Mohan Bagri vs The State Of Madhya Pradesh
2023 Latest Caselaw 9393 MP

                                           1




     IN THE HIGH COURT OF MADHYA PRADESH
                               AT I N D O R E
                                     BEFORE
            HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                     DHARMADHIKARI
                                          &
                  HON'BLE SHRI JUSTICE HIRDESH

                        ON THE 22nd OF JUNE, 2023

                   CRIMINAL APPEAL No. 8006 of 2022

BETWEEN:-
MOHAN BAGRI S/O BHONAJI, AGED ABOUT 24 YEARS, VILLAGE
PIPLYA BIJAREL, POLICE STATION - JEERAPUR, DISTRICT RAJGARH
(MADHYA PRADESH)

                                                                   .....APPELLANT

(SHRI MANURAJ SINGH, ADVOCATE)


AND
THE STATE OF MADHYA PRADESH, STATION HOUSE OFFICER
THROUGH POLICE STATION - JEERAPUR, DISTRICT RAJGARH
(MADHYA PRADESH)

                                                                  ....RESPONDENT

(SHRI K. K. TIWARI, GOVERNMENT ADVOCATE)
(SHRI SAMEER SAXENA, ADVOCATE FOR OBJECTOR)
----------------------------------------------------------------------------------------
       This appeal coming on for orders this day, JUSTICE SUSHRUT

ARVIND DHARMADHIKARI passed the following:
                                     2
                                ORDER

Heard finally with the consent of both the parties.

2. The present appellant under Section 374 of Code of Criminal Procedure, 1973 has been filed being aggrieved by the judgment and order of conviction dated 29/07/2022 passed by Special Judge, The Protection of Children from Sexual Offences Act, 2012 (in short - POCSO Act, 2012), Rajgarh, District-Rajgarh in S.T. No.422/2019 whereby the appellant has been convicted for the offence punishable under Section 376(3) of IPC sentencing him imprisonment for 20 years RI and fine of Rs.5,000/-, default of payment of fine, one months RI and Sections 5(k) readwith 6, 5(I) readwith 6 and 5(j)(ii) readwith 6 of the POCSO Act, 2012 sentencing him imprisonment for 20 years RI and fine of Rs.5,000/-, Rs.5,000/- and Rs.10,000/- and in default of payment of fine, one month RI, one month RI and three months RI respectively.

3. Learned counsel for the appellant at the out-set, had pointed-out that, the incident which led to the conviction of appellant took place on 13/08/2019. The appellant was about below than 18 years of the age. In this regard, the appellant moved an application on 18/02/2022 under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 seeking transfer of the trial, which was rejected. Being aggrieved, the appellant filed Criminal Revision No.2323/2022 before this Court and vide order dated 17/08/2022 the Criminal Revision filed by the appellant was allowed and it was held that learned trial Court has committed an error in rejecting the application filed by the appellant and also held that appellant had not attained the age of 18 years as such and also he was child in conflict with law. However, during pendency of the revision, the learned trial Court concluded the trial and passed the judgment and order of conviction sentencing the appellant as aforesaid.

4. Learned Government Advocate for the respondent/State submitted that this Court vide order dated 11/01/2022 relying on the judgment of Ashok Vs. State of M.P. SLP (Cri.) No.643/2020 wherein in the similar facts and circumstances, the Apex Court has directed the concerned Sessions Court to examine authenticity/genuineness sought to be relied by the appellant therein and submits the report before the Apex Court.

5. The Apex Court in the case of Ashok (Supra) has already held that the claim of juvenility can thus be raised before any Court, at any stage, even after final disposal of the case and if the Court finds a persons to be a juvenile on the date of commission of the offence, it is to forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a Court, shall be deemed to have no effect.

6. Thus, in view of the judgment of Apex Court in the case of Ashok (Supra) the judgment and order of conviction dated 29/07/2022 against the appellant cannot be allowed to stand. Accordingly, the judgment impugned dated 29/07/2022 passed by Special Judge, (POCSO Act, 2012), Rajgarh, District-Rajgarh in S.T. No.422/2019 whereby the appellant has been convicted for the offence punishable under Section 376(3) of IPC sentencing him imprisonment for 20 years RI and fine of Rs.5,000/-, default of payment of fine, one months RI and Sections 5(k) readwith 6, 5(l) readwith 6 and 5(j)(ii) readwith 6 of the POCSO Act, 2012 sentencing him imprisonment for 20 years RI and fine of Rs.5,000/-, Rs.5,000/- and Rs.10,000/- and in default of payment of fine, one month RI, one month RI and three months RI respectively is hereby set-aside.

7. The record of Court below be sent back to the concerned trial Court with a direction that challan be returned to the prosecution. The prosecution may file the charge-sheet against the appellant before the

Competent Authority/Juvenile Board in due course, if so advised. The prosecution shall be at liberty to raise objection under Section 15 of the Act, 2015 before the Juvenile Board.

8. Since the appellant is in jail, therefore, the authorities concerned are directed to release the appellant from jail forthwith, if not required in any other case.

9. Certified copy of this order be forwarded to the concerned trial Court for necessary compliance forthwith.

10. In the result, appeal stands allowed and disposed of.

C.C. as per rules.

      (S. A. DHARMADHIKARI)                               (HIRDESH)
              JUDGE                                         JUDGE

Aiyer*
JAGADI   Digitally signed by JAGADISHAN AIYER
         DN: c=IN, o=HIGH COURT OF MADHYA
         PRADESH BENCH INDORE, ou=HIGH
         COURT OF MADHYA PRADESH BENCH



SHAN
         INDORE,
         2.5.4.20=a447e9805af75a6ef46d4975800d
         abec4b062d9acd7546137cc740fb3cea160
         3, postalCode=452001, st=Madhya
         Pradesh,




AIYER
         serialNumber=792833C4F82AE97E2F684A
         6820ED44AD2B4B44A3D238FD6282963DA
         8B6BF7ADD, cn=JAGADISHAN AIYER
         Date: 2023.06.25 22:04:30 -07'00'