Ketheshraja vs State Of Tamilnadu Rep By Inspector Of Police, Chinnalapatti
- Court
- Madras High Court
CRL A(MD) No. 1190 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On: 01.10.2026
Delivered On: 26.10.2026
CORAM
THE HON'BLE MR.JUSTICE S.KARTHIKEYAN
CRL A(MD) No. 1190 of 2025
CNR:{HCMD011450392025}
Ketheshraja
..Petitioner(s)
Vs
1. State of Tamilnadu Rep by Inspector of Police,
Chinnalapatti Police Station,
Dindigul District.
Cr. No. 25 of 2023.
2. Amala,
D/o. Sesuraj,
Pondimatha Kovil Street,
Panjampatti,
Dindigul District.
..Respondent(s)
PRAYER: Criminal appeal filed under Section 415(2) of BNSS, to set aside
the conviction and sentence passed in Spl.S.C.No.275 of 2023 dated
22.04.2025 by the learned Special Judge for Exclusive Trial of Cases under
POCSO Act, Dindigul District.
For Petitioner(s): Mr.A.Naresh Prabu
For Respondent(s): Mr.A.Robinson
Government Advocate (Crl.side)
For R1
No appearance for R2
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JUDGMENT
The appeal is directed against the judgment of conviction and sentence
passed against the appellant by the learned Sessions Judge, Special Court for
Exclusive Trial of cases under the Protection of Children from Sexual Offences
Act, Nagercoil, in Spl. S.C. No.275 of 2023, dated 22.04.2025.
2. For the sake of convenience, the parties herein are referred to as per
their ranking before the trial Court.
3. On a careful perusal of the records, it is seen that P.W.10, Gomathi,
the then Sub-Inspector of Police, Chinnalapatti Police Station, on receiving
information from the Government Hospital, Dindigul, went to the hospital on
02.03.2023 and recorded the complaint statement of the victim, who was
undergoing treatment as an inpatient. Based on the said complaint statement,
she registered Ex. P.10 First Information Report (F.I.R) in Cr. No. 25 of 2023
for offences punishable under Sections 5(l) and 5(j)(ii) read with Section 6 of
the POCSO Act. Thereafter, she forwarded the complaint statement and the
F.I.R to the Juvenile Justice Board, Dindigul, and submitted a copy to the
Inspector of Police for further investigation.
4. P.W.11 Smt. Victoria Loordhumeri, took up the investigation of the
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case. On 02.03.2023, she visited the Government Hospital, Dindigul, at around
17:00 hours and recorded the statement of the victim. Thereafter, she examined
the victim's parents and recorded their statements. On the same day, at around
20:00 hours, she visited the place of occurrence a rented house belonging to
one Kumar, where the child-in-conflict-with-law was residing and prepared
Ex.P5 Observation Mahazar and Ex.P11 Rough Sketch in the presence of
witnesses P.W.4 George Joseph and one Sebasthiar. She also examined the
mahazar witnesses and recorded their statements.
5. Thereafter, through Grade I Police Constable Tmt. Devika, she
requested a medical examination of the victim, who was undergoing treatment
as an inpatient at the Government Hospital, Dindigul. On 03.03.2023, she
requested an age certificate from the Headmistress of the school where the
victim study. On 04.03.2023, she obtained the age certificate, examined the
Headmistress, and recorded her statement. She also examined witnesses
Emeldamary @ Pappathi and Pottukadalai @ Antony and recorded their
statements.
6. On 05.03.2023, at about 21:30 hours, the victim child’s pregnancy
was aborted in her best interest, and the foetus was preserved. Thereafter, the
child-in-conflict-with-law was produced before the Juvenile Justice Board,
Dindigul, through Special Sub-Inspector of Police Tmt. Saradhamani. On
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06.03.2023, she requested the age certificate from the Headmaster of the
school where the child-in-conflict-with-law studied, received the certificate,
and recorded the statement of the Headmaster. On 10.03.2023, she sent the
child-in-conflict-with-law to the Government Medical College Hospital,
Dindigul, through Grade I Police Constable 809 Thiru. Arumugam to subject
him to a medical examination. Based on the directions of the Juvenile Justice
Board, the foetus aborted from the victim was forwarded to the Regional
Forensic Laboratory, Madurai, through Grade I Police Constable Mrs. Devika
on 23.03.2023.
7. She sent a requisition letter to the Judicial Magistrate, Aathoor, for
recording the statement of the victim under Section 164 Cr.P.C. On the same
day, she produced the victim before the learned Judicial Magistrate, Aathoor
and recorded her statement under Section 164 Cr.P.C. She then examined
Grade I Police Constable Tmt. Devika and recorded her statement. On
29.04.2023, she examined the doctor who conducted the medical examination
of the victim and recorded the doctor's statement. Thereafter, she received the
medical certificate of the child-in-conflict-with-law, examined the doctor who
conducted his medical examination, and recorded that statement as well.
8. She also examined Sub-Inspector of Police Tmt. Gomathi, who had
registered the F.I.R, and recorded her statement. Upon completion of the
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investigation, she submitted the final report before the concerned Court. On
24.08.2023, she sent a requisition letter to the Regional Forensic Laboratory to
receive the F.T.A card, which she subsequently received. An application in
Cr.M.P. No. 1549 of 2023, filed by the child-in-conflict-with-law opposing the
DNA test, remains pending. Due to her transfer, she handed over the case diary
to her successor.
9. P.W.12 collected the blood samples of the victim, the foetus, and the
Accused on 03.02.2024 and forwarded them to the Regional Forensic Science
Laboratory, Madurai. P.W.13 Mahalingaraja, the Scientific Officer, Regional
Forensic Laboratory, Thanjavur, conducted DNA profiling and submitted
Ex.P6 report.
10. The child in conflict with law was produced before the Juvenile
Justice Board. Upon his appearance, copies of the documents relied upon by
the prosecution were furnished to him under Section 207 of the Cr.P.C. On
03.06.2023, the Juvenile Justice Board conducted a preliminary assessment
under Section 15 of the Juvenile Justice (Care and Protection of Children) Act,
2015, as the child in conflict with law was concerned with a heinous offence.
Upon receipt of the assessment report from the Juvenile Justice Board, the
Special Court under the POCSO Act tried the appellant as an adult. The trial
court subsequently framed charges against the appellant for offences
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punishable under Section 5(l)(j)(ii) read with Section 6 of the POCSO Act. The
charges were read over and explained to the Accused, which he denied and
therefore, he was tried by the trial Court.
11. On the side of the prosecution, P.W.1 to P.W.13 were examined and
Ex.P.1 to Ex.P.16 were marked. Upon closure of the prosecution evidence, the
incriminating circumstances appearing in the evidence were put to the Accused
under Section 313(1)(b) of the Cr.P.C. The Accused denied the same as false.
Though he claimed he had witnesses on his side, no witnesses were examined
and no documents were marked. Therefore, the defence evidence was closed.
12. After hearing both sides, the trial Court found Appellant guilty of the
offence punishable under Sections 5(l)(j)(ii) r/w 6 of POCSO Act and
sentenced him to undergo 20 years Rigorous Imprisonment with a fine of
Rs.1,00,000/- in default to suffer one year Simple Imprisonment.
13. Aggrieved by the said conviction and sentence, the Accused has
come up with the present appeal. The learned counsel for the appellant is heard
and the learned Government Advocate (Criminal Side) for the State was also
heard. The trial Court records were called for and perused.
14.The point for determination is whether the conviction recorded as
against Appellant is sustainable?
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Answer:-
15. On careful perusal of the records, it is found that it is the case of the
prosecution that the date of birth of the victim is 04.05.2007. She was studying
th
in the 10 standard at the time of the occurrence. Her sister was studying in the
th
12 standard in the same school, and the Accused herein is a co-student of her
sister. When the victim child and her sister were going to tuition, the appellant
and the victim fell in love with each other. While so, on 10.07.2022 at around
10:00 a.m., since the sister of the victim was unwell, she requested the victim
to hand over her chemistry notes to the child in conflict with the law. The
victim went to the house of the child in conflict with the law, who then took
the victim inside his house, locked the doors, and committed penetrative sexual
assault twice. Out of fear, the victim did not reveal the occurrence to anyone.
16. It is the further case of the prosecution that upon coming to know
about the relationship between the victim and the child in conflict with the law,
the parents of the victim reprimanded her and instructed her not to contact him.
To inform the said fact to the child in conflict with the law, the victim went to
his house on 09.10.2022 at around 11:00 a.m. At that time, the child in conflict
with the law again forcibly committed sexual intercourse with her. Thereafter,
the victim suffered ill-health, and consequently, on 02.03.2023 at about 12:30
hours, she was taken to the Medical College Hospital, Dindigul. There, it came
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to light that the victim was pregnant. Considering the welfare of the child, on
05.03.2023, the pregnancy of the victim was terminated, and the foetus was
preserved. Therefore, according to the prosecution, the appellant has
committed an offence under Sections 5(l) and 5(j)(ii) read with Section 6 of the
POCSO Act.
17. The learned counsel for the appellant contended that an offence
punishable under Section 6 of the Protection of Children from Sexual Offences
(POCSO) Act, 2012 is punishable with rigorous imprisonment for a term
which shall not be less than twenty years, but which may extend to
imprisonment for life. Therefore, it constitutes a "heinous offence" within the
meaning of the Juvenile Justice (Care and Protection of Children) Act, 2015.
Under Section 2(33) of the Juvenile Justice (Care and Protection of Children)
Act, 2015, a "heinous offence" includes offences for which the minimum
punishment under the Indian Penal Code or any other law for the time being in
force is imprisonment for seven years or more.
18. According to the learned counsel for the Appellant, as per under
Section 15 of the Act, where a child in conflict with law between the age of 16
and 18 years is alleged to have committed a heinous offence, the Juvenile
Justice Board is mandated to conduct a preliminary assessment regarding their
mental and physical capacity to commit such offence, the ability to understand
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the consequences of the offence, and the circumstances in which it was
committed. If the Board, upon preliminary assessment, finds that there is a
need for the child to be tried as an adult, it passes an order under Section 18(3)
transferring the trial of the case to the designated Children's Court.
19. Accordingly, the Juvenile Justice Board, Dindigul, conducted the
preliminary assessment under Section 15 of the Juvenile Justice Act, 2015, and
transferred the child in conflict with law to the Children's Court to be tried as
an adult.
20. The learned counsel for the appellant further contended that, as per
Section 19 of the Juvenile Justice Act, upon receipt of the preliminary
assessment from the Board, the Children’s Court may decide whether to try the
child as an adult in accordance with the provisions of the Code of Criminal
Procedure, 1973, and pass appropriate orders. If it decides that there is no need
for trial of the child as an adult, the Court may pass appropriate orders in
accordance with Section 18 of the Act. Following the trial, and subject to
Section 21, any order passed must consider the specific needs of the child
while maintaining a child-friendly atmosphere.
21. According to the learned counsel for the appellant, the said
examination is mandatory as required under Section 9(1) of the Juvenile
Justice Act, therefore, the entire trial is vitiated. He relied upon the decision of
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the Hon’ble Apex Court in Sagar v. State of Haryana, reported in 2026
LiveLaw (SC) 666 , wherein it was held that the provision under Section 19(1)
of the Juvenile Justice (Care and Protection of Children) Act, 2015 is
mandatory in nature. Furthermore, the Hon’ble Apex Court, relying upon its
previous decisions in Ajeet Gurjar v. State of Madhya Pradesh and
Thirumoorthy v. State rep. by Inspector of Police, reported in 2024 INSC
247 , held that the word "may" used in Section 19(1) of the Act has to be read
as "shall", and accordingly set aside the conviction due to non-compliance with
Section 19(1) of the Act. The relevant paragraphs from Sagar cited supra is
extracted hereinbelow :
“11. Now adverting to the consequence of non-compliance with
Section 19 of the Act, the same has already been considered by this
Court in Thirumoorthy v. State represented by the Inspector of
Police (2024) 12 SCC 307. In the said case, the ‘child in conflict
with law’ was apprehended and subsequently tried by the Children’s
Court without adhering to the mandatory requirements of Sections 9 ,
15 , 18 and 19 of the Act, and was convicted and sentenced to a
maximum term of ten years under Section 302 of the Indian Penal
Code, along with sentences under other provisions. This Court, upon
a detailed analysis of the scheme and provisions of the Act, held that
non-compliance with the mandatory provisions thereof vitiates the
entire trial, and accordingly proceeded to quash and set aside the
judgment of conviction and sentence. This Court held as follows:
“33. Section 18(3) provides that where the Board after
preliminary assessment under Section 15 opines that there is a
need for the said child to be tried as an adult, then the Board
may order transfer of the trial of the case to the Children’s
Court having jurisdiction to try such offences.
34. By virtue of Section 19(1) , the Children’s Court, upon
receiving such report of preliminary assessment undertaken by
the Board under Section 15 may further decide as to whether
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there is a need for trial of the child as an adult or not.
35. The procedure provided under Sections 15 and 19 has been
held to be mandatory by this Court in the case of Ajeet Gujar v.
State of Madhya Pradesh . In the said case, this Court considered
the import of Section 19(1) of the JJ Act and held that the word
‘may’ used in the said provision be read as ‘shall’. It was also
held that holding of an inquiry under 19(1)(i) is not an empty
formality. Section 19 )(1)(ii) provides that after examining the
matter, if the Children’s Court comes to the conclusion that
there is no need for trial of the child as an adult, instead of
sending back the matter to the Board, the Court itself is
empowered to conduct an inquiry and pass appropriate orders in
accordance with provisions of Section 18 of the JJ Act. The trial
of a child as an adult and his trial as a juvenile by the Children’s
Court have different consequences.
36. It was further held that the Children’s Court cannot brush
aside the requirement of holding an inquiry under Section 19(1)
(i) of the JJ Act. Thus, all actions provided under Section 19 are
mandatorily required to be undertaken by the Children’s Court.
37. As can be seen from the facts of the present case, there has
been a flagrant violation of the mandatory requirements of
Sections 15 and 19 of the JJ Act. Neither was the charge sheet
against the accused appellant filed before the Board nor was
any preliminary assessment conducted under Section 15 , so as
to find out whether the accused appellant was required to be
tried as an adult.
38. 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.
39. Thus, it is evident that the procedure adopted by the
Sessions Court in conducting the trial of the accused appellant
is de hors the mandatory requirements of JJ Act .
40. Thus, on the face of the record, the proceedings undertaken
by the Sessions Court in conducting trial of the CICL,
convicting and sentencing him as above are in gross violation of
the mandate of the Act and thus, the entire proceedings stand
vitiated.
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41. It seems that pursuant to the trial being concluded, the trial
Court realized the gross illegality in the proceedings and thus,
in an attempt to give a vestige of validity to the grossly illegal
proceedings conducted earlier, an exercise was undertaken to
deal with the accused appellant as per the provisions of the JJ
Act on the aspect of sentencing.
However, 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.
……………………………
46. In the case of Ajeet Gurjar (supra), this Court remitted back
the matter to the Sessions Court for complying with the
requirements of Section 19(1) of the JJ Act. However, 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 appellant by taking recourse to the provisions of the JJ
Act . At the cost of repetition, it may be reiterated that the
charge sheet was filed against the accused appellant directly
before the Sessions Court (statedly designated as a Children’s
Court) and he was never presented before the Juvenile Justice
Board as per the mandate of the JJ Act .
47. The accused appellant being a CICL was never subjected to
preliminary assessment by the Board so as to find out whether
he should be tried as an adult. Directing such an exercise at this
stage would be sheer futility because now the appellant is
nearly 23 years of age.
48. 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.
49. Since we have held that the entire proceedings taken against
the appellant right from the stage of investigation and the
completion of trial stand vitiated as having been undertaken in
gross violation of the mandatory requirements of the JJ Act , we
need not dwell into the merits of the matter or to reappreciate
the evidence available on record for finding out whether the
prosecution has been able to prove the guilt of the appellant by
reliable circumstantial evidence.
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50. Thus, we are left with no option but to quash and set aside
the impugned judgment and direct that the appellant who is
presently lodged in jail shall be released forthwith, if not
required in any other case.”
12. Though in Thirumoorthy (supra) there was non-compliance with
both Sections 15 and 19 of the Act, in the present case there is
compliance with Section 15 , but there is non-compliance with
Section 19(1) of the Act. We had, for some time, considered the
possibility of reducing the sentence to the period already undergone,
or of limiting the sentence to a maximum of three years. However,
we are unable to adopt such a course. In the absence of compliance
with Section 19(1) , which is determinative of the procedure to be
followed by the Court, whether a Sessions trial or a summons case,
the entire trial stands vitiated. We are, therefore, left with no option
but to follow the course adopted in Thirumoorthy.
22. In the light of the decisions cited supra, in the present case, the child
in conflict with the law was aged about 16 years and 1 ½ months at the time of
the incident, while the victim was about 15 years old. The appellant/child in
conflict with the law is now approximately 20 years of age. Therefore, no
useful purpose would be served by remanding the matter back to the
Children’s Court to conduct a preliminary assessment as required under
Section 19(1) of the Juvenile Justice Act. Therefore, this court is of the view
that non-compliance with Section 19(1) vitiates the entire proceedings.
Accordingly, the conviction and sentence passed against the Appellant is
hereby set aside.
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23. In the result, this Criminal Appeal stands allowed and the conviction
and sentence imposed on the appellant by the learned Special Judge for
Exclusive Trial of Cases under POCSO Act, Dindigul District in
Spl.S.C.No.275 of 2023 dated 22.04.2025 is hereby set aside. Fine amount, if
any, paid by the appellant, shall be refunded to him.
26-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
AM
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To
1. The Inspector Of Police,
Chinnalapatti Police Station,
Dindigul District.
2. Special Judge for Exclusive Trial of Cases under POCSO Act,
Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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S.KARTHIKEYAN, J.
AM
Judgment in
CRL A(MD) No. 1190 of 2025
26-10-2026
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