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2026 DAILYLAW 27218 (ORI)

Mohan Kumar Durit v. State of Odisha

2026-03-09

A K Mohapatra

body2026
Judgment : Aditya Kumar Mohapatra, J. 1. These matters are taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard the learned counsel for the Petitioner as well as learned counsel for the Informant-Opposite Party No.2 and learned counsel for the State in both the cases. Perused the applications which were taken up for hearing today. 3. BLAPL No.3678 of 2025 has been filed at the instance of the Petitioner for his release on bail under Section 439 of the Cr.P.C. Similarly, the Petitioner has also approached this Court by filing an application under Section 438 of the B.N.S.S., 2023 challenging the order dated 03.02.2025 passed by the learned ADJ-cum-Special Court under POCSO Act, Bargarh in C.T. Case No.43 of 2024 whereby the learned ADJ-cum- Special Court under POCSO Act, Bargarh was pleased to reject the application filed by the Petitioner dated 06.01.2025 under Section 34 of the POCSO Act on the question of jurisdiction. 4. Learned counsel for the Petitioner, at the outset, contended that since both the applications involve an identical issue, they are taken up together for hearing. Learned counsel for the Opposite Party No.2-Informant has no objection to the same. Accordingly, the CRLMC application as well as the bail application under Section 439 of Cr.P.C. are taken up together and disposed of by the following order. 5. The case of the Petitioner, in brief, is that the Opposite Party No.2-Informant on 26.09.2024 lodged a written report inter alia before the Attabira Police Station, , alleging that the present Petitioner has been keeping physical relationship with her by giving her false assurance to marry her. On 05.09.2024, when she asked the Petitioner to marry her, the Petitioner abused her in filthy language, assaulted the Opposite Party No.2-Informant and threatened to kill her. It has also been alleged that as a result of such sexual and physical relationship, the Opposite Party No.2 had to undergo three illegal abortions. On the basis of the aforesaid allegation, the IIC of Attabira Police Station registered an F.I.R. against the Petitioner for commission of offences under Sections 376(2)(n)/294/313/323/506/34 of I.P.C. read with Section 6 of the Protection of Children From Sexual Offence Act, 2012. 6. On the basis of the aforesaid allegation, the IIC of Attabira Police Station registered an F.I.R. against the Petitioner for commission of offences under Sections 376(2)(n)/294/313/323/506/34 of I.P.C. read with Section 6 of the Protection of Children From Sexual Offence Act, 2012. 6. The grievance of the Petitioner in the present applications is that although the Petitioner was aged about 17 years and the Victim was 16 years and both were minor at the time of the occurrence, however such fact has not been taken into consideration while registering the case against the present Petitioner. He further submitted that in view of the provisions contained in the Juvenile Justice (Care and Protection of Children) Act, 2015 (Hereinafter referred to as “the Juvenile Justice Act, 2015”), particularly Section-6 thereof, when a person, who has allegedly committed an offence, was below the age of eighteen years and in the meantime he has completed eighteen years of age and subsequently apprehended for commission of such offence when he was below the age of eighteen years, then such person shall, subject to the provisions of the section, be treated as a child during the process of inquiry. He further submitted that in view of Section 6(2) of the Juvenile Justice Act, 2015 the accused, who was a minor at the time of the commission of an offence, if not released on bail by the Board, shall be placed in a “place of safety” during the process of inquiry. In view of the aforesaid settled provision in the Juvenile Justice Act, 2015, learned counsel for the Petitioner alleged that such provisions have not been followed at all in the case of the Petitioner. Thus, it is alleged that not only the detention of the Petitioner in custody is illegal, but also the impugned rejection order dated 03.02.2025 passed by the learned ADJ-cum-Special Court under POCSO Act, Bargarh in C.T. Case No.43 of 2024 is unsustainable in law. 7. In course of his argument, learned counsel for the Petitioner also referred to the provision contained in Section 34 of the Protection of Children from Sexual Offences Act, 2012 (Hereinafter referred to as “the POCSO Act, 2012”. Referring to the aforesaid provision, learned counsel for the Petitioner submitted that when it is found that the offence is committed by a minor/child, such child shall be dealt with under the provisions of the Juvenile Justice Act, 2015. Referring to the aforesaid provision, learned counsel for the Petitioner submitted that when it is found that the offence is committed by a minor/child, such child shall be dealt with under the provisions of the Juvenile Justice Act, 2015. Similarly, Section 34(2) of the POCSO Act, 2012 provides that whenever a question arises with regard to the age of the child and whether he is a minor or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and that it shall record in writing its reasons for such determination. At this juncture, learned counsel for the Petitioner further alleged that the provision contained in Section 34 of Juvenile Justice Act, 2015 has not been followed in this case. He further contended that had the provision contained under Section 34(2) of the POCSO Act, 2012 been followed, then the case would have been tried by a different court than the court in seisin over the matter. As such, it was alleged that the learned trial court in the present case has illegally assumed jurisdiction. As a result of such illegal assumption of jurisdiction, the impugned order passed by the learned trial court is a nullity in the eyes of law. 8. Learned counsel appearing for the Opposite Party No.2- Informant, at this juncture, contended that the factual submission made by the learned counsel for the Petitioner is incorrect. He further submitted that the victim was minor at the time of commission of offence. However, the Petitioner was a major. It was also alleged by the learned counsel appearing for the Opposite Party No.2 that the Petitioner has misled the court with regard to the age of the present Petitioner. In such view of the matter, learned counsel for the Opposite Party No.2 contended that the learned trial court has not committed any illegality and proceeded with the trial under the provisions of the POCSO Act, 2012. He also raised specific objection with regard to release of the Petitioner on bail citing the gravity and heinousness of the offence alleged against the present Petitioner. 9. Learned counsel for the State, on the other hand, contended that although it is alleged by learned counsel for the Petitioner that the Petitioner was a minor at the time of commission of the offence, however there is nothing on record to conclude as such. 9. Learned counsel for the State, on the other hand, contended that although it is alleged by learned counsel for the Petitioner that the Petitioner was a minor at the time of commission of the offence, however there is nothing on record to conclude as such. He further fairly contended that the provision contained in Section 34 of the POSCO Act, 2012 has not been adverted to and that the age of the Petitioner has not been determined before proceeding of the trial. However, he further submitted that taking into consideration the heinousness and gravity of the crime committed by the Petitioner, the learned trial court has not committed any illegality in proceeding with the trial, particularly keeping in view the fact that the trial is required to be concluded in a time bound manner as prescribed under the POCSO Act, 2012. On such ground, learned counsel for the State contended that both the bail application as well as the application under Section 438 of B.N.S.S., 2023 challenging the order dated 03.02.2025 are unsustainable in law and the impugned order does not call for any interference by this Court at this stage. 10. Heard the learned counsels appearing for the respective parties. This Court carefully examined the provisions contained under Section-6 of the Juvenile Justice Act, 2015 as well as the Section-34 of the POCSO Act, 2012. 11. It has been specifically alleged by the learned counsel for the Petitioner that the Petitioner was aged about 17 years when the offence was first allegedly committed. Thus, there is some substance in the argument advanced by the learned counsel for the Petitioner that the Petitioner was minor at the relevant point of time. Moreover, on a careful reading of Section-34 of the POCSO Act, 2012, it appears that sub-section (2) thereof confers a power on the Special Courts to determine the age of the accused in the event any such question arises before the court. Since the Petitioner has raised a question with regard to the age of the Petitioner, the learned Special Court under Section 34(2) of the POCSO Act, 2012 is duty bound to determine the age of the accused first before proceeding with the trial. 12. On a careful scrutiny of the record, it appears that no such procedure, as has been prescribed under the Section-34(2) of the POCSO Act, 2012 has been followed in this case. 13. 12. On a careful scrutiny of the record, it appears that no such procedure, as has been prescribed under the Section-34(2) of the POCSO Act, 2012 has been followed in this case. 13. On a perusal of the impugned order dated 03.02.2025 which has been assailed by the Petitioner by filing CRLMC No.682 of 2025, this Court further observes that the learned trial court has taken note of the contention of the accused- Petitioner with regard to the age of the accused-Petitioner at the time of lodging of the F.I.R. While recording such contention of the accused-Petitioner, the learned trial court has also taken note of the age of the accused and victim, as has been reflected in the School Admission Register i.e. 26 and 27 years old respectively, at the time of lodging of the F.I.R. The victim in the F.I.R. alleged that the occurrence had taken place ten years prior to the lodging of the F.I.R. and specifically alleged that the accused was having a sexual and physical relationship with her on the false pretext of marriage. Thus, the Petitioner has made an attempt to establish the fact that he was minor at the time when the occurrence first took place and, accordingly, an application was moved under Section 438 of B.N.S.S., 2025 for determination of his age. Further, taking note of the statement of the victim recorded under Section 161 of Cr.P.C., the learned trial court has gathered that the accused had attained majority at the time the occurrence took place. Accordingly, it was concluded that Section- 34 of the POCSO Act, 2012 is not applicable to the case of the accused Petitioner. 14. The learned trial court on a careful consideration of the stand taken by the accused-Petitioner as well as the victim has observed that the offence continued over the years and as per the F.I.R., offence occurred from 26.09.2014 till 30.06.2024. It has also been observed that the documents seized by the I.O. in course of the investigation filed along with the petition dated 06.01.2025 supports the contention of the Petitioner and that the offence was also committed when the accused was a major. In view of the aforesaid position, the learned trial court has held that the prayer of the Petitioner that as per the case records the court has no jurisdiction, bears no merit. Accordingly, the petition dated 06.01.2025 was rejected. In view of the aforesaid position, the learned trial court has held that the prayer of the Petitioner that as per the case records the court has no jurisdiction, bears no merit. Accordingly, the petition dated 06.01.2025 was rejected. In view of the aforesaid factual position, this Court examined the legal provisions contained in the Juvenile Justice Act, 2015, Section-6 whereof, which has a bearing on the present case, has already been mentioned and discussed in the preceding paragraphs. Similarly, Section-15 of the Juvenile Justice Act, 2015, which is relevant for the purpose of present case, provides that in case of a heinous offence committed by a child in conflict with law who is above the age of 16 years, the Board shall conduct a preliminary assessment with regard to his mental and physical capacity to commit such offence, ability to understand the consequences of the offence and circumstances in which he allegedly committed the offence and, accordingly, pass an order. The record of the present case reveals that such provision has not been followed and the Petitioner was never produced before the Board for such assessment as provided under Section-15 of the Juvenile Justice Act, 2015. 15. On a careful consideration of the factual background of the present case, further taking into consideration the fact that there is a dispute with regard to the age of the Petitioner and it has been alleged by the learned counsel for the Petitioner that the Petitioner was a minor at the time the occurrence took place for the first time, this Court is of the considered view that such aspect should have been dealt with as per the relevant provision contained in the Juvenile Justice Act, 2015 as well as the POCSO Act, 2012. 16. In view of the analysis made hereinabove, this Court is inclined to set aside the order dated 03.02.2025 at Annexure-6, which has been assailed in CRLMC No.682 of 2025. Accordingly, the same is hereby set aside. 17. Further, it is directed that the Petitioner be placed before the Board in terms of the provisions contained in Juvenile Justice Act, 2015. It is further directed that the age of the Petitioner shall also be determined in terms Section-6 of the Juvenile Justice Act, 2015 read with Section-34 of the POCSO Act, 2012 before proceeding further in the trial. Further, it is directed that the Petitioner be placed before the Board in terms of the provisions contained in Juvenile Justice Act, 2015. It is further directed that the age of the Petitioner shall also be determined in terms Section-6 of the Juvenile Justice Act, 2015 read with Section-34 of the POCSO Act, 2012 before proceeding further in the trial. Let the aforesaid exercise be carried out within a period of two months after providing opportunity of hearing to both sides. 18. Since CRLMC No.682 of 2025 is being disposed of by setting aside the impugned order along with a further direction to be complied with, the bail application filed by the Petitioner is hereby disposed of by granting liberty to the Petitioner to file a fresh bail application after the direction given hereinabove are complied with. 19. With the aforesaid observation and direction, both the bail application as well as CRLMC application stand disposed of.