JAGAN SAMAL vs STATE OF ODISHA
- Court
- Odisha High Court
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 26-May-2026 16:09:47
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.1251 of 2025
(In the matter of an application under Section 415(2) of Bharatiya
Nagarik Suraksha Sanhita, 2023 corresponding to Section 374(2) of
Criminal Procedure Code, 1973).
Jagan Samal …. Appellant (s)
-Versus-
State of Odisha …. Respondent (s)
:
Advocates appeared in the case through Hybrid Mode
For Appellant (s) : Mr. Janmejaya Katikia, Adv
For Respondent (s) : Ms. Gayatri Patra, ASC
Mr. Ghanashyam Muduli, Adv.
(for Respondent No.2)
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:- 07.05.2026
DATE OF JUDGMENT:- 15.05.2026
Dr. Sanjeeb K Panigrahi, J.
1. The Petitioner has filed the instant Criminal Appeal under Section
374(2) of the Code of Criminal Procedure, 1973/ Section 415(2) of
Bharatiya Nagarik Suraksha Sanhita, 2023, invoking the appellate
jurisdiction of this Court. The appeal is preferred against the Judgment
dated 23.04.2025 passed by the learned Additional District and Sessions
Judge-cum-Special Court under POCSO Act, Kendrapara, in GR No. 35
of 2021 (CIS No.GR 35/2021), whereby the Appellant has been
convicted for the offences punishable under Section 363/365/366/
376(2)(f)/ 376(2)(n) of IPC read with Sec.6 of the POCSO Act.
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2. Upon such conviction, the learned Special Court sentenced the
Appellant to undergo rigorous imprisonment for a period of twenty
years under section 6 of the POCSO Act and a fine of Rs.50,000/- in
default whereof, he shall undergo rigorous imprisonment one year. The
appellant is further sentenced to rigorous imprisonment for a period of
three years under section 363 of IPC and to pay a fine of Rs. 1,000/- in
default whereof he shall undergo rigorous imprisonment for six
months. Further sentenced to undergo rigorous imprisonment for a
period of three years under Section 365 of IPC He is further directed to
pay a fine of Rs. 1,000/- in default whereof he shall undergo rigorous
imprisonment for six months. The appellant is also sentenced to
undergo Rigorous Imprisonment for a period of five years under
section 366 of IPC and a fine of Rs.5,000/- in default whereof he shall
undergo rigorous imprisonment six months.
I. C ASE OF THE P ROSECUTION :
3. Bereft all the unnecessary details, the prosecution case is that, on
19.11.2020 the complainant has presented a written report before I.I.C.,
Tantiapal Marine PS regarding the fact that his minor daughter has
been found missing from the house since the early morning of
18.11.2020.Upon this report I.I.C., Tantiapal Marine PS registered P.S
Case No. 60 of 2021 under Section 363 and 334 of IPC and took up
investigation into this case. During the course of investigation, the I.O.
has examined the informant and other material witnesses and seized
the birth certificate of the victim. They visited the spot, searched for the
victim and the appellant and accordingly apprehended the appellant
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on 14.03.2021. They also have rescued the victim and sent her for her
medical examination. Further, they got the statement of the victim
recorded under Section 161 of Cr.P.C. and under Section 164 of Cr.P.C.
respectively along with issuing injury requisition in favour of the
appellant and collected the biological samples and other material
objects of the appellant and the victim. As per the statements of the
victim under Section 164 report, it was suggested that the victim has
stated before the Learned Magistrate that she was in a love relationship
with the Appellant and she voluntarily eloped to Vishakhapatnam and
Bangalore with him and got married with him in a temple which she
later denied before the Learned Special Court. Further they sent the
seized articles for chemical examination and after completion of the
investigation the I.O. has submitted the charge-sheet against the
appellant Jagan Samal U/s. 363, 365, 366, 376(2)(f), 376(2)(n) of IPC read
with Section 6 of POCSO Act. Thereby the appellant was adjudged
guilty for commission of offences punishable under all the
abovementioned sections of IPC and not under POCSO Act taking into
account the facts and circumstances of this case.
II. S UBMISSIONS ON BEHALF OF THE A PPELLANTS :
4. The Counsel for the Appellant submits that the impugned judgment is
contrary to law, facts and evidence on record and is liable to be set
aside as the Learned Trial Court has failed to properly appreciate the
evidence and has arrived at findings which are perverse and
unsustainable in the eye of law.
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5. They submit that, at the very outset, there is a clear contradiction
regarding the date of occurrence. The date mentioned in the FIR by the
informant materially varies from the date stated by him in his
disposition as P.W.1. Such inconsistency is not a minor discrepancy but
goes to the root of the prosecution story, as the FIR is expected to
contain the earliest and most reliable version of the events. This
material improvement made during trail renders the testimony of the
informant unreliable and unsafe to rely upon.
6. It was further submitted that the serious contradiction regarding the
date of rescue of the victim and apprehension of the accused. P.W.1.
has stated that his daughter was rescued on 18.03.2021, whereas the
Investigating Officer (P.W.10) has categorically deposed that the
accused was apprehended and the statement of the victim was
recorded on 14.03.2021. this inconsistency between the informant and
the Investigating Officer creates a huge doubt about the prosecution
version and indicates serious infirmities in the investigation. It was
further submitted that there was an unexplained delay in lodging of
the FIR. The alleged occurrence took place on 18.11.2020 in the early
morning, whereas the FIR was lodged on 19.11.2020 where there was
no satisfactory explanation which was settled in Thulia Kali v. State of
1
Tamil Nadu , that any unexplained delay in lodging FIR gives rise to
suspicion of embellishment and afterthought.
7. The counsel for the Appellant further submits that, the learned Trial
Court has erred in holding that the victim was a minor at the time of
1
(1972) 3 SCC 393
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the alleged occurrence. The entire finding regarding age is based upon
a birth certificate which has not been proved in accordance with law.
No competent authority has been examined to prove the said
document and even the seizure witness has admitted that the contents
2
were not read over to him. In Alamelu v. State , the Supreme Court has
held that such documents cannot be relied upon unless duly proved.
They further contend that the prosecution has failed to establish the age
of the victim beyond reasonable doubt, particularly when the
testimony of the father is inconsistent with the documentary evidence.
P.W.1 has stated that he was married on 03.07.1997 and that the victim
was born four years thereafter, indicating her birth year as 2001,
whereas the birth certificate shows the year of birth as 2003. This
contradiction clearly suggests manipulation of age to bring the case
under the POCSO Act.
8. It was further contended that there is an existing material contradiction
between the version of the informant in the FIR and his deposition
before the Court. While the FIR does not disclose the specific story that
the victim had gone for a morning walk and was kidnapped by the
accused on a motorbike, such version of the informant story has been
introduced for the first time during the trial of P.W.1. This
improvement assumes significance in view of the categorical admission
of the Investigating Officer that such facts were never stated before him
during the investigation.
2
(2011) 2 SCC 385
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9. The counsel contends that the evidence on record clearly establishes
that the prosecutrix was in a consensual relationship with the
Appellant. She has admitted in her cross-examination that she was in
love with the Appellant, voluntarily accompanied him and stayed with
him for a considerable period. Such conduct is wholly inconsistent with
the allegation of kidnapping or forcible sexual assault. On the other
hand, the accused is a juvenile which is clear from the High School
Certificate and the victim and the accused were in love with each other.
The ground reality shows a high rate of adolescent relationship and
elopement which cannot be ignored rather is to be appreciated by this
Court on the peculiar facts and circumstance of the present case. On the
global platform, most jurisdictions have rejected India’s absolutist
stance. “Romeo and Juliet” or close-in-age exemptions are the norm,
not the exception. It is respectfully submitted that to read down the
statutory age of consent from 16 to 18 years, on the premises of blanket
criminalisation of consensual sex activity between adolescents of age 16
to 18 years under POCSO and the BNS constitutes an over reach that
unfairly penalises normal teenage relationships. Hence, there is a
misuse of POCSO in consensual adolescent romances which is to be
reconsidered by the government as “Romeo and Juliet” clause or close-
in-age exceptions.
10. The counsel further contends that the testimony of the prosecutrix
suffers from serious contradictions and improvements. While in her
statement under Section 164 Cr.P.C. she stated that she voluntarily
went with the Appellant and married him, but in her deposition before
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the Court has alleged forcible kidnapping and sexual assault. Such
material contradictions go to the root of the prosecution case and
render her testimony unreliable. In Radhu v. State of Madhya
3
Pradesh , it has been held that conviction cannot be based on
inconsistent testimony.
11. The counsel contends that the medical evidence does not support the
prosecution case. No injury was found on the person of the victim or
the accused and the medical officer has admitted that injuries are
generally expected in cases of forcible intercourse. The absence of such
evidence casts serious doubt on the prosecution story as held in Raja v.
4
State of Karnataka . It was further contended that the Learned Trial
Court has erred in mechanically invoking the presumptions under
Sections 29 and 30 of the POCSO Act without first establishing
foundational facts beyond reasonable doubt.
12. The Counsel further contends that the Appellant was himself a minor
at the tie of the alleged occurrence, which is clear from the High School
Certificate filed by the present appellant annexed with the IA No.
793/2026 and which has been duly verified by the learned State
Counsel and found to be genuine/authentic, as it was submitted before
this Court. The issue of juvenility goes to the root of jurisdiction. In
Ramji Prasad Jaiswal v. State of Bihar , the Hon’ble Supreme Court
has reiterated that once juvenility is established, the conviction cannot
be sustained. Similarly in Abuzar Hossain @ Gulam Hossain v. State of
3
(2007) 12 SCC 57
4
(2016) 10 SCC 506
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5 6
West Bengal and Rishipal Singh Solanki v. State of U.P. it has been
held that the plea of juvenility can be raised at any stage and benefit
must be extended to the accused.
13. In view of the above facts and circumstances, the Counsel contends
that the prosecution has failed to prove the case beyond reasonable
doubt. The evidence on record is inconsistent, unreliable and
insufficient to sustain the conviction of the Appellant. It is a settled
principle that when two views are possible, the one favourable to the
accused must be adopted. Hereby, contends that the Appellant is
entitled to benefit of doubt and the impugned judgment of conviction
and order of sentence are liable to be set aside.
UBMISSIONS OF THE ESPONDENT TATE
III. S R /S :
14. In reply for this, the Counsel for the State Ms. Gayatri Patra has relied
on the witnesses to provide the submissions. As per the statements of
P.W.1, the father of the victim, the state counsel submits that the FIR
and the original birth certificate of the victim showing her date of birth
as 28.09.2003. The victim once rescued by the police was taken for
medical examination accompanied by her father. He also denied
suggesting that there was any form of love relationship during his
cross-examination.
15. The state through the statements of P.W. 3 the minor victim herself,
submits that the victim was 16 years during the occurrence and was
forcibly taken by the appellant to his village on a false promise of
marriage and later took her to Bangalore where she was kept for four
5
(2012) 10 SCC 489
6
(2022) 8 SCC 602
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months. During this stay, the appellant established physical
relationship with the victim against her will. Furthermore, the victim
during her stay with the appellant was not allowed to communicate
with anybody as the appellant never left her alone and threatened to
pour acid on her and kill her if she disclosed the incident before
anyone. As a result, she had to remain silent. She could not
communicate with any co-passengers during the bus travel to
Bangalore nor to any neighbour or nearby persons as the appellant did
not leave her side and threatened to kill her. The victim has herself
disclosed before the police and the learned Magistrate regarding the
threats extended by the appellant during her stay.
16. Through statement of the P.W. 7, the medical examiner, the State
submits that the medical examination report dated 14.03.2021 proved
the medical examination by stating that there might by an injury on the
private part in the event of forcible sexual intercourse and there might
be some bodily injury on the knee and other parts in case of forcible
sexual intercourse on hard and rough surface.
17. The State further submits that the Minor Victim (P.W. 3) has
consistently and categorically implicated the Appellant. Further
submits that the victim was unequivocally under the age of 18 years
and any alleged consent for elopement or physical relations is entirely
immaterial and cannot be considered a valid consent in the eyes of law.
Furthermore, against the contention of the defence that, since the
victim was medically examined after four months of the occurrence
and there was no recent sign or symptom of sexual assault, the state
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submitted that the absence of medical evidence or injuries alone cannot
by itself discredit the testimony of the prosecutrix. The state relies on
the Hon’ble Supreme Court judgment of Mukesh v. State (NCT of
7
Delhi) , where it was reiterated that conviction can be based solely on
the testimony of the prosecutrix if it is natural, trustworthy and
reliable. It was further held that the evidence of a victim of sexual
assault does not require corroboration, including medical evidence. The
State submits that the victim provided a trustworthy testimony
detailing how the Appellant kidnapped her on a false promise of
marriage, transported her to Bangalore and subjected her to repeated
sexual assault.
18. The Appellant has also completely failed to rebut the statutory
presumptions under Sections 29 and 30 of the POCSO Act regarding
his culpable mental state and remaining entirely silent during his
statement under Section 313 of the Cr.P.C.
19. The Hon’ble Supreme Court held in the case of Anversinh @ Kiransinh
8
Fatesinh Zala v. State of Gujarat that, the appellant has failed to
propound how the elements of kidnapping have not been made out.
His core contention appears to be that in the view of consensual affair
between them, the prosecutrix joined his company voluntarily. Such a
plea, in our opinion, cannot be acceded to the given unambiguous
language of the statute as the prosecutrix was admittedly below 18
years of age. It was further held that the Section 366 of IPC postulates
that once the prosecution leads evidence to show that the kidnapping
7
(2017) 2 SCC (Cri) 673
8
AIR 2021 SC 477
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was with the intention or knowledge to compel marriage of the girl or
to force or induce her to have illicit intercourse, the enhanced
punishment of 10 years as provided thereunder would stand attracted.
The Court observed that the consent of the minor would be no defence
to a charge of kidnapping and upheld the conviction under Section 366
IPC. It was held that where the prosecution proves that the minor was
taken for marriage or illicit intercourse, the offence under Section 366
IPC is clearly attracted.
9
20. In Ganesan v. State the Supreme Court held that in cases of crimes
against women and children especially, U/s. 7 and 8 of POCSO Act,
conviction can lie on the sole testimony of the victim, where such
testimony is found reliable, trustworthy and her evidence was of
sterling quality.
21. State of Punjab v.
In another case, the Hon’ble Supreme Court in
10
Ramdev Singh , has held that in cases involving sexual offences,
particularly where the victim is of tender age, the testimony of the
prosecutrix, if found reliable and trustworthy, is sufficient to sustain
conviction and does not require corroboration as a rule of law.
22. In view of the foregoing submissions and the cogent oral and
documentary evidence on record and accordingly contends that the
present Criminal Appeal, CRLA No. 1251/2025 are devoid of merit and
are liable to be dismissed in limine to secure the ends of justice.
9
(2020) 10 SCC 573
10
(2004) 1 SCC 421
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IV. F INDINGS OF T HE A DDITIONAL D ISTRICT AND S ESSIONS J UDGE - CUM
S PECIAL C OURT UNDER POCSO A CT , K ENDRAPARA :
23. The learned Special Court framed charges under section 363/365/
366/376(2)(f)/376(2)(n) of IPC and Section 6 of the POCSO Act, alleging
that the appellant committed offence of rape/penetrative sexual assault
upon the victim. Upon conclusion of the trial and appreciation of the
evidence adduced by the prosecution, the learned special court found
the appellant guilty and accordingly convicted him under section
363/365/366/376(2)(f)/376(2)(n) of IPC and Section 6 of the POCSO Act
and accordingly he is convicted under section 235(2) of Cr.P.C.
24. Upon appreciation of the oral and documentary evidence available on
record and the examination of the witnesses, the learned Special Court
held that sufficient materials were available to substantiate the charges
framed against the appellant. On a careful evaluation of the testimonies
of the victim, the medical officers and the Investigating Officers, the
learned Special Court arrived at the conclusions there was repetitive
penetrative sexual assault done to the victim.
25. In order to bring home the charge under Section 6 of the POCSO, the
materials shown to the court was the original birth certificate of the
victim through which the Learned Special Court ascertained that the
victim was born on 28.09.2003. Further pursuant to the FIR, the cause of
occurrence was on 18.11.2020 which in other words means the victim
was aged about 17 years 01 months 21 days on the alleged date of
occurrence and was a minor coming under the purview of POCSO Act.
26. In order to bring the charges under Section 363/365/366 IPC, the
learned Special Court relied on the FIR coupled with the evidence of
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the parents and family members of the victim and of the victim herself.
It was clearly concluded that the victim was removed from the
guardianship of her parents by none other than the present appellant.
Moreover, the victim had disclosed that the accused kept her at
different places and had sexual intercourse with her against her will.
From this evidence of the victim, the Ld. Special Court concluded that
the intention of the accused was to confine the victim and to force her
for illicit intercourse with him. Therefore, the offences under section
363/365/366 of IPC are established against the accused.
27. In order to bring the charges under Section 376(2)(f)/376(2)(n) of IPC
the Ld. Special Court stated that the entire prosecution case rests on the
shoulder of the victim who is the sole eye witness of the entire
occurrence. The victim had mentioned in her evidence version that the
accused forcible kept physical relationship with her during her stay
with him. On this aspect the special court relied on a decision of the
11
Hon'ble Apex Court in the matter of State of Punjab vs. Gurmit Singh
in which the special court had refused to accept the survivor/victim's
testimony due to certain perceived inconsistencies. In a case of such
nature which involves law with regard to sexual offence, it is a well
settled principle that the testimony of the prosecutrix shall be given the
highest importance. Therefore the Ld. Special Court found evidence of
the victim to be very much credible and did not find any serious
infirmity to doubt her testimony and concluded that the appellant has
committed repetitive penetrative sexual assault upon the victim and
11
(1996) 2 SCC 384
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the said act comes within the ambit of section U/s.376(2) (n) of IPC r/w
Section 6 of POCSO Act.
28. On the basis of the aforesaid findings, the learned Special Court
concluded that the prosecution had successfully established the offence
under section 363/365/366/376(2)(f)/376(2)(n) of IPC and Section 6 of the
POCSO Act and accordingly he is convicted by virtue of section 235(2)
of Cr.P.C. Consequently, the accused was convicted and sentenced to
undergo rigorous imprisonment for a period of twenty years under
section 6 of the POCSO Act and a fine of Rs. 50,000/- in default whereof
he shall undergo rigorous imprisonment one year. In view of the
provision U/s.42 of the POCSO Act, no any separate sentence for the
offence under Section 376(2)(f)/376(2)(n) of IPC. The appellant is further
sentenced to rigorous imprisonment for a period of three years under
section 363 of IPC and to pay a fine of Rs. 1,000/- in default whereof he
shall undergo rigorous imprisonment for six months. Further
sentenced to undergo rigorous imprisonment for a period of three
years under Section 365 of IPC He is further directed to pay a fine of Rs.
1,000/- in default whereof he shall undergo rigorous imprisonment for
six months. The appellant is also sentenced to undergo Rigorous
Imprisonment for a period of five years under section 366 of IPC and a
fine of Rs.5,000/- in default whereof he shall undergo rigorous
imprisonment six months and all the substantive sentences to run
concurrently.
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V. C OURT ’ S R EASONING AND A NALYSIS :
29. Heard Learned Counsel for the parties and perused the documents
placed before this Court.
30. It is a well-entrenched principle of the criminal jurisprudence that the
law in all of its wisdom and protective foresight, consciously draws a
clear and inviolable distinction between a “major” and “minor”. This
distinction is not merely procedural in character, rather it constitutes
the very foundation upon which the edifice of child protection
jurisprudence stands. In the present case, as per the High School
Certificate of the Appellant annexed with the IA No. 793/2026, his date
of birth stands to be on 01/02/2003. Therefore, on the day of occurrence
he was aged about 17 years 9 months and 17 days thereby rendering
him to be a minor within the meaning of law. This factual position is of
considerable legal significance as the present case is not about an adult
accused preying upon a child, instead concerns two adolescents
standing on the threshold of attaining majority. The law undoubtedly
extends unwavering protection to the minors, particularly in cases
involving sexual offences, however, it must simultaneously recognize
the delicate distinction between predatory criminal conduct and
consensual adolescent relationships arising out of youthful emotional
vulnerability.
31. Under the POCSO Act, the definition of child has been provided under
Section 2(d) which states that child means any person who is below the
age of 18 years. Further, under the Juvenile Justice Act, 2015 Section
2(12) also defines child as a person who has not completed the age of 18
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years. In the present case, the victim as well as the Appellant falls
within the age limit provided within this Act. This factual background
makes it important for this Court to take due note of the circumstances,
psychological behaviour and the level of maturity the parties had at the
time of occurrence of the event. The criminal jurisprudence in India
makes clear demarcation on how a child in conflict with law should be
dealt with by the Courts. Section 2(13) of the Juvenile Justice Act, 2015
defines child in conflict with law as a child who is alleged or found to
have committed an offence and who has not completed the age 18
years on the date of commission of such offence. Although, the
Appellant was on the verge of attaining majority, the exclusive
definition clarifies that the Appellant was a minor on the date of
occurrence. Though there is no doubt that the offences alleged to have
been committed by the Appellant are heinous in nature, the consequent
IPC sections are not directly applicable without taking due
consideration of the Juvenile Justice Act.
32. The alleged criminal offences that have been charged against the
Appellant are hereby discussed with special emphasis to the
applicability of the sections under the statutes, viz. POCSO Act and
IPC. In the present case, it is alleged that the Appellant took the victim
away from her lawful guardianship, thereby attracting the provisions
of Sections 363, 365 and 366 of IPC. These sections stand as follows:
“ 363. Punishment for kidnapping .—Whoever kidnaps
any person from 1[India] or from lawful guardianship,
shall be punished with imprisonment of either description
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for a term which may extend to seven years, and shall also
be liable to fine.
365. Kidnapping or abducting with intent secretly
and wrongfully to confine person .—Whoever kidnaps
or abducts any person with intent to cause that person to
be secretly and wrongfully confined, shall be punished
with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine.
366. Kidnapping, abducting or inducing woman to
compel her marriage, etc. —Whoever kidnaps or abducts
any woman with intent that she may be compelled, or
knowing it to be likely that she will be compelled, to marry
any person against her will, or in order that she may be
forced or seduced to illicit intercourse, or knowing it to be
likely that she will be forced or seduced to illicit
intercourse, shall be punished with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine; 1[and whoever, by means of
criminal intimidation as defined in this Code or of abuse of
authority or any other method of compulsion, induces any
woman to go from any place with intent that she may be,
or knowing that it is likely that she will be, forced or
seduced to illicit intercourse with another person shall also
be punishable as aforesaid].
376. Punishment for rape .— (2) Whoever,—
(f) being a relative, guardian or teacher of, or a person in a
position of trust or authority towards the woman, commits
rape on such woman; or
(n) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a term
which shall not be less than ten years, but which may
extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural
life, and shall also be liable to fine.”
33. The Section 6 of POCSO Act which has been one of the provisions
under which the Appellant has been convicted which stands as,
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“ 6. Punishment for aggravated penetrative sexual
assault .—(1) Whoever commits aggravated penetrative
sexual assault shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years, but
which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of natural life of that person
and shall also be liable to fine, or with death. (2) The fine
imposed under sub-section (1) shall be just and reasonable
and paid to the victim to meet the medical expenses and
rehabilitation of such victim.”
34. The term “whoever” is very broad in its literal sense which may
include any person irrespective of his age. But when a minor is alleged
to have committed heinous offence, it is the Juvenile Justice Act that is
to be referred to, ensure a special approach while understanding the
psychological and mental maturity of the child in conflict with law and
focuses on reform, counselling and reintegration to the society. The
Juvenile Justice Act also specifically discussed the age bracket of a child
between the age of 16 to 18 years who has committed any heinous
offence as under Section 15 of the Act.
“ 15. Preliminary assessment into heinous offences by
Board .—(1) In case of a heinous offence alleged to have been
committed by a child, who has completed or is above the age
of sixteen 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 the circumstances in which
he allegedly committed the offence, and may pass an order in
accordance with the provisions of sub-section (3) of section
18: Provided that for such an assessment, the Board may
take the assistance of experienced psychologists or psycho-
social workers or other experts.”
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35. With this current factual matrix in consideration, the Learned Trial
Court has erred in the procedural requirement of the said provision of
the Juvenile Justice Act and continued with the trial of the Appellant.
12
In the case of Thirumoorthy v. State of T.N. , the Hon’ble Apex Court
has discussed and held that there must be mandatory preliminary
assessment of the alleged offences committed by the minor as per the
Section 15. This has been discussed as below that,
“32. There is no dispute on the aspect that the offences of
which the appellant-accused was charged with, fall within
the category of “heinous offences” as defined under Section
2(33) of the JJ Act. Section 15(1) provides that in case where
a heinous offence(s) are alleged to have been committed by a
child who has completed or is above the age of sixteen 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 the circumstances in which he committed the offence.
The Board, after conducting such assessment, may pass an
order in accordance with the provisions of sub-section (3) of
Section 18 of the JJ Act. Section 15(2) provides that where
the Board is satisfied on preliminary assessment that the
matter should be disposed of by the Board, then the Board
shall follow the procedure, as far as may be, for trial of
summons case under CrPC. Under first proviso to this sub-
section, the order passed by the Board is appealable under
Section 101(2) of the JJ Act.
35. The procedure provided under Sections 15 and 19 has
been held to be mandatory by this Court in Ajeet
Gurjar v. State of M.P. [Ajeet Gurjar v. State of M.P.,
(2023) 15 SCC 678] 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”.
12
(2024) 12 SCC 307
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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.”
13
36. Further in case of Shilpa Mittal v. State (NCT of Delhi) , the Hon’ble
Apex Court had held that,
“ 34 . From the scheme of Sections 14, 15 and 19 referred to
above it is clear that the legislature felt that before the
juvenile is tried as an adult a very detailed study must be
done and the procedure laid down has to be followed. Even
if a child commits a heinous crime, he is not automatically
to be tried as an adult. This also clearly indicates that the
meaning of the words “heinous offence” cannot be
expanded by removing the word “minimum” from the
definition.
This case herein discusses that there is an emphasis on preliminary
assessment by the Juvenile Justice Board before trying the child in
conflict with law as an adult before the Trial Court.
14
37. In case of Salil Bali v. Union of India , the Hon’ble Supreme Court
has adjudged that,
“63. …The age of eighteen has been fixed on account of the
understanding of the experts in child psychology and
behavioural patterns that till such an age the children in
conflict with law could still be redeemed and restored to
mainstream society, instead of becoming hardened criminals
in future. There are, of course, exceptions where a child in
the age group of sixteen to eighteen may have developed
criminal propensities, which would make it virtually
impossible for him/her to be reintegrated into mainstream
society, but such examples are not of such proportions as to
13
(2020) 2 SCC 787
14
(2013) 7 SCC 705
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warrant any change in thinking, since it is probably better
to try and reintegrate children with criminal propensities
into mainstream society, rather than to allow them to
develop into hardened criminals, which does not augur well
for the future.”
It is understood from this judgment that any juvenile under the age of
18 years must be treated as a child with care who can be reintegrated
with the mainstream society instead of treating them as hardened
criminals and giving extreme punishments, such as in this matter at
hand where the Appellant was given a 20 year rigorous punishment
under Section 6 of the POCSO Act along with Rs. 50,000/- as fine.
Without giving him a chance to be treated as a child who was in
conflict with law.
38. Therefore, in the light of the above judgments stated and the reasoning
of this Court in this matter, there has been procedural fallacy on the
part of conducting the Trial by the Learned Trial Court by not giving
due regard to the fact that the Appellant was a minor on the date of
occurrence of the event. This draws the attention of the Court towards
mandatory compliance of Section 15 of the Juvenile Justice Act.
39. Furthermore, the present matter also seems to fit in the situation of
there being a love relationship between the Appellant and the victim,
which was also accepted by her through her confession statement
under Section 164 of Cr.P.C, subsequently denied by her before the
Learned Special Court, which invokes the exceptions of adolescent
consensual relationships towards to criminal offences as per the
discussions around a prospective “Romeo and Juliet” clause. In
furtherance to this, it is safe to presume that both the Appellant and the
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victim were of similar age rendering them to have equivalent
psychological and mental maturity to understand the nature and
consequences of their act. This Court shall refrain from reentering into
the question of fact which has been sufficiently dealt with by the
Learned Trial Court and would like to emphasise on the procedural
importance in matters dealing with juveniles.
ONCLUSION
VI. C :
40. I n view of the foregoing analysis and upon an anxious and meticulous
examination of the circumstances of the case, it can be seen that there
has been a conspicuous violation of the mandatory requirements of
Sections 15(1) of the JJ Act. Thus, it is evident that the procedure
adopted by the Additional District and Sessions Judge-cum Special
Court under POCSO Act, Kendrapara in GR No. 35 of 2021 (CIS
No.GR35/2021) in conducting the trial of the Appellant countermands
the mandatory requirements of the JJ Act and thereby warranting
interference by this Court.
41. The proceedings undertaken by the Learned Trial Court are not based
on a judicious appreciation of the mandate of the JJ Act and thus, the
entire proceedings stand vitiated. Accordingly, the present Criminal
Appeal deserves to be allowed. The judgment of conviction and order
of sentence passed by the Learned Trial Court are hereby set-aside.
Consequently, this Court is inclined to accede to the relief prayed for
by the Appellant to quash the proceedings and acquit him from all
charges.
42. Accordingly, the CRLA stands allowed.
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43. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
th
Dated the 15 May, 2026/-
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