ABC v. State Of Chhattisgarh Through District Magistrate, Raigarh

#1. With the consent of the parties, matter is heard finally.

#2. Challenge in this criminal revision is to the order dated 21/05/2025 passed by learned Juvenile Court/Additional Session Judge/Fast Track Special Court (P.O.C.S.O Act), Raigarh, District Raigarh, Chhattisgarh in Criminal Appeal No. 34/2025, whereby the appeal preferred by the petitioner herein against the order dated

05.03.2025 has been rejected. 2

#3. Relevant facts for disposal of this revision is that the complainant/victim (born on 10/05/2005) has preferred a report/complaint before Police Station -Chakradhar Nagar, Raigarh, stating therein that her friend Firoza Khan used to visit her house and through Firoza Khan she (victim) came into contact of the present applicant. In the month of August, 2020, she (victim) met with the applicant since then she was pressurized by the applicant for keeping cordial relation with him, he intended to marry with her. The victim had informed the applicant when she will be major with consent of her family she will enter into a marriage with him. On 19.09.2020, when there was no one in the house of victim, applicant visited her house and committed rape with her on the pretext of marriage. As applicant has promised the victim for marriage, she told no one about the alleged incident, after which, multiple times the applicant committed rape with her even in a hotel namely White Rose situated at Kotra Road, Raigarh on the pretext of marriage. The last incident of rape was committed with victim on 13/07/2024. When the family of victim came to know about the relation of the applicant and victim, they asked the applicant to marry with victim, but now the applicant is denying for marriage with her. Based upon report, Crime No. 353/2024, for offence under Sections 64 (2) (m), 332 (b), 351 (2) of the Bharatiya Nyaya Sanhita and Section 06 of Protection of 3 Children from Sexual Offences is registered against the applicant. The medical examination was done, the applicant was kept in detention and on 02/08/2024 documents with relation to arrest were prepared. During investigation, offence under Sections 3(2) (5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was added. The documents were prepared for trail of the applicant before the Juvenile Justice Board, Raigarh, but on 09/10/2024 the victim preferred an application for referring the Criminal Case no. 172/2024 to the competent criminal Court. On 05/03/2025, the application was allowed and the Juvenile Offence Case no.172/2024 was referred to the Additional Session Judge, F.T.C. (P.O.C.S.O.), Raigarh. Thereafter, the applicant preferred an appeal under Section 101(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 against the order dated 05/03/2025 passed by the Juvenile Justice Board Raigarh, however, on 21/05/2025, learned Court below dismissed the appeal of the applicant without properly appreciating the appeal of the applicant. Hence the present revision.

#4. Learned counsel for the applicant submits that learned Court below ought to have appreciated that the victim had not preferred an application for reference of the case to the competent Court under any statutory provisions. On the date of first incident of rape, the applicant was minor aged about 16 years and 07 months. The age of the applicant was determined by the Authority during the 4 commission of offence, on the other hand only the final report was directed to be prepared by the Authority, nо conclusion with respect to age of the applicant can be given by the Authority. As per Section 518 of the Bharatiya Nagarik Suraksha Sanhita procedure is laid down but it is not followed by the Board as no medical examination of applicant has been conducted. The procedure with respect to examination of age of the Juvenile is provided in the Act itself which was not followed and the Board has wrongly referred the case to the competent Court below. As per school certificate, the applicant was minor on the date of offence, but the Court below and the Board have wrongly appreciated the fact with respect to age of applicant. Court below has not appreciated that cases of rape involving minor offenders (those under 18 years of age) are primarily tried in the Juvenile Justice Board (JJB). The JJB is a special body established under the Juvenile Justice (Care and Protection of Children) Act, 2015, to deal with children in conflict with the law. The JJB conducts an inquiry to determine the facts of the case and assess the child's involvement. If the child is 16 years or older at the time of the offense, the JJB may conduct a preliminary assessment to evaluate the child's maturity and understanding of the consequences of their actions. Such procedure was not followed by the Board. Court below has not appreciated that the age of the offender at the time of the offence is the determining factor, not 5 their age at the time of trial. If a person is a child at the time of the offense, the JJB is obligated to conduct an inquiry into the matter, regardless of whether the offense is under the POCSO Act or any other law as per the judgment of Dr. Subramanian Swamy vs. Raju, Thr. Member Juvenile Justice Board. Hence, it is prayed that impugned order dated 21/05/2025 (Annexure P-1) may be set- aside/quashed and matter be remanded back to the concerned Board for trial of the applicant. In support of his contention, he places reliance upon the decision of Hon’ble Supreme Court in case of Thirumoorthy versus State Represented by the Inspector of Police (Criminal Appeal No. 1773 of 2024 & Om Prakash @ Israel @ Raju @ Raju Das versus Union of India & Anr (CRA No.4229/2024) Relevant portion of decision of case of Thirumoorthy (supra) reads as under: “29. The provisions contained in Section 9(1) stipulate that when a Magistrate not empowered to exercise the power of the Board under the Act is of the opinion that the person alleged to have committed the offence and brought before him is a child, he shall, without any delay, record such opinion and forward the child immediately along with the record of such proceedings to the Board having jurisdiction.

#30. Sections 9(2) and 9(3) cast a burden that where the Court itself is of the opinion that the person was a child on the date of commission of the offence, it shall conduct an inquiry so as to determine the age of such 6 person and upon finding that the person alleged to have committed the offence was a child on date of commission of such offence, forward such person to the Board for passing appropriate orders and sentence, if any, passed by the Court shall be deemed to have no effect.

#5. Learned State Counsel as well as learned counsel for the victim/complainant contended that the last date of incident of rape was of 13.07.2024 and at that time age of the applicant was 20 years and 05 months, therefore, it is case of rape, hence, applicant is not entitled to get the benefit of the Juvenile Justice (Care and Protection of Children) Act, 2015. In support of his contention, learned counsel for the victim places reliance upon the decision of the Apex Court in case of Shri Ganesh vs State of Tamil Nadu, (2017 3 SCC 280). Relevant of said decision reads as under: “10. In the present case the trial court took into account the documentary evidence as contemplated in the statutory provisions and returned a finding that the date of birth of the appellant was 19.10.1991. During the course of its judgment the High Court could not find such conclusion to be vitiated on any ground. In the face of the relevant documentary evidence, there could be no medical examination to ascertain the age of the appellant and as such the consequential directions passed by the High Court were completely unwarranted. Further, if the allegations of the prosecution are that the offence under Section 376 7 IPC was committed on more than one occasion, in order to see whether the appellant was juvenile or not, it is enough to see if he was juvenile on the date when the last of such incidents had occurred. The trial court was therefore justified in going by the assertions made by the victim in her cross examination and then considering whether the appellant was juvenile on that date or not.

#6. Heard learned counsel for the parties and perused the revision including the impugned order.

#7. For ready reference, Section 9 of the Juvenile Justice (Care and Protection of Children) Act, 2015 reads as under: “Section 9. Procedure to be followed by a Magistrate who has not been empowered under this Act --

#1. xxxxxx

#2. xxxx

#3. If the Court finds that a person has committed an ofence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.”

#8. Section 518 of the BNSS, 2023 (corresponding Section 472 of CrPC) reads as under: “518. Continuing Offence.-- In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. 8

#9. Perusal of records shows that as per applicant’s High School Certificate Examination 2020, his date of birth is 11.02.2004. Accordingly to the prosecution, the applicant has committed rape with the victim firstly on 19.09.2020 and at that time, age of the applicant was 16 years and 07 months. The applicant has committed rape with the victim lastly on 13/07/2024 and at that time age of the applicant was 20 years and 06 months. Applicant has continuing committed rape with the applicant from 19.09.2020 to 13.07.2024.

#10. In case at hand, it is crystal clear from the prosecution/allegations that on the date when the last incident of rape was occurred, age of the appellant was more than 20 years, therefore, this Court is of the considered opinion that the impugned order passed by the Court below does not suffer from any illegality, perversity or jurisdictional error warranting interference.

#11. Accordingly, the instant criminal revision is hereby dismissed. CC as per rules. (Arvind Kumar Verma) Sd/- Judge J/-