'Raises Concerns About Competence Of Judge': Orissa HC Sets Aside Order In POCSO Case Wrongly Treating Major Accused As 'Juvenile'

The Orissa High Court has heavily criticized a Special Court under the Protection of Children from Sexual Offence Act ('POCSO Act') for treating an accused as 'juvenile' and referring the case to Juvenile Justice Board (JJB) despite having enough materials to suggest that the last act in the 'continuing offence' was committed by the accused much after he attained majority. While reprimanding the senior judicial officer (in the cadre of District Judge) for such procedural error, the Single Bench of Dr. Justice Sanjeeb Kumar Panigrahi observed – “The notion that proceedings should commence under juvenile jurisdiction simply because the accused was a minor at the inception of a continuing offence is a proposition so untenable, so discordant with established legal doctrine, that it raises profound concerns, not merely about the fairness and reliability of the adjudication, but about the very competence of the judge who rendered it.”The Court reiterated the settled principle that an individual who has attained the age of majority and is alleged to have committed an offence while being a major cannot seek shelter under the protective mantle of the JJ Act.It thus said, “That the Special Court, in disregard of material facts, could so blithely cast aside the weight of law and reason to refer the accused to the Juvenile Justice Board is not merely an error on judgment but a dereliction so grave that it shakes the very foundation of judicial responsibility”. Case Background On 18.06.2023, the informant/victim (the petitioner) lodged a written report at Burla Police Station alleging that on 20.06.2017, when she was 14 years old, the accused (the respondent herein) forcibly entered into her house, established a physical relationship with her without consent, and took obscene/nude photographs and videos. She further alleged that the accused repeatedly exploited her by threatening to make viral the obscene content if she resisted or disclosed the incident before any third person. He also allegedly demanded money through WhatsApp messages, threatening to release the explicit material. On 16.06.2023, he again forcibly established a physical relationship with the victim, threatening to kill her if she revealed the said incident to anyone. After this incident, the victim proceeded on to lodge the FIR, pursuant to which a case under Sections 376(2)(n) (repeated commission of rape), 376(3) (rape with woman under the age of sixteen), 354-C (voyeurism), 323 (punishment for voluntarily causing hurt), 506 (criminal intimidation) IPC and Section 6 (punishment for aggravated penetrative sexual assault) of the POCSO Act was registered against the accused. Subsequently, the investigation was carried out and statement of the victim was recorded under Section 161 of the CrPC. The police also seized the victim's school certificate, her clothes, and the accused's educational certificate from National Institute of Open Schooling (NIOS). The victim's statement was also recorded under Section 164, CrPC by JMFC, Sambalpur. An application under Section 2(12) of the Juvenile Justice (Care and Protection) Act, 2015 ('JJ Act') was filed by the accused on 26.06.2023 claiming juvenility. The Secondary School Examination Certificate of the accused issued by the NIOS showed his date of birth as 02.08.2002. On 03.07.2023, the Additional Sessions Judge-cum-Special Court under the POCSO Act, Sambalpur noted that the name and date of birth of the accused matched the certificate and his age on the date of the first alleged incident (20.06.2017) was 14 years, 10 months, and 18 days. The Court concluded that the accused was a Child in Conflict with Law (CICL) at the time of the alleged offence and accordingly, transferred the case to the Principal Magistrate, Juvenile Justice Board (PMJJB), Sambalpur. Being aggrieved by the order of the Special Judge deeming the accused to be a 'juvenile' despite his criminal conduct after attaining majority, she filed this revision petition seeking to rectify the procedural fault. Findings After perusing the FIR as well as the charge-sheet, the Court noted that the accused committed the offence for the first time in 2017 at the age of 14. However, he did not cease to commit the offence, rather continued the same and he repeated his criminal activity for the last time in June 2023, when he was about 21-year-old."The FIR, as well as the charge sheet state that the accused last issued threats in June 2023. This suggests that the offense should be viewed as a continuing one...If the date of the first commission of the alleged offence in the year 2017 is to be taken into account, the accused would indeed fall within the ambit of being a minor. However, the FIR as well as the charge sheet unequivocally establish that the accused last committed the offence in the year 2023, at which point he had attained the age of majority. Accordingly, the...

'Raises Concerns About Competence Of Judge': Orissa HC Sets Aside Order In POCSO Case Wrongly Treating Major Accused As 'Juvenile'

Jyoti Prakash Dutta

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