probation Officer shall be relevant
consideration for considering an application for
bail/suspension of sentence and the application shall
not be rejected only on consideration of seriousness
or manner of commission of offense in the case of a
child who has attained the age of 21 years during the
pendency of the trial/appeal. Though, the provisions of
Code of Criminal Procedure may apply.
14. It is undisputed that at the time of the commission
of offence, the applicant was more than 16 years old
and less than 18 years old. However, at present, he is
more than 21 years old. He was tried as an adult and
at present he is staying at a “Place of Safety‟ the
period of which has come to an end and he is required
to besent to regular jail as he has already become
more than 21 years.
15. In view of the issues answered by this Court, the
application for suspension of sentence/bail is being
considered. As per the Probation Report, in which
earlier the column of employment was left blank but
subsequently it has been found that he was employed.
Upon perusal of the report of the Probation Officer, it is
noticed that there is no adverse report against the
applicant. However, he has stated that the father of
the appellant is working as a Chowkidar and has a
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habit of consuming liquor. The mother of the appellant
is a housewife and there is no male member in the
family to have control over the appellant. The
application was rejected. Since the report of the
Probation Officer is not adverse to the appellant
relating to the conduct, behavior in the observation
home and place of safety and further the conviction is
based on circumstantial evidence, where the appellant
was found in a car traveling along with the other co-
accused at the spot in which the dead body of the
deceased was kept in dick. There is no evidence that
the appellant was aware of the fact that the dead body
was kept in the dicky. This Court finds prima-facie the
case for grant of bail because the appellant is more
than 21 years and he cannot be denied
bail/suspension of sentence only on the ground that
there is no male member in the family to have control
over him. This Court finds that the appellant shall be
released on bail but he will be under the supervision
and surveillance of Probation Officer, Women and
Child Development, Shajapur.”
Learned counsel for the State/respondent has
objected the bail application and submits that it is a case
where the appellant had committed unnatural sex with the
victim (PW-1) and made it viral. He had vehemently
opposed and has contended that the learned trial court has
rightly held the accused-appellant (child in conflict with law)
guilty and there is sufficient evidence against the present
appellant. Provision has been made under Section 12 of the
Act that when any person accused of a bailable or a non-
bailable offence and apparently a juvenile, is arrested or
detained or is brought before a board then irrespective of the
accusation he shall be released on bail or placed under the
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supervision of a probation officer or under the care of any fit
institution or fit institution except when :-
1. if there appear reasonable grounds for believing that the
release is likely to bring him into association with any known
criminals or
2. that it will expose him to moral, physical or psychological
danger, or
3. that his release would defeat the ends of justice.
It has been held by the Supreme court in Dr.
Subramaniam Swamy vs Raju, 2014 (86) ACC 637 that a
juvenile has to be released on bail unless the court has a
reasonable ground to believe that his release will bring him
into association of some known criminal, or will expose him
to moral, physical or psychological danger or his release
would defeat the ends of justice.
Section 15 of the Amending Act only provides for
transfer of a juvenile to the Children Court for trial as an
adult. Where the child has attained the age of 16 years and
has been alleged to have committed heinous offence, the JJ
Board is required to conduct a preliminary inquiry with regard
to his mental and physical capacity to commit offence, ability
to understand the consequence of the offence and the
circumstances in which the offence was committed
considering their physical, psychological and mental status in
commission of crime. Section 18(3) of the Act provides that
after making the assessment under section 15, JJ Board
comes to a conclusion that there is a need for trial of the
child as an adult, the Board may pass an order for the
transfer of the trial of the case to the Children Court.
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Considering the aforesaid facts and circumstances, it
is clear that the age of the victim at the time of incident was
between 17 to 18 years, whereas the juvenile was almost
equal in age with the victim. It is also clear that the victim
might be knowing the appellant and therefore the trust of
accused/appellant she went along with him . In a case of
rape or attempt of rape or to commit unnatural sex, the
conception of compromise under no circumstances can
really be thought of. These are crimes against the body of
womanhood which is her own temple. These are offences
which suffocate the breath of life and blemish the reputation.
Under these circumstances, this Court is of the
considered opinion that on the basis of the evidence, the
learned trial court held that the appellant had committed
unnatural sex which involves moral turpitude and the manner
in which offence was committed, I am not inclined to allow
the application for suspension of sentence and grant of bail
to the appellant at this stage. Accordingly, I.A. No.01, stands
rejected.
List this appeal for final hearing on 6th May 2025.
Sd/-
(Arvind Kumar Verma)
Judge
Digitally signed
by SUGUNA
SUGUNA DUBEY
DUBEY Date:
2025.04.24
17:09:56 +0530