1 CGHC010299612026 2026:CGHC:36459-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2146 of 2026 Shankar Sagar @ Bijali Sagar S/o Late Pyare Lal Sagar Aged About 40 Years (Third Gender), R/o Near Ram Mandir, Chandra Shekhar Lodhi Para, Raipur, Pandri, Distt. Raipur, Chhattisgarh, At Present R/o Shitla Para, Mahila Sagar Ward Dani Tola, P.S. Kotwali, Distt. Dhamtari, Chhattisgarh. ... Petitioner(s) versus State of Chhattisgarh Through The Station House Officer, P.S. Civil Line, Raipur, Distt. Raipur, Chhattisgarh. ... Respondent(s) (Cause-title taken from Case Information System) For Petitioner : Mr. Mahant Kumar Jayswal, Advocate. For Respondent/State : Ms. Anusha Naik, Deputy Government Advocate. Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Order on Board Per Ramesh Sinha , Chief Justice 17 .08.2026 1. Heard Mr. Mahant Kumar Jayswal, learned counsel for the petitioner. Also heard Ms. Anusha Naik, learned Deputy Government Advocate, appearing for the State/respondent. BRIJMOHAN MORLE Digitally signed by BRIJMOHAN MORLE Date: 2026.08.19 10:44:00 +0530 2 2. The present petition has been filed by the petitioner with the following prayer: “It is therefore most respectfully prayed that this Hon’ble Court may kindly be pleased to modify/review of the judgment dated 30.06.2026 passed in CRA No.1011 of 2024 by this Hon’ble Court by acquitting the petitioner from the offence under Section 376(AB) of the IPC and Section 6 of POCSO Act, 2012, in the interest of justice.” 3. Learned counsel for the petitioner submits that the petitioner had preferred CRA No. 1011/2024 before this Hon’ble Court, assailing the judgment of conviction and order of sentence dated 30.04.2024 passed by the learned Additional Sessions Judge, First Fast Track Special Court (POCSO), Raipur, District Raipur, in Special Criminal Case (POCSO) No. 56/2020, whereby the petitioner was convicted for the offence punishable under Section 376-AB of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and was sentenced to undergo imprisonment for the remainder of her natural life along with a fine of Rs. 2,000/-, and in default of payment of fine, to undergo further imprisonment for a period of four months. He further submits that the aforesaid appeal came up for consideration before this Hon’ble Court on 30.06.2026 and this Hon’ble Court was pleased to partly allow the appeal. Although the conviction of the petitioner was maintained, the sentence imposed upon her was modified and reduced from imprisonment for the remainder of her natural life to rigorous 3 imprisonment for a period of 20 years. 4. It is further contended by the learned counsel for the petitioner that an important and substantial question of law concerning the applicability of the substantive penal provision under which she has been convicted has not received due consideration, particularly in view of the undisputed status of the petitioner as a third-gender person. The petitioner is presently lodged in the Female Cell of Central Jail, Raipur, which also demonstrates the peculiar circumstances concerning her gender identity and legal status. He also submits that Section 375 of the IPC, as applicable to the present case, specifically commences with the expression that “A man is said to commit rape” and thereafter defines the acts which constitute the offence of rape. The statutory definition, therefore, specifically identifies the offender as a “man” and the victim as a “woman”. The relevant statutory provision is reproduced below for the kind consideration of this Hon’ble Court: “375. Rape.—A man is said to commit “rape” if he — (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or 4 any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances specified in the provision.” 5. That Section 10 of the IPC defines the expressions “man” and “woman” in the following terms: “10. Man, Woman.—The word ‘man’ denotes a male human being of any age; the word ‘woman’ denotes a female human being of any age.” 6. Learned counsel for the petitioner respectfully submits that the statutory language employed in Sections 10 and 375 of the IPC cannot be ignored while determining the applicability of Section 376-AB of the IPC. The conviction under Section 376-AB is necessarily dependent upon the commission of the offence of rape as defined under Section 375 IPC and, consequently, the essential statutory ingredients of Section 375 are required to be established before a person can be convicted under the corresponding penal provision. 7. Learned counsel for the petitioner would submit that the petitioner is a third-gender person and is not a person who falls within the conventional statutory description of “man” contained in Section 10 of the IPC. The learned counsel for the petitioner, therefore, respectfully submits that the question as to whether the substantive ingredients of Section 375 IPC stand attracted to the petitioner, having regard to her gender identity and the statutory definitions then applicable, constitutes 5 a material question of law which goes to the root of the conviction. He further submits that a penal statute is required to be construed strictly, and where the prosecution seeks to sustain a conviction for an offence carrying extremely severe consequences, every essential ingredient of the offence must be established strictly in accordance with the statutory provision. The Court cannot dispense with or enlarge an essential statutory ingredient merely on the basis of the gravity of the allegation. 8. Learned counsel for the petitioner submits that the petitioner is conscious of the fact that the POCSO Act is a special legislation intended to protect children from sexual offences and contains gender- neutral provisions in several respects. However, the conviction under Section 6 of the POCSO Act is also required to be examined with reference to the precise ingredients of “penetrative sexual assault” and “aggravated penetrative sexual assault” as defined under the Act, and the prosecution must establish each of the statutory ingredients beyond reasonable doubt against the petitioner. He further stated that the mere fact that the victim was a child cannot, by itself, dispense with the requirement of establishing that the acts attributed to the petitioner constitute the specific offence charged under the statutory provisions. The nature of the petitioner’s gender identity, her legal status and the manner in which the alleged act is attributed to her are therefore matters directly relevant to determination of the applicability of the penal provisions invoked against her. He further contended that the continued conviction under Section 376-AB IPC, despite the petitioner’s third- gender status and the specific language employed in Sections 10 and 6 375 IPC, gives rise to a substantial question as to whether the essential statutory requirement of the offender being a “man” has been satisfied in the facts and circumstances of the present case. 9. Learned counsel for the petitioner also contended that the aforesaid issue goes to the very root of the conviction and is not merely a question relating to the quantum of sentence. The petitioner is therefore entitled to seek reconsideration/modification of the judgment dated 30.06.2026 passed in CRA No. 1011/2024 to the extent that the conviction has been affirmed. Thus, in the facts and circumstances of the case, and particularly having regard to the statutory scheme of Sections 10, 375 and 376-AB of the IPC, the petitioner most respectfully submits that her conviction under Section 376-AB IPC deserves to be set aside, as the essential statutory ingredients of the offence have not been established against a person of the petitioner’s gender status in the manner contemplated by the said provisions. Consequently, this Hon’ble Court may also be pleased to reconsider the conviction recorded under Section 6 of the POCSO Act in light of the specific statutory ingredients of the offence and the petitioner’s individual circumstances, and may grant the petitioner such relief as this Hon’ble Court may deem just and proper in the interest of justice. 10. Learned counsel for the petitioner, therefore, most humbly prays that this Hon’ble Court may graciously be pleased to modify/review the judgment dated 30.06.2026 passed in CRA No. 1011/2024 and, upon reconsideration of the aforesaid substantial question of law and the 7 statutory ingredients of the offences, be pleased to acquit the petitioner of the offences punishable under Section 376-AB of the IPC and Section 6 of the POCSO Act, and pass such other order(s) as may be deemed fit and proper in the facts and circumstances of the case. 11. Per contra, learned State counsel vehemently opposes the petition and submits that the present petition is wholly barred by Section 362 of the Cr.P.C. [now Section 403 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)]. It is submitted that CRA No.1011/2024 was finally decided by this Court vide judgment dated 30.06.2026 after hearing the petitioner on merits. The said judgment has been signed and the appeal has been finally disposed of. Therefore, this Court has no jurisdiction to review or alter the said judgment except for the limited purpose of correcting a clerical or arithmetical error. 12. Learned State counsel further submits that the petitioner has neither pointed out any clerical error nor any arithmetical error in the judgment dated 30.06.2026. On the contrary, the petitioner seeks reconsideration of the conviction itself by raising a fresh contention regarding the applicability of Sections 10 and 375 of the IPC on the basis of her third-gender status. Such a prayer, according to learned State counsel, would necessarily require this Court to reconsider the findings already recorded and to alter the judgment on merits, which is expressly prohibited by Section 362 of the Cr.P.C (now Section 403 of the BNSS). 13. Learned State counsel further contended that the petitioner had 8 already availed the statutory remedy of appeal against the judgment of conviction and sentence dated 30.04.2024. The said appeal was duly considered by this Court and substantial relief was granted to the petitioner by reducing the sentence from imprisonment for the remainder of her natural life to rigorous imprisonment for a period of 20 years. Having availed the appellate remedy, the petitioner cannot seek a second consideration of the same judgment by styling the present proceedings as a petition for modification or review. 14. Learned State counsel would submit that the nomenclature of the petition cannot determine its true nature. If the relief sought would require the Court to reconsider the findings on conviction, re-examine the statutory provisions or re-appreciate the evidence, the same would amount to a substantive review of the judgment. Such substantive review is clearly barred under Section 362 Cr.P.C (now Section 403 of the BNSS). He further stated that the contention regarding the POCSO Act also does not assist the petitioner in maintaining the present petition. The petitioner seeks reconsideration of her conviction under Section 6 of the POCSO Act on the basis of the same facts and evidence which were available when CRA No.1011/2024 was decided. Such reconsideration would equally amount to reopening the final adjudication on merits and would consequently be hit by the bar contained in Section 362 Cr.P.C (now Section 403 of the BNSS). 15. Learned State counsel accordingly submits that no ground whatsoever has been made out for invoking the limited exception under 9 Section 362 Cr.P.C (now Section 403 of the BNSS). The petitioner has not alleged or established any clerical or arithmetical error in the judgment dated 30.06.2026. The present petition is, therefore, nothing but an attempt to seek substantive review of a final judgment, which is impermissible in law. He, therefore, prays for dismissal of the petition. 16. We have heard learned counsel for the parties and have carefully perused the material available on record, including the judgment dated 30.06.2026 passed by this Court in CRA No.1011/2024. 17. The short question which arises for consideration in the present petition is whether, after final disposal of CRA No.1011/2024 and upon the judgment dated 30.06.2026 having been signed, this Court can review or alter the said judgment in the manner sought by the petitioner. 18. Section 362 of the Cr.P.C. (now Section 403 of the BNSS) reads as under: “362. Court not to alter judgment.—Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” 19. The statutory provision is clear and admits of no ambiguity. Once a criminal Court has signed its judgment or final order disposing of the case, the Court cannot thereafter alter or review the same, except for correction of a clerical or arithmetical error. The provision attaches finality to the adjudication and places a specific statutory restraint upon 10 the power of the criminal Court to reopen its own final judgment. 20. The principle underlying Section 362 Cr.P.C. is that upon signing the judgment or final order disposing of the case, the criminal Court becomes functus officio and cannot undertake a substantive reconsideration of the matter. The Hon’ble Supreme Court has reiterated that the bar under Section 362 Cr.P.C. applies to substantive review and that a criminal Court cannot circumvent the statutory prohibition merely by invoking the jurisdiction in another form. 21. In the present case, there is no dispute that CRA No.1011/2024 was finally decided by this Court vide judgment dated 30.06.2026. The conviction of the petitioner was maintained, while the sentence was modified and reduced to rigorous imprisonment for a period of 20 years. The judgment having been finally rendered and signed, the present Court cannot review or alter the same on merits in view of the express statutory bar contained in Section 362 Cr.P.C (now Section 403 of the BNSS). 22. The petitioner has not pointed out any clerical or arithmetical error in the judgment dated 30.06.2026. The grievance raised by her is substantive in nature. She seeks reconsideration of the applicability of Section 375 read with Section 376-AB of the IPC on the basis of her third-gender status and further seeks reconsideration of her conviction under Section 6 of the POCSO Act. 23. Such a prayer cannot be treated as a mere correction of the judgment. Acceptance of the petitioner’s prayer would necessarily 11 require this Court to reopen the findings already recorded in the appeal, reconsider the statutory ingredients of the offences and alter the conclusion relating to the conviction. The same would clearly amount to a substantive review of the judgment dated 30.06.2026. 24. The fact that the petitioner has now sought to raise a question relating to the interpretation of Sections 10 and 375 of the IPC does not alter the legal position. Even if the petitioner considers the said question to be an important question of law, the same cannot confer upon this Court a power of review which is otherwise expressly barred by Section 362 Cr.P.C. The present proceedings cannot be converted into a second round of appellate adjudication. 25. Likewise, the contention concerning the applicability of Section 6 of the POCSO Act cannot be examined afresh in the present proceedings, as such examination would necessarily require reconsideration of the conviction already affirmed by this Court in CRA No.1011/2024. The petitioner cannot circumvent the statutory bar merely by describing the relief sought as one for “modification” instead of “review”. 26. In the present case, the judgment dated 30.06.2026 passed in CRA No.1011/2024 has already attained finality. The petitioner has not pointed out any clerical or arithmetical error therein. Therefore, the limited exception contemplated under Section 362 of the Cr.P.C. has no application in the facts of the present case. 27. In view of the foregoing discussion, we are of the considered 12 opinion that the present petition, in substance, seeks review and substantive modification of the judgment dated 30.06.2026, which is impermissible in view of the statutory bar contained in Section 362 of the Cr.P.C. 28. Consequently, the present petition is dismissed as not maintainable in view of the bar contained under Section 362 of the Cr.P.C (now Section 403 of the BNSS). 29. The judgment dated 30.06.2026 passed by this Court in CRA No.1011/2024 shall remain undisturbed. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Brijmohan