POCSO conviction

Supreme Court: In an appeal challenging judgment passed by Madras on 15-04-2021 dismissing criminal appeal under Section 374(2) of the Criminal Procedure Code, 1973 (‘CrPC’) to affirm conviction and sentence awarded by Trial Court for offences under Sections 363, 342 and 302 read with Section 201 of the Penal Code, 1860 (‘IPC’) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’), the Division Bench of BR Gavai and Sandeep Mehta, JJ. allowed the appeal and reversed his conviction due to non-adherence with the procedural mandate under the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJ Act’).

Factual Matrix

In the instant case, a 6-year-old girl went missing on 2-07-2016 and a complaint was lodged by her father on 3-07-2016 at 7 AM alleging that he took his daughter to a shop the previous day and asked her to return home. When he reached home half an hour later, he came to know that his daughter had not returned by then and could not be traced out in the locality. During police investigation, doubts were raised against the accused based on statements of neighbours who saw him with the child and he was apprehended while trying to run away. It was alleged that the accused confessed his guilt and victim’s dead body was found concealed in a wide-mouthed aluminium vessel in the accused’s home. Post mortem report reflected death due by asphyxiation with injuries to genitalia and other parts.

The accused was found to be a juvenile based on date of birth recorded in school documents — being a child in conflict with law (‘CICL’) as per Section 2(13) of JJ Act. Despite the said fact, chargesheet against him was filed directly before the Sessions Court, the accused denied allegations levelled against him while claiming to be innocent, but neither oral nor documentary evidence was led in defense. The Trial Court proceeded with the trial and convicted him vide judgment and order dated 18-02-2019.

The accused’s mother filed a petition before the Special Court, POCSO Act Cases praying for reduction in sentence or consideration for early release based on his good behavior, which led the Special Court to hold an inquiry and ultimately dismiss the said application on 29-01-2021. The accused approached the High Court challenging his conviction and sentence, but the same got rejected on 15-04-2021. Thus, the accused approached the Court through the instant SLP.

Court’s Analysis

Considering the undisputed fact that the accused was a CICL on the date of the incident, the Court looked at the alleged non-adherence to mandatory requirements of the JJ Act. The Court highlighted that the fact of accused being a CICL was known to the Investigating Officer, prosecution as well as the Trial Court from the very inception of proceedings.

The Court perused the relevant provisions of JJ Act required to be followed in case of prosecution of a CICL, namely Section 3 laying general principles to be followed in administration of Act, Section 9 for procedure followed by Magistrate, Section 15 for preliminary assessment into heinous offences, Section 18 on orders regarding CICL, and Section 19 laying the powers of the Children’s Court.

The Court pressed upon the Magistrate not empowered to exercise power of the Board to record opinion about person to be a child to immediately forward the child to the Board having jurisdiction. It further hinted towards Sections 9(2) and 9(3) casting duty upon Court to conduct inquiry to determine age of suspected minor. Coming to the instant case, the Court said that even if the Sessions Court was designated as a Children’s Court, it had to forward the child to the Board concerned for further directions. The Court clarified that the offences charged were within the category of ‘heinous offences’ under Section 2(33) of JJ Act. The Court cited provisions for Board’s duty under Section 15(1), 15(2) and 18(3) of JJ Act. The Court further cited Ajeet Gurjar v. State of M.P., 2023 SCC OnLine SC 1255 wherein, the procedure provided under Sections 15 and 19 has been held to be mandatory.

The Court observed that “In absence of a preliminary assessment being conducted by the Board under Section 15, and without an order being passed by the Board under Section 15(1) read with Section 18(3), it was impermissible for the trial Court to have accepted the charge sheet and to have proceeded with the trial of the accused.” The Court found the proceedings undertaken by the Sessions Court in conducting trial of the CICL to be in gross violation of the mandate under JJ Act and held the entire proceedings as vitiated.

The Court further hinted towards the Trial Court’s attempt to validate the ‘grossly illegal proceedings’ by dealing with the accused as per JJ Act provisions on the aspect of sentencing. The Court explained that “ex facie, the said action which seems to be taken by way of providing an ex post facto imprimatur to the grossly illegal trial does not stand to scrutiny because the very foundation of the prosecution case is illegal to the core.” The Court held all the proceedings against the accused of being vitiated in complete violation of mandatory procedure prescribed under JJ Act. The Court found the decision in Karan v. State of M.P., (2023) 5 SCC 504 and Pawan Kumar v. State of U.P., 2023 SCC OnLine SC 1492 to be distinguishable from the instant case.

Considering that in Ajeet Gurjar (supra), the Court had remitted the matter to Sessions Court, the Court looked at the instant facts and expressed that “in the present case, there is yet another hurdle which convinces us that it is not a fit case warranting de novo proceedings against the accused” and added that directing such exercise would be sheer futility since he was nearly 23 year old, and that “ at this stage, there remains no realistic possibility of finding out the mental and physical capacity of the accused appellant to commit the offence or to assess his ability to understand the consequences of the offence and circumstances in which he committed the offence in the year 2016”.

Therefore, the Court quashed and set aside the impugned judgment and directed the accused appellant to be released forthwith.

[Thirumoorthy v. State represented by the Inspector of Police, 2024 SCC OnLine SC 375, decided on 22-03-2024]

Judgment by: Justice Sandeep Mehta

Know Thy Newly Appointed Supreme Court Judge – Justice Sandeep Mehta

Advocates who appeared in this case :

Buy Protection of Children from Sexual Offences Act, 2012   HERE

protection of children from sexual offences act, 2012

Buy Penal Code, 1860   HERE

penal code, 1860

Buy Code of Criminal Procedure, 1973  HERE

Code of Criminal Procedure

Must Watch

maintenance to second wife

bail in false pretext of marriage

right to procreate of convict

Criminology, Penology and Victimology book release

Join the discussion

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.