[Cites 10, Cited by 0]
Madras High Court
Thean @ Divakar vs The State Represented By Inspector Of ... on 20 April, 2026
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
Crl.M.P.No.5456 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.04.2026
CORAM:
THE HON'BLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.M.P.No.5456 of 2026
in Crl.A.No.219 of 2026
Thean @ Divakar ... Petitioner
Vs.
The State represented by,
The Inspector of Police,
Kudiyatham Taluk Police Station,
Vellore District. ... Respondent
PRAYER: Criminal Miscellaneous Petition is filed under Section 430(1) of
the Bharatiya Nagarik Suraksha Sanhita/Section 389(1) of Cr.P.C., to
suspend the sentence imposed on the petitioner/appellant in Spl.S.C.No.156
of 2021 dated 28.10.2025 by the Mahila Court (Fast Track Mahila Court),
Vellore, and enlarge the petitioner on bail pending disposal of the criminal
appeal.
For Petitioner : Mr.D.Prasanna Kumar
For Respondent : Ms.J.R.Archana
Government Advocate (Criminal Side)
ORDER
This Criminal Miscellaneous Petition has been filed seeking
suspension of sentence of imprisonment, imposed by the learned Sessions
https://www.mhc.tn.gov.in/judis
Judge, Mahila Court (Fast Track Mahila Court), Vellore, in Spl.S.C.No.156
of 2021, vide judgment dated 28.10.2025.
2. The brief facts of the case are as follows:-
2.1. Based on the complaint given by the de facto
complainant/PW1 alleging that her minor daughter/victim (PW4), aged
about 16 years, is missing from 14.04.2021, a case in Crime No.196 of 2021
came to be registered on 20.04.2021 for “girl missing”.
2.2. During the course of investigation, it came to light that
the petitioner/appellant kidnapped the minor daughter/victim (PW4) of the
de facto complainant/PW1, kept her in illegal detention and committed
penetrative sexual assault on her. Hence, based on the statement recorded
from the victim/PW4, the case was altered to one under Sections 363, 366,
376(2)(n) of IPC, Section 6 of the Protection of Children from Sexual
Offences Act, 2012 and Section 9 of the Prohibition of Child Marriage Act,
on 09.07.2021.
2.3. After completion of investigation, the investigating
officer filed a charge sheet and the same was taken on file as
Spl.S.C.No.156 of 2021 on the file of the Mahila Court (Fast Track Mahila
Court), Vellore.
https://www.mhc.tn.gov.in/judis
2.4. On issuance of summons, the accused appeared before
the Court and in compliance of Section 207 of Cr.P.C., copies of relied
upon documents were furnished to him.
2.5. After hearing the counsel on both sides, charges were
framed against the accused. During initial questioning in respect of the
incriminating materials, the accused denied the charges and sought trial.
2.6. On the side of the prosecution, PW1 to PW22 were
examined and Ex.P1 to Ex.P14 were marked. On the side of the defence,
neither any witness was examined nor any document marked.
2.7. The trial Court, after hearing the arguments on both
sides and upon consideration of the entire materials on record, found the
petitioner/appellant guilty of the offences charged and convicted and
sentenced him vide judgment dated 28.10.2025 as follows :-
Under Section Sentence
366 IPC Five years rigorous imprisonment and
fine of Rs.10,000/-, in default, to
undergo one month simple
imprisonment.
9 of the Prohibition of Child Two years rigorous imprisonment
Marriage Act
5(l) r/w 6 of the POCSO Twenty years rigorous imprisonment
Act and fine of Rs.1,00,000/-, in default, to
undergo three months simple
imprisonment.
The aforesaid sentences were ordered to run concurrently.
https://www.mhc.tn.gov.in/judis
3. The submissions of the learned counsel appearing for the
petitioner/appellant are as follows:-
3.1. The trial Court failed to take into consideration the fact
that the prosecution has not proved the foundational facts in this case.
3.2. It is the case of a mutual love affair and mere elopement.
The statement has been recorded from the victim/PW4 under Section 164
Cr.P.C., wherein she specifically stated that the petitioner did not subject
her to any physical assault, much less sexual assault.
3.3. Further, even in her statement before the Court, the
victim/PW4, other than making any specific reference that she had been
subjected to sex torture, has not spoken anything as if the
petitioner/appellant had committed penetrative sexual assault.
3.4. Further, the age of the victim/PW4 has not been
conclusively proved by legal evidence. In such circumstances, the trial
Court has erred in convicting the petitioner/appellant.
3.5. There are arguable points available in the Criminal
Appeal, which is unlikely to be taken up for final hearing in the near future
and the petitioner/appellant has a fair chance of succeeding in the appeal.
3.6. The fine amount has been paid by the
petitioner/appellant on 04.11.2025. The petitioner/appellant has been
https://www.mhc.tn.gov.in/judis
suffering incarceration in the Central Prison, Vellore. Hence, the sentence
imposed on him may be suspended and he may be enlarged on bail.
4. The learned Government Advocate (Criminal Side)
appearing for the respondent submitted as follows:
4.1. The petitioner/appellant and the victim/PW4 hail
from the same village and were known to each other.
4.2. The petitioner/appellant allegedly kidnapped the
victim/PW4 from the lawful guardianship of her parents and took her to
Andhra Pradesh, where he kept her in illegal detention for more than two
months and committed sexual assault on her.
4.3. The trial Court, after taking into consideration the
oral and documentary evidence adduced by the prosecution, including the
medical evidence, rightly found the petitioner/appellant guilty and
convicted and sentenced him, as stated above. Hence, the petition seeking
suspension of sentence may be dismissed.
5. Heard the learned counsel for the petitioner/appellant and
the learned Government Advocate (Criminal Side) appearing for the
respondent and perused the materials on record.
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6. Considering the facts and circumstances of the case and
also the submissions made by the learned counsel on either side and taking
note of the period of incarceration undergone by the petitioner/appellant,
this Court is of the view that the petitioner/appellant has made out a prima
facie case for the grant of suspension of sentence and bail. Therefore, the
sentence of imprisonment can be suspended and the petitioner/appellant can
be granted bail on certain conditions. Accordingly, pending disposal of the
appeal, the substantive sentence of imprisonment alone is suspended and the
petitioner/appellant is enlarged on bail, subject to the following conditions:-
“(i) The petitioner/appellant shall execute a bond
for a sum of Rs.15,000/- (Rupees Fifteen Thousand only),
with two sureties, each for a like sum to the satisfaction
of the learned Sessions Judge, Magalir Neethimandram
Court (Fast Track Mahila Court), Vellore;
(ii) The petitioner/appellant shall appear before
the trial Court on the first working day of every English
calendar month at 10.30 a.m., until further orders;
(iii) It is made clear that the petitioner/appellant
shall not communicate with either the victim or her
family members and he shall not enter the jurisdictional
limits of the Kudiyatham Taluk Police Station, Vellore
District, until further orders.”
https://www.mhc.tn.gov.in/judis
7. Accordingly, the Criminal Miscellaneous Petition stands
ordered.
20.04.2026
ham
To
1. The Sessions Judge,
Magalir Neethimandram (Fast Track Mahila Court)
Vellore.
2. The Inspector of Police,
Kudiyatham Taluk Police Station,
Vellore District.
3. The Superintendent,
Central Prison,
Vellore.
4. The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
A.D.JAGADISH CHANDIRA, J.
ham
20.04.2026
https://www.mhc.tn.gov.in/judis
