Abhay Singh Thakur vs State Of Chhattisgarh
2022 Latest Caselaw 557 Chatt

                                    1

                                                                     AFR

            HIGH COURT OF CHHATTISGARH, BILASPUR

                     Order Reserved on 10.01.2022

                     Order Delivered on 01.02.2022

                          CRR No. 896 of 2021

    Abhay Singh Thakur, S/o Late Komal Singh Thakur, aged about 20
      Years, R/o Samridhhi Vihar Colony, Yadunandan Nagar, Tifra, Police
      Station Sirgitti, Bilaspur, District Bilaspur, Chhattisgarh.

                                                              ----Applicant

                                 Versus

   1. State of Chhattisgarh, Through Station House Officer, Police Station
      Sirgitti Bilaspur, District Bilaspur, Chhattisgarh.

   2. ABC, D/o DEF, aged about 14 Years, R/o Seepat Chowk, Bilapsur,
      District Bilaspur, C.G.

                                                         ---- Respondents

CRR No. 850 of 2021

 Ajay Singh Thakur, S/o Late Komal Singh Thakur, aged about 23 Years, R/o Samridhhi Vihar Colony, Yadunandan Nagar, Tifra, Police Station Sirgitti, Bilaspur, District Bilaspur, Chhattisgarh.

----Applicant

Versus

1. State of Chhattisgarh, Through Station House Officer, Police Station Sirgitti, Bilaspur, District Bilaspur, Chhattisgarh.

2. ABC, D/o DEF, aged about 14 Years, R/o Seepat Chowk, Bilaspur, District Bilaspur, C.G.

---- Respondents

For Applicants Mr. Rajeev Shrivastava, Senior Advocate with Mr. Malay Shrivastava, Mr. Sourabh Sahu and Ms. Isha Jajodiya, Advocates.

For State        Dr. (Ms.) Veena Nair, Deputy A.G.
For Objector     Mr. Vinod Kumar Ajay, Advocate.


              Hon'ble Shri Justice Gautam Chourdiya
                             C A V Order

   CRR No.896 of 2021

1. Challenge in this revision petition filed by the applicant Abhay Singh

Thakur under Section 397 read with 401 of Cr.P.C. is to the order

dated 18.11.2021 passed by the Special Judge (Protection of Children

from Sexual Offences) Act, 2012 (for short 'POCSO Act'), Bilaspur,

C.G. in Special Criminal Case (POCSO) No.118/2021, rejecting his

application under Section 9(2) of the Juvenile Justice (Care and

Protection of Children) Act, 2015 (for short 'Juvenile Justice Act').

CRR No.850 of 2021

2. Challenge in this revision petition filed by the applicant Ajay Singh

Thakur under Section 397 read with 401 of Cr.P.C. is to the order

dated 22.10.2021 passed by the Special Judge (Protection of Children

from Sexual Offences) Act, 2012, Bilaspur, C.G. in Special Criminal

Case (POCSO) No.118/2021, framing charges against him under

Sections 294, 325, 506-Part II & 427 of Indian Penal Code and

Section 21 of the POCSO Act.

3. Case of the prosecution, in brief, is that the prosecutrix lodged a

written report at Police Station Sirgitti, District Bilaspur, C.G. on

09.08.2021 alleging therein that on 05.10.2015 when she was minor,

the applicant Abhay Singh Thakur subjected her to forcible sexual

intercourse and thereafter continued to have such relations with her

on the pretext of marriage. At the time of incident, the prosecutrix and

the applicant Abhay Singh Thakur were minor, below the age of 18

years but during the continuation of this offence and prior to lodging of

the FIR, applicant Abhay Singh Thakur became major whereas the

prosecutrix was minor at that time and further, during continuation of

this offence, both of them became major.

Allegation against the applicant Ajay Singh Thakur is that as the

applicant Abhay Singh Thakur subsequently refused to marry the

prosecutrix, on 08.08.2021 when she was going to inform about the

act of applicant Abhay Singh Thakur to his mother, the applicant- Ajay

Singh Thakur (elder brother of applicant-Abhay Singh Thakur) stopped

her, beat her and threatened her of life if she disclosed about the

incident to anyone.

4. Learned counsel for the applicants submits that the trial Court was not

justified in rejecting the application u/s 9(2) of the Juvenile Justice Act

of applicant- Abhay Singh Thakur because at the time of incident in

the year 2015, the prosecutrix and applicant Abhay Singh Thakur were

minor and as such the trial of the applicant should be by the Juvenile

Justice Board in view of Sections 5 & 6 of the Juvenile Justice Act. He

submits that the trial Court has also committed an illegality by wrongly

applying the principles of law laid down in Vikas Choudhary vs.

State (NCT Delhi), 2010 8 SCC 508 as in the said matter, the date of

commission of the offence was 19.01.2003 and at that point of time,

the Act of 2015 was not in force. Even as per the said judgment, the

last date of commission of offence is to be taken into account. If this

analogy is applied in the present case, the FIR was lodged on

09.08.2021 and in the year 2021 both the applicant and the

prosecutrix became major. As such, the judgment in the matter of

Vikas Choudhary (surpa) is not applicable to the facts of the present

case.

So far as applicant Ajay Singh Thakur is concerned, it is

submitted that a bare perusal of the material available with the charge

sheet, it is evident that the applicant has not done any act constituting

the offence under Section 21 of the POCSO Act because on the date

when dispute arose between the prosecutrix and the applicant Ajay

Singh Thakur, the prosecutrix was major. Further, there is nothing to

show commission of the offence by this applicant making him liable for

being charged under Sections 294, 323, 506-Part II and 427 of IPC.

The trial Court while framing the aforesaid charges has not applied the

judicial mind to the overall material placed before him and, therefore,

the impugned order dated 22.10.2021 is liable to be set aside.

5. On the other hand, learned counsel for the State supports the

impugned orders and submits that the trial Court having regard to all

the relevant factors and the provisions of the Juvenile Justice Act as

also the POCSO Act has rightly rejected the application under Section

9(2) of the Juvenile Justice Act of the applicant- Abhay Singh Thakur

and framed charges against the applicant Ajay Singh Thakur.

6. Prosecutrix appeared along with her counsel and raised objection to

these revision petitions.

7. Heard learned counsel for the parties and perused the material

available on record.

8. It is not in dispute that on 5th October, 2015 for the first time the

applicant Abhay Singh Thakur subjected the prosecutrix to forcible

sexual intercourse. During investigation, the police seized progress

report of the prosecutrix of Class- 2nd which bears her date of birth as

05.11.2002. Likewise, as per the certificate-cum-marksheet of

applicant Abhay Singh Thakur of High School, his date of birth is

11.12.1999. Thus, it is also undisputed that on the first date of incident

i.e. 05.10.2015, both the applicant and the prosecutrix being below the

age of 18 years were minor. As per the prosecution case, the

prosecutrix was subjected to sexual intercourse by the applicant

Abhay Singh Thakur from 05.10.2015 to 27.07.2021. In the matter of

Jaspal Singh vs State of Punjab passed in Criminal Revision

No.388 of 2014, order dated 06.02.2014, the High Court of Punjab

and Haryana at Chandigarh, considering the fact that the accused

committed rape with the prosecutrix from 1996 to 2002 even after he

attained the age of majority, keeping in view the ratio of the judgment

of Apex Court in the matter of Vimal Chadha vs. Vikas Chaudhary

and others passed in Case No.:Appeal (crl.) 966 of 2008, held that

for determining the age of the accused with regard to his juvenility, the

entire period of commission of offence from 1996 to 2002 as well as

the last date 10.03.2002 is relevant. Thus, the High Court upheld the

order of the trial Court rejecting the application of the petitioner for

declaring him juvenile for the purpose of trial of the offence alleged

against him.

9. In the present case also, as discussed above, the applicant Abhay

Singh Thakur subjected the prosecutrix to sexual intercourse from

05.10.2015 to 27.02.2021, though on the first date of incident both of

them were minor but during continuation of this offence both turned

major. As such, in view of the judgment in the matter of Jaspal Singh

(supra), this Court is of the opinion that the trial Court has not

committed any illegality or perversity in rejecting the application Abhay

Singh Thakur under Section 9 (2) whereby he had prayed for trial by

the Juvenile Justice Board. When any offence is committed by the

Juvenile and during continuation of the offence, the juvenile becomes

major, he cannot claim the benefit of juvenility and the doctrine of

merger comes into play.

10. So far as the revision petition filed by the applicant Ajay Singh Thakur

is concerned, the prosecutrix has specifically stated in the FIR that on

08.08.2021 while she was going to inform the mother of applicant

Abhay Singh Thakur about his act, the applicant Ajay Singh Thakur

stopped her, beat her as a result of which she suffered injury on her left

hand and also damaged her vehicle. From the contents of the FIR, it is

evident that applicant Ajay Singh Thakur was well aware of the fact that

his younger brother (applicant- Abhay Singh Thakur) was having

physical relation with the prosecutrix and when the applicant Abhay

Singh Thakur refused to marry her and she was going to complain

against him to his mother, this applicant-Ajay Singh Thakur prevented

her from doing so. In her statement under Section 164 of Cr.P.C. she

has stated in detail about the act of applicant- Ajay Singh Thakur. As

per MLC of the prosecutrix, she suffered fracture on upper end of left

humerous.

11. Sections 19 & 21 of the POCSO Act reads as under:-

"19. Reporting of offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any person (including the child), who has apprehension that an

offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,-

(a) the Special Juvenile Police Unit; or

(b) the local police.

(2) Every report given under sub-section (1) shall be-

(a) ascribed an entry number and recorded in writing;

(b) be read over to the informant;

(c) shall be entered in a book to be kept by the Police Unit.

(3) Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section (2) in a simple language so that the child understands contents being recorded.

(4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same.

(5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection (including admitting the child into shelter home or to the nearest hospital) within twenty- four hours of the report, as may be prescribed.

(6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.

(7) No person shall incur any liability, whether civil or criminal, for

giving the information in good faith for the purpose of sub- section (1).

21. Punishment for failure to report or record a case.- (1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.

(2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.

(3) The provisions of sub-section (1) shall not apply to a child under this Act.

12. Thus, keeping the view the nature of allegations levelled against the

applicant Ajay Singh Thakur in light of the provisions of Sections 19 &

21 of the Act, this Court finds no illegality or perversity in the order

dated 22.10.2021 of the trial Court framing charges under Sections 294,

325, 506-Part II & 427 of Indian Penal Code and Section 21 of the

POCSO Act against him.

13. In the result, both the revision petitions being without any substance

are liable to be dismissed and are hereby dismissed.

Sd/-

Gautam Chourdiya Judge

Akhilesh