Jharkhand High Court
Naresh Sao vs State Of Jharkhand on 20 September, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 2370 of 2022
Naresh Sao, S/o Shree Gunnu Saw, aged about 45 years, resident of
Banka, Katkamdag, P.O. Sultana, P.S. Katkamdag, Distt. Hazaribagh
... Petitioner
-Versus-
State of Jharkhand ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Mahesh Tewari, Advocate
For the Opposite Party-State : Mr. Abhay Kumar Tiwari, A.P.P.
For the Informant : Mr. Pankaj Kumar Ravi, Advocate
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04/20.09.2022. Heard Mr. Mahesh Tewari, learned counsel for the petitioner,
Mr. Abhay Kumar Tiwari, learned counsel for the State and Mr. Pankaj
Kumar Ravi, learned counsel for the informant.
2. This petition has been filed for quashing the order of the cognizance
dated 24.06.2022 arising out of Katkamdag P.S. Case No.71/2022 registered
for the offence under Section 376 of the Indian Penal Code and Section 4 of
POCSO Act, and subsequently cognizance has been taken under Section 376
of the Indian Penal Code and Section 4 and 6 of POCSO Act against the
petitioner, pending in the court of the learned Special Judge, POCSO Act,
Hazaribag.
3. Mr. Mahesh Tewari, learned counsel for the petitioner submits that the
police has investigated the case and submitted charge-sheet under Section
376 of the Indian Penal Code, however the learned court has also taken
cognizance under Section 4 and 6 of POCSO Act against the petitioner. He
further submits that the police has already come to the conclusion in view
of the medical report that the victim was aged about 20 years, however the
learned court has categorically come to the conclusion that the age of the
girl was 15 years. He submits that that part of the order is bad in law and
this Court may interfere and quash the impugned order.
4. On the other hand, learned counsel for the informant submits that
there is no illegality in the impugned order. He further submits that in the
POCSO Act, there is no fixed criteria for determining the age of the person.
He also submits that there are possibility of two views that the Court should
lean in favour of holding the accused to be a juvenile in borderline cases.
He relied upon the judgment passed by the Hon'ble Supreme Court in
Mukarrab Etc. vs. State of U.P. in Criminal Appeal Nos.1119-1120
of 2016 arising out of SLP (Crl.) Nos.6754-55 of 2014 decided on
30.11.2016.
5. Paragraph 12 of the said judgment is quoted herein below:
"12. This Court in Arnit Das (1) v. State of Bihar [Arnit Das
(1) v. State of Bihar, (2000) 5 SCC 488 : 2000 SCC (Cri) 962] ,
clarified that the review of judicial opinion shows that the
Court should not take a hypertechnical approach while
appreciating evidence for determination of age of the accused.
If two views are possible, the Court should lean in favour of
holding the accused to be a juvenile in borderline cases. This
approach was further reiterated by this Court in Rajinder
Chandra v. State of Chhattisgarh [Rajinder Chandra v. State of
Chhattisgarh, (2002) 2 SCC 287 : 2002 SCC (Cri) 333] , in
which it laid down that the standard of proof for age
determination is the degree of probability and not proof
beyond reasonable doubt."
6. Learned counsel for the State submits that there is no illegality in the
impugned order and the learned court has rightly taken the cognizance.
7. In view of the above submissions of the learned counsel for the
parties, this Court has gone through the evidence on record and finds that
the learned court has considered the statement under Section 164 Cr.P.C. of
the girl where she has disclosed that her age is about 15 years at the time
of occurrence. In paragraph 10 of the case diary, the statement of the
mother of the victim has been recorded and she has stated that when she
came back after her work from the field, the victim who is differently abled
person aged about 15 years shared about the incident. There are serious
allegations against the petitioner. Even if the argument of Mr. Mahesh
Tewari, learned counsel for the petitioner is accepted, the petitioner is
having opportunity to prove his case in the trial court as to whether the
victim was minor or not. Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 prescribed the procedure for
determining the age. Moreover, the accused is uncle of the victim. The duly
constituted Board has not examined the victim and she was examined only
by the police at his own.
8. In view of the above facts, reasons and analysis, no case of
interference is made out. Accordingly, this petition stands dismissed.
(Sanjay Kumar Dwivedi, J.)
Ajay/
