Justices Rajeev Ranjan Prasad and Soni Shrivastava set aside verdict by Exclusive Special Judge (POCSO Act), Darbhanga in POCSO G.R. Case of 2019

In Sadir Quaraishi @ Md Sadir vs. The State of Bihar & Anr. (2026), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Soni Shrivastava delivered a 40-page long judgement dated June 19, 2026, wherein, it concluded:"53. In ultimate analysis, we are of the opinion that the learned trial court has erred in appreciation of the evidences available on the record. The conviction of the appellant cannot be sustained. We, therefore, set aside the impugned judgment and order of the learned trial court. The appellant shall be released forthwith, if not wanted in any other case. 54. This appeal is allowed." The judgement was authored by Justice Prasad. 

The appeal was preferred for setting aside the judgment of conviction dated July 1, 2023 and order of sentence dated 05.07.2023 passed by Exclusive Special Judge (POCSO Act), Darbhanga in POCSO G.R. Case of 2019 which arose out of Jalley P.S. Case of 2019. By the impugned judgment, the appellant wasc onvicted for the offences punishable under Section 376 AB of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act. By the impugned order, he was sentenced to undergo rigorous imprisonment for twenty years with a fine of Rs. 30,000/- under Section 376 AB of the IPC and under Section 6 of the POCSO Act, and in default of payment of fine, he shall further undergo simple imprisonment for six months. 

The prosecution case was based on the fardbeyan of the informant (maternal uncle of the victim). In his fardbeyan, the informant had alleged that two years ago, his sister was murdered by her in-laws and his brother-in-law was sent to jail. They had four children whom the informant brought to his house and some
of the children were with his relatives. One amongst the four children ‘X’ (victim) resided with the informant and studied there. The informant took care of the house. The informant had stated that there was a marriage in his sasural so he had gone there. It was alleged that on April 6, 2019, there was a marriage in the neighbourhood of the informant in which his niece was playing with other children. Sadir Qureshi resident of the same village took informant’s niece to his place by luring her and raped her. The niece came home crying and bleeding. Informant’s mother, who was herself a heart patient, became unconscious and could not tell anyone about the incident. When the informant came home, he gathered information about the incident, after which he went to police station to lodge complain. Informant had brought clothes of the victim along with the application. On the basis of the fardbeyan of the informant, FIR was registered. After investigation, police submitted chargesheet dated May 31, 2019 against the appellant for the offences punishable under Sections 376 IPC and Section 4/6 of the POCSO Act. 6. The trial court vide order June 19, 2019 took cognizance of the offences against appellant. Charges were read over and explained to the appellant in Hindi which he denied and claimed to be tried. Accordingly, charges were framed vide order dated November 15, 2019 for the offences. In course of trial, the prosecution examined eight witnesses and got exhibited certain documents.

Justice Prasad referred to the Supreme Court's decision in Pradeep vs. State of Haryana reported in AIR 2023 SC 3245, wherein, the Supreme Court has held that the conviction only on the testimony of a child witness who does not inspire confidence is not safe. The relevant paragraph of the judgment reads: “8. It is a well-settled principle that corroboration of the testimony of a child witness is not a rule but a measure of
caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution.”

The judgement recorded: "No one has appeared on behalf of the informant despite service of notice." 

Supreme Court sets aside order by Justice Rudra Prakash Mishra in a POCSO case

In Ravi Ranjan Choube @ Ravi Ranjan Choubey vs. The State of Bihar & Anr. (2026), Supreme Court's Division Bench of Justices Aravind Kumar and Prasanna B. Varale passed a 5-page long order dated May 11, 2026, wherein, it set aside the order by Patna High Court's Justice Rudra Prakash Mishra dated March 11, 2026. The order concluded:"6. It is pertinent to note at this juncture itself and for the limited purpose of considering the prayer for bail, that the statements of the recused girls which have been recorded under Section 183 of Bharatiya Nagarik Suraksha Sanhita, 2023 and particularly two victims associated with the orchestra group where petitioner was working would disclose that there were no recent evidence of sexual
assault and three co-accused Gena Sah, Rajat Sardar @Rajjat Kumar @ Rajat Kumar and Subhash Kumar have since then granted regular bail by the jurisdictional High Court. Hence, on the ground of parity, petitioner is also entitled for grant of bail. 7. The impugned order dated 11.03.2026 passed by the High Court is set aside and petitioner is ordered to be released on bail on such terms and conditions as the jurisdictional court deems fit to impose, including the condition of directing the petitioner to appear before the Trial Court on all dates of hearing."

The petitioner was arraigned as an accused No. 11 in the FIR No. 8 of 2025, registered at Police Station Women Police Station, District Betiah, for the offence punishable under Section 64, 65(1), 143(1), 145, 95, 3(5) of Bharatiya Nyaya Sanhita, 2023, Section 6, 8 and 12 of Protection of Children from Sexual Offences Act, 2012 and Section 75 and 79 of Juvenile Justice Act, 2015, Section 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act,1956 and Section 16, 17, and 18 of the Bonded Labour System (Abolition) Act, 1976, was seeking regular bail. The record disclosed that investigation had been concluded and charge-sheet was filed and two witnesses were already examined. It was the case of the prosecution that minor girls were found in various orchestra groups who had been trafficked and they were sexually exploitated. Even according to the FIR, the petitioner was neither the owner or Manager of the orchestra group and he was only a employee (Announcer) in Chhoti New Musical Orchestra Dhamaka Group.

Earlier, in Ravi Ranjan Choube @ Ravi Ranjan Choubey vs. The State of Bihar & Anr. (2026), Justice Rudra Prakash Mishra of Patna High Court had passed a 3-page long order dated March 11, 2026, wherein, he concluded:"...the prayer for bail of the petitioner is again rejected with a direction to the court below to expedite the trial and conclude the same expeditiously preferably within a period of six months from today. If the trial is not concluded within the period of six months, as stated above, the petitioner will be at liberty to renew his prayer before the court below." The name of respondent no. 2 has been kept anonymous. 

The petitioner sought bail in connection with Bettiah Mahila P.S. case of 2025 instituted for the offences under Sections 64, 65(1), 143(1), 145, 98 and 3(5) of the Bharatiya Nyaya Sanhita, 2023, Sections 6, 8 and 12 of the POCSO Act and Sections 75 and 79 of the J.J. Act and Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act and Sections 16, 17 and 18 of the Bonded Labour System (Abolition) Act. This was the second attempt of the petitioner for bail. The petitioner had renewed his prayer for grant of regular bail which was earlier rejected on merit by Justice Mishra of the High Court vide 3-page long order dated August 13, 2025 passed in Cr. Misc. No. 31511 of 2025, taking into account the nature of accusation and the gravity of the offence and involvement of the petitioner in the offence.  

The order dated August 13, 2025 recorded that the informant filed a complaint before the ADJ, Champaran, based on an tip-off from National Commission for Protection of Child Rights (NCPCR) constituted under Juvenile Justice (Care and Protection) Act, 2015, which led to raids at seven locations by the police team. Sixteen girls were rescued. The victims gave statements under Section 180 BNSS alleging repeated sexual assaults, exploitation for dance, and being forced into sexual activities by various accused associated with different orchestra groups.

APP for the State and counsel for the informant had opposed the prayer for grant of bail to the petitioners. They submitted that on perusal of record it appeared that the several victims were minor girl. It was specifically submitted that petitioner, namely, Dhamu Sah used to inappropriately touch the body of victim, during dance on the stage, whereas petitioner, namely, Ravi Ranjan Choube @ Ravi Ranjan Choubey, had established illicit relation with one of the victims.

In compliance of the order dated January 17, 2026, a report dated February 12, 2026 with regard to the present stage of trial has been received. From perusal of the report, it appeared that two (2) out of nineteen (19) charge sheet witnesses had been examined in the case. It was also reported that trial was likely to be concluded within a period of nine months. The petitioner's counsel had submitted that the petitioner was languishing in judicial custody since February 23, 2025 without any rhymes or reason, having no criminal antecedent. The counsel for the petitioner had submitted that there was no likelihood of the trial being concluded in the near future, hence, petitioner may be enlarged on bail. The APP for the State had opposed the prayer for grant of bail. The APP had further relied upon a decision of the Supreme Court reported in 2024 SCC Online SC 3539 (X. vs. State of Rajasthan & Anr.), wherein, in paragraph No.14, Supreme Court had observed as under: “14. Ordinarily inserious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court be it the Trial Court or the High Court should be loath in entertaining the bail application of the accused.”  

Justice Mishra observed: "7. There is no new ground to consider the bail petition of the petitioner. From the aforesaid report, it appears that the trial is going on." Supreme Court has reversed the order by the High Court. 

Supreme Court reverses Justice Prabhat Kumar Singh's order in a POCSO case, grants protection from arrest

In Nitish Singh @ Nitish Kumar Singh vs. The State of Bihar & Anr. (2026), Supreme Court's Division Bench of Justices Prashant Kumar Mishra and N.V. Anjaria passed a 2-page long order dated May 4, 2026, wherein, it issued notice and directed that in the meanwhile, "petitioner shall not be arrested in connection with FIR No. 141/2025 registered with Police Station-Isuapur, District-Saran, Patna subject to petitioner diligently co-operating with the investigation/ trial." The respondent no. 2 is Pooja Devi, wife of Ajay Dubey, Nawada, Isuapur, Saran. The petitioner's counsel submitted that the petitioner’s mother had lodged a complaint against the opposite party on June 12, 2025 and thereafter, as a counter blast, the present FIR was lodged on July 23, 2025 alleging sexual assault but, there is no allegation of penetrative sexual assault.

Earlier, Justice Prabhat Kumar Singh of Patna High Court had passed an order dated February 2, 2026, wherein, he concluded:"5 . Considering the nature of accusation , statement of the victim recorded under section 183 BNSS and gravity of offence , prayer for pre-arrest bail of the petitioner is rejected."upon hearing the application of the petitioner who apprehended arrest in a case registered for the offence punishable under section Section 115 (2), 126 (2), 65 (2), 351 (2), 352, 3 (5) of BNS,  4/8, POCSO Act. As per F.I.R. petitioner was alleged to have misbehaved with the minor daughter of informant and had also touched her private parts. The victim in her statement recorded under Section 183 of BNSS supported the prosecution case.

Justices Bibek Chaudhuri, Chandra Shekhar Jha modify order of conviction and sentence by Special Judge, POCSO Court, Vaishali in case from 2016

In Birju @ Raja vs. The State of Bihar Bihar (2026), Patna High Court's Division Bench of Justices Bibek Chaudhuri and Chandra Shekhar Jha delivered a 31-page long judgment dated April 10, 2026, wherein, it concluded:"....we modify the order of conviction and sentence passed against the appellant. 54. The appellant, namely, Birju @ Raja, is convicted under Section 235(1) of the Cr.P.C. for the offence punishable under Section 366 and Section 376 of the I.P.C. In respect of  other offences, charged, the appellant is acquitted.55. For the offence punishable under Section 366 of the I.P.C., the appellant is liable to be sentenced to suffer imprisonment of either description, for a term which may extend to 10 year and shall also be liable to fine. 56. For the offence punishable under Section 376 of the I.P.C., he shall also be punished with imprisonment of either description, which shall not be less than 10 years, but which may extend to imprisonment for life and shall also be liable to fine." Justice Chaudhuri authored the judgement. 

The offences Sections 366 and 376 of the IPC are serious and non-bailable offences of sexual violence. Section 366 deals with kidnapping, abducting, or inducing a woman to compel marriage or force illicit intercourse. Section 376 defines the punishment for rape.

The judgement added: "57. We have considered the fact that the appellant is a young man. No previous offence was proved against him. Undoubtedly, he committed a heinous offence but considering the age of the appellant and the fact that his entire life is left, when he can live a life of a responsible citizen, we propose to pass the following order of sentence: -(a) The appellant, Birju @ Raja, is sentenced to suffer rigorous imprisonment for a period of 10 years with fine of Rs. 20,000/-, in default to suffer further imprisonment of six months for the offence punishable under Section 366 of the I.P.C.  (b) The appellant is also sentenced to suffer rigorous imprisonment for 10 years and also to pay fine of Rs. 20,000/-, in default to suffer further imprisonment for six months for the offence punishable under Section 376 of the I.P.C. (c) Substantive sentence of imprisonment shall run concurrently. However, sentence for non-payment of fine shall run separately. (d) If the fine amount is realized, 80 per cent of the said fine amount be paid to the victim no. 1 as compensation. 58. The appellant is acquitted of the remaining charges."

Justice Chaudhuri observed:"....we would like to observe at the outset that every accused is presumed to be innocent unless proved guilty. The presumption of innocence is a human right. However, subject to statutory exceptions, the said principle forms the bedrock of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and its gravity must be taken into consideration. The Courts must remain vigilant to ensure that the application of such presumption does not result in injustice or mistaken conviction. Under the Prevention of Children from Sexual Offences Act, the concept of reverse burden has been introduced, as in certain other serious offences under enactments such as the NDPS Act, Negotiable Instrument Act, Prevention of Corruption Act and Terrorist and Disruptive Activities (Prevention) Act, etc. The provisions contained in the aforesaid enactments and particularly in Sections 29 and 30 of the POCSO Act, 2012, are in the nature of an exception to the general principle that the burden of proof always lies upon the prosecution. In the instant case, since we are concerned with the principle of reverse burden contained in Section 29 and 30 of the POCSO Act, we propose to deal with the law relating to reverse burden POCSO Act."

The judgement drew on the decision in Sachin Baliram Kakde vs. State of Maharashtra, reported in 2015 SCC OnLine Bom 8972, the Supreme Court in the context of presumption under Section 29 of the POCSO Act, 2012, held as follows: - “18. Thus, when a person is prosecuted for commission of the offence specified in the said section, the Court is required to presume that he said person has committed the said offence unless the contrary is proved. 19. The presumption, however, cannot be said to be irrebuttable. Infact, no presumption is irrebuttable in law, as this cannot be equated with conclusive proof. The provisions of section 29 of the POCSO Act mandates the Court to draw the presumption unless contrary is proved. 20. One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law, they fly in a twilight but vanish in the light of facts.” 30. It is no longer res integra that the presumption under Section 29 of the POCSO Act is not absolute. It is the duty of the prosecution to prove the foundational fact of the case, and only thereafter can the presumption under Section 29 and 39 be invoked. The statutory presumption stands activated only upon proof of the foundational facts by the prosecution. Even once such presumption is activated, the burden upon the accused is not to rebut the same beyond reasonable doubt. It is sufficient if the accused is able to create a serious doubt regarding the veracity of the prosecution case or brings on record material, rendering the prosecution version highly improbable. 31. Bearing this principle in mind, this Court shall now appreciate the evidence on record in order to come to a definite finding and the final conclusion in the instant appeal."

Res integra refers to legal issues that remain unresolved or untouched by precedent, affording judges the discretion to decide.  

The judgement reads:"41. We are not unmindful to note that in every case of rape, there must be physical injury around the private part and other parts of the body of the victim where there is complete subjugation out of fear and the victim found that any resistance against such act of the accused would be futile effort. Absence of injury does not support a case of consensual sex. 42. On the question as to whether the physical relationship between the appellant and the victim no. 1 was consensual or she was forced to commit sexual intercourse, the evidence of victim as well as circumstances leading to such activity are relevant. In Premkumar (supra), the Hon'ble Supreme Court held that physical relationship between the victim and the accused was consensual because of the fact that it appeared in evidence that the victim and the accused had love relationship for long. In the instant case, on the contrary, it is specifically denied by the victim no. 1 that she had love relationship with the appellant. In the F.I.R. also, the informant, being the uncle of the victim no. 1, stated that the appellant and two other boys used to disturb the victims for quite some time. Therefore, there is absolutely no evidence that the victim had love relationship with the appellant." It referred to the decision in Nirmal Premkumar v. State, reported in 2024 SCC OnLine SC 260, which was cited by the counsel of the appellant.

The criminal appeal had challenged the judgement, dated September 26, 2018, whereby and whereunder, the appellant was convicted under Section 235(1) of the Cr.P.C. for committing an offence punishable under Sections 363/376(2)(i) of the Indian Penal Code and Section 4/6/10 of the POCSO Act, 2012. By an order dated October 5, 2018, the Additional Sessions Judge-cum-Special Judge, Vaishali at HM Hjipur sentenced the appellant to undergo rigorous imprisonment for 10 years with fine of Rs. 20,000/- for the offence under Section 363 read with Section 34 of the I.P.C. He was also sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. 20,000/- for the offence punishable under Section 366A read with Section 34 of the I.P.C. The appellant was further sentenced to suffer imprisonment for 12 years and fine of Rs. 25000/- for the offence punishable under Section 376 (2)(i) read with Section 34 of the I.P.C. Further sentence of rigorous imprisonment of 12 years with fine of Rs. 25,000/- for the offence punishable under Section 4 of the POCSO Act, 2012. Further sentence of rigorous imprisonment for 10 years with fine of Rs. 20,000/-. Further sentence of rigorous imprisonment for 12 years and fine of Rs. 25000/- for the offence punishable under Section 6 of the POCSO Act, 2012 and further sentence of rigorous imprisonment for 7 years and fine of Rs. 10,000/- for the offence punishable under Section 10 of the POCSO Act, 2012. It was also directed that the appellant shall suffer simple imprisonment for 5 months each for non-payment of fine amount on each count. All the sentences of rigorous imprisonment were directed to run concurrently. 

In the appeal, the appellant had challenged the  judgement of conviction and sentence on the following grounds:(a) Prosecution failed to bring home the charge against the accused; (b) No eye-witness to support the case of kidnapping of the minor girl of the informant, and her friend could be examined by the prosecution; (c) The Investigating Officer failed to ascertain the registration no. and identity of the Scorpio Car, with the help of which the victims were kidnapped. (d) The prosecution failed to prove the place of illegal confinement of the victims; (e) Prosecution also failed to prove involvement of three accused persons in the offence as alleged; (f) The prosecution case is full of contradiction with the evidence; and (g) The learned Trial Judge held the appellant guilty for the offence only on the basis of statement of the victim under Section 164 of the Cr.P.C. without considering the fact that such statement is only corroborative in nature."

The case was that one Sonu Kumar of village-Ajmatpur within the Police Station-Rajapakar in the district of Vaishali lodged a written complaint on July 3, 2016, stating, that on July 3, 2016 at about 07.00 a.m., her niece Soni Kumari, daughter of Binay Kumar Sharma, aged about 14 years along with one Savita Kumari, a minor girl aged about 13 years went to Ghora Chowk, which was stated to be at a distance of about 1 k.m. away to purchase some biscuits. However, they did not return even after considerable period of time. The informant came to know from the parents of his niece that three young men of village Baranti, namely, Birju @ Raja, Chhotu Kumar and Ranjan Singh, used to eve-tease and disturb them for some period of time. The informant made a complaint against them to their respective parents and they assured that their respective sons would not further commit such wrong in future. As the victim girls did not return to their respective homes, the informant suspected that had been kidnapped for some illicit purpose and lodged the complaint so that no harm might be caused to the said minor girls. On the basis of the said complaint, police registered a case, dated July 4, 2016, under Section 363/366A. 

Upon completion of investigation, the police submitted a charge-sheet against all three accused persons under Section 363/366A/376(2)(i) of the I.P.C. and Section 4/6/8/10 of the POCSO Act, 2012. Since the charge-sheet was submitted under the POCSO Act, 2012, the case was committed to the Court of the Special Judge, POCSO Court, Vaishali at Hajipur for trial and disposal. During trial, the prosecution examined 10 witnesses. On the basis of the evidence on record, both the oral and documentary, the trial judge convicted the accused//appellant and sentenced him to suffer rigorous imprisonment on different heads of charges.

The judgement was challenged in the High Court. The counsel for the appellant submitted that nobody saw the appellant or his associates to elope the victim girls from Ghora Chowk. It is the case of the prosecution that the victim girls were taken to Kolkata by the appellant and his associates but the Investigating Agency could not identify the space where the victims were allegedly confined. As per the prosecution case, they were allegedly kidnapped on July 3, 2016. The victim no. 1 was recovered from the side of the high road near her village in the early morning of July 22, 2016. After recovery, she was taken to the Police Station. Thereafter, her medical examination was done. Victim’s statement under Section 164 Cr.P.C. was recorded on the date of her recovery, i.e., on July 22, 2016. Victim No. 2 was also confined in the same room along with victim no. 1. According to her, she stayed with the accused persons for three days. Thereafter, she somehow fled away and informed the incident to an Auto Driver. The Auto Driver handed her over to the police of Kolkata. She was sent to a Home run by Childline for about two months. Thereafter, in the month of September, she was recovered by the Investigating Officer. It was also submitted that there is absolutely no witness examined by the prosecution during trial, who corroborated the prosecution case regarding involvement of the appellant. 

Justice Chaudhuri observed:"We also find that though the victim claimed that sh.e was aged about 15 years at the relevant point of time, the radiologist opined after conducting ossification test that the victim was aged between 17 and 19 years. If we consider the margin of errors to two years, then the approximate age of the victim at the relevant point of time was either 17 years or 21 years. It is needless to say that the margin of error shall be taken into consideration on the higher side to the benefit of the appellant. 50. The Investigating Officer did not take any attempts to seize:- (i) Date of birth certificate of the school or the matriculation or equivalent certificate from the concerned Examination Board, if available and in the absence thereof; (ii) Birth certificate given by a corporation or a municipality authority or a Panchayat; and (iii) only in absence of (i) and (ii) above, age shall be determined by an ossification test or any other medical age determination test. 51. In the absence of any birth certificate from the school or birth certificate given by the corporation, we have no other alternative but to rely on the ossification test of the victim, on perusal of which it is very uncertain to note that the victim was a minor on the date of commission of offence. 52. Even assuming that the victim was a major and she was subjected to rape by the appellant and for commission of such offence, she was abducted and forcibly confined in a room, the appellant is liable to be convicted under Section 366 for forcing the victim to illicit intercourse and Section 376 of the I.P.C." 

Justice Soni Shrivastava as part of Division Bench sets aside judegment of Special Judge, POCSO Act, Bhagalpur

In Md Quarban vs. The State of Bihar & Anr. (2026), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Soni Shrivastava delivered a 26-page long judgement dated April 6, 2026, wherein, it concluded:"42. All these inconsistencies and conflicting versions of the prosecution case which is apparent from the deposition of the prosecution witness render the prosecution case considerably doubtful. The failure of the prosecution to prove the foundational facts with regard to age and sexual assault makes the entire edifice of the prosecution crumble against the weight of evidence." The judgement was authored by Justice Soni Shrivastava. 

Justice Shrivastava added: "43. In view of the aforesaid facts and circumstances and on account of all the foregoing reasons, including the consideration of several missing links and loopholes in the case of the prosecution, we come to a clear finding that the circumstances and evidence on which the conclusion of guilt has to be drawn, has not been fully established and the appellant is entitled to be extended benefit of doubt, inasmuch as, the prosecution hasmiserably failed to prove its case by adducing credible and trustworthy evidence. 44. Thus, in the totality of the facts and circumstances and also taking into account the overall perspective and the entire conspectus, it would be extremely unsafe to sustain the conviction of the appellant, as such, the finding of conviction recorded by the learned Trial Court is not sustainable and requires interference. Accordingly, the impugned judgment of conviction dated 18.03.2023 and the order of sentence dated 22.03.2023 passed by the learned Additional District and Sessions Judge-VI-cum-Special Judge, POCSO Act, Bhagalpur in POCSO Case No.35 of 2020, arising out of Sabour P.S. Case No.361 of 2018, is hereby set aside and the appellant is acquitted of all the charges levelled against him. 45. The appellant, who is said to be in custody, is directed to be released forthwith, if not required in any other case."  

The appeal was preferred against the judgment of conviction dated March 18, 2023 and the order of sentence dated March 22, 2023 passed by the Additional District and Sessions Judge-VI-cum-Special Judge, POCSO Act, Bhagalpur in POCSO Case No. 35 of 2020, arising out of Sabour P.S. Case No. 361 of 2018. 3. By the impugned judgment, the appellant has been convicted and was sentenced for the offences punishable under Section 363, IPC for rigorous Imprisonment for seven years along with fine of Rs. 50,000/, Section 341 IPC for simple Imprisonment for one year or fine of Rs. 500/, Section 323 IPC for simple Imprisonment for one year and fine of Rs. 1000/, Section 504 IPC for rigorous imprisonment for 2 years and fine of Rs. 1,000/ and Section 4 of POCSO Act for rigorous imprisonment for 20 years along with fine of Rs. 1 lakh.

The prosecution case based on the written report of the informant alleged that the minor daughter (aged about 14 years) of the informant had gone for her tuition classes 15 days back, but did not return. He frantically searched for his daughter but did not get to know of her whereabouts. When he could not find out anything even from his relatives, he gave the written application on December 28, 2018 before police.
Based on the written application, a Sabour P.S. Case was registered against unknown for the offences punishable under sections 363 and 365 of IPC. After investigation supplementary charge-sheet was submitted against the present appellant under sections 366A, 376, 341, 323, 504, 506, 427/34 of the IPC and section 6/8 of POCSO Act, whereafter cognizance was also taken under these provisions by the Special Court POCSO, Bhagalpur. 

The trial Court on August 10, 2021, framed the charges against the appellant under sections 341, 323, 376, 366 A, 427 of IPC and 4 and 8 of POCSO Act and the same were explained to him to which he pleaded not guilty and claimed to be tried. The prosecution in order to substantiate its case examined as many as five witnesses and exhibited some documents on its behalf. The trial court decided the primary issue relating to the minority of the victim and recorded the fact that while the victim’s age was disclosed as 14 years in both the FIR and the statement of the victim under section 164 Cr.P.C, the Magistrate had assessed her age as 15 years. The medical report indicated her age to be between 16 to 18 years. The date of birth of the victim as per her Registration Card in the Bihar School Examination Board was recorded as January 25, 2004. It reached the conclusion that the victim was undoubtedly a minor on the basis of the document.

The trial court has thus concluded that the solitary evidence of the victim itself was sufficient for proving the guilt of the accused and since there are no apparent contradictions in the prosecution evidence to doubt the veracity of the same, the prosecution has been able to prove its case beyond reasonable doubts. However, while holding that the case was proved under sections 323, 341, 376, 504 of the IPC along with section 4 of the POCSO Act and additionally finding the case to be proved under section 363 IPC also (under which no charge was framed), the accused/appellant was acquitted of the charges under Section 427, 506, 366 A of the IPC and Section 8 of the POCSO Act as the same was held to be not proved beyond reasonable doubt. 

Justice Shrivastava observed: "28. After having analysed the trend of evidence as disclosed by the victim (PW3), it would be difficult to place her in the category of ‘sterling witness’ whose evidence would be complete and sufficient in itself to base a conviction, as such, the evidence of victim (PW3) must undergo a strict scrutiny through the well-settled legal principles as established by law in a catena of decisions." 

She drew on Supreme Court's decision in Rai Sandeep alias Deepu vs. State (NCT of Delhi) reported in (2012) 8 SCC 21, wherein, it said “22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

This view was further reiterated by a 3-Judgebench of the Supreme Court in Nirmal Prem Kumar & Anr. vs. State represented by Inspector of Police, (2024 INSC 193) Cr. Appeal No. 1098 of 2024 disposed off on March 11, 2024.

The High Court's judgment took note of the inordinate delay of 15 days in lodging the FIR. 

Justice Shrivastava  observed: "This fact compels this court to take a view that there is something more in this case that meets the eye, as no father whose daughter went missing or was kidnapped would wait for fifteen days for lodging an FIR. Further, the medical examination of the victim conducted by the medical officer (PW4) reveals that there was no physical or chemical injury on her body including her private parts and upon pathological investigation no spermatozoa was detected in the vaginal swab, however the urine pregnancy test was found positive. 31. Her age was assessed between 16 to 18 years but no evidence of any recent sexual assault has been noted by the doctor, thereby making it abundantly clear that even the medical report (Ext. P1)does not stand in support of the contentions of the victim. Merely because the pregnancy test was found to be positive, it would not lead us to the irresistible conclusion that the entire prosecution story narrated against the appellant has an element of truth and there could be other reasons, including one of consensual sexual relation, leading to the pregnancy of the victim. 32. The issue of a consensual sexual relation brings us to the crucial question as to whether the victim was actually a minor and whether her age determination was done in consonance with the procedure laid down under Section 94 of Juvenile Justice Act, 2015. With regard to the minority of the victim, the only document which has been brought on record is the Registration Card (Exhibit- P4) issued by the Bihar School Examination Board, wherein her date of birth is recorded as 25.01.2004. This document has been proved and marked as Exhibit P4 by the victim herself and no other evidence has been adduced in support of the said document. Neither the school admission register has been produced nor the headmaster of the concerned school has been brought forward for examination in order to lend support to the case of the victim that she was a minor at the relevant period. Further, the fact that all the witnesses including the I.O., have maintained a curious and suspicious silence on the aspect of age of the alleged rape victim, is very intriguing and raises considerable doubt in the mind of this court with regard to the minority of the victim. None of the victim’s family members i.e. her sister or her father, have mentioned a word about the age of the victim in their deposition made in the Court. The victim too has remained effectively silent on the said aspect and only on recall for recording further examination-in-chief after about 10 months of her cross-examination, she produced the above-mentioned Registration Card which was marked as Exhibit-P4. Such evidence may be
admissible but its evidentiary value, in the entire scenario, gets lost, especially in absence of any supporting evidence and non-examination of the maker of the said document to vouchsafe of the contents thereof. Exhibit-4 did not form part of the charge-sheet and the police papers supplied to the accused."

She added, " Since the determination of age has not been done in accordance with law and there is no other evidence, much less clinching, to establish the minority of the victim, this court would go on to consider the medical evidence whereby the doctor has assessed her age to be between 16 and 18 year

In Ram Suresh Singh versus Prabhat Singh and Another, reported in (2009) 6 SCC 681 and Om Prakash versus the State of Rajasthan and Another, reported in (2012) 5 SCC 201, the Supreme Court took a view that radiological examination for purpose of age determination was not very reliable and there was always a possibility of an error of plus and minus two years. 

In Rajak Mohammad vs. H.P, reported in (2018) 9 SCC 248, the court laid down that the age determination on the basis of radiological examination may not be accurate determination and thus sufficient margin on either side has to be allowed. The judgment reads: “9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.”

In Santosh Prasad Vs. State of Bihar reported in (2020) 3 SCC 443, the Court held that solitary version of prosecutrix in a case under Section 376 of the IPC, was not to be taken as gospel truth in absence of any other supporting or corroborative evidence. It had also considered the factum of delay in lodging of the First Information Report as also the fact that the medical report of the victim did not support the allegations made by her and considering all these facts cumulatively, the accused was acquitted giving him the benefit of doubt.

Justice Shrivastava observed: "40. Similarly, in the present case in view of the fact that the victim has been giving vacillating statements with regard to the manner of occurrence and these inconsistencies in the prosecution’s narrative significantly undermines the credibility of the prosecution version and takes away the veracity of the evidence of the victim. We also take into consideration the fact that there is total want of evidence on record to corroborate the case of the victim and it appears that for the reasons best known to the prosecution, material witnesses who could have shed some light on correct facts have also been withheld. 41. The cloud of doubt upon the entire prosecution case starts form the very inception as the informant (PW2) did not lodge an FIR upto fifteen days of her daughter being allegedly kidnapped which is not a normal phenomenon. Moving further, the factum of non-raising of alarm by victim while being forcibly taken away on a motorcycle points towards a probability of a consensual act with no resistance offered at the end of the victim. The age of the appellant at the relevant period being about 19 years i.e., of the same age group as the victim, further contributes to such a probability. The evidence of both the father and the sister of the victim during trial failed to lend support to the case of the prosecution. PW1, the sister of the victim, rather stands out as she has deposed no incident happened in her presence which is absolutely contradictory to the story as propounded by the victim." Consequently, the Division Bench allowed the appeal.

Justices Rajeev Ranjan Prasad led Division Bench sets aside trial court's judgment, acquits appellant in a POCSO case

In Ranjeet Sah vs. The State of Bihar (2025), Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Ajit Kumar delivered a 41-page long judgement dated October 7, 2025, wherein, it set aside trial court's judgment and acquitted the appellant in a POCSO case. The judgement records that although ''the informant-victim has entered appearance by filing vakalatnama but no one appeared on her behalf to oppose the appeal.'' 

The judgment was authored by Justice Prasad. He concluded:''55. In result, we set aside the impugned judgment and order and acquit the appellant of the charges giving him benefit of doubt. 56. The appellant is said to be in custody, hence he is ordered to be released forthwith, if not wanted in any other case.''

The judgment was delivered after hearing the appeal preferred for setting aside the judgment of conviction dated January 5, 2023 and the order of sentence dated January 18, 2023 passed by Additional Sessions Judge-VI-cum-Special Judge (POCSO), Gopalganj in POCSO case of 2018. The trial court had convicted the appellant for the offences punishable under Sections 376(3) of the Indian Penal Code (IPC) and Section 5(m)/6, 9(m)/10 of the Protection of Children from Sexual Offences Act (POCSO Act). By the impugned order, he was ordered to undergo rigorous imprisonment for twenty years with a fine of Rs.50,000/- under Section 376(3) IPC. He had also been ordered to undergo five years rigorous imprisonment under Section 9(m)/10 of the POCSO Act with a fine of Rs. 20,000/. Both the sentences were to run concurrently.

The prosecution case was based on the fardbeyan of the mother of the victim, PW-1 recorded by S.I. Sarita Kumari, SHO, Mahila P.S. Gopalganj on September 9, 2018 at 15:30 Hours at the Mahila P.S. Gopalganj. In it she had stated that on September 8, 2018 at about 4 PM, her daughter came crying from ‘bathan’ which is situated near her house and after much asking, she fell asleep crying. On the next day i.e. September 9, 2018, her daughter told her that September 8, 2018 at 3 PM, when she was playing near the ‘bathan’, Ranjit Sah, the appellant came there and took her to his house to boil milk where he closed the door and threatened her to kill with a sword, thereafter, committed wrong act with her. The informant alleged that the appellant threatened her not to tell this to anyone otherwise he will kill her with sword. Because of this threat, her daughter did not tell her anything the night of September 8, 2018. The informant alleged that a boy of his village, namely, Raju when heard the crying of her daughter knocked the door of the appellant and when he opened the door, the victim somehow managed to escape. The informant alleged that this appellant committed wrong act with her daughter. 

On the basis of this fardbeyan, Barauli P.S. Case No. 204 of 2018 dated September 9, 2018 was registered under Sections 376(2) IPC and Section 4/5(m)/6 of the POCSO Act against the appellant. After investigation, police submitted chargesheet dated November 17, 2018 under Section 376(2) IPC and Section 4/6/8/10 of the POCSO Act. Thereafter, by order dated December 17, 2018, trial court took cognizance of the offences under the mentioned Sections. The charges were read over and explained to the appellant in Hindi to which he pleaded not guilty and claimed to be tried, accordingly, vide order dated 02.01.2019, charges were framed under Section 376(2) IPC and Section 5(m)/6 and 9(m)(n)/10 of the POCSO Act. In course of trial, the prosecution has examined altogether seven witnesses and exhibited several documentary evidences. Thereafter, the statement of the appellant was recorded under Section 313 of the CrPC. He took a plea that he was innocent. No oral or documentary evidence was adduced on behalf of the Defence. 

After arguments on several dates, one application was filed in the trial court on November 4, 2022 on behalf of the prosecution with a prayer for alteration of the charges. A request was made to alter the charge of Section 376(2) IPC to Section 376(3) IPC on the ground that on September 8, 2018 Section 376(3) was already there but due to a typographical error Section 376(2) IPC was mentioned. The said application was moved on December 2, 2022. On perusal of the order dated December 2, 2022, it is apparent that the defence side did not raise any objection and made a submission that if the charge was altered then the defence would not cross-examine the prosecution witnesses. The trial court noted that the date of occurrence was September 8, 2018, therefore, charge should be framed under Section 376(3) in place of Section 376(2) IPC. Accordingly, the charge was altered which the accused denied. The trial court recorded that because the defence does not want to cross-examine the wintesses on the alteration of charge, therefore, the record is fixed for argument. 

Section 376 (3) of IPC  reads: ''Whoever, commits rape on a woman under sixteen years of age 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 that person's natural life, and shall also be liable to fine:” Its proviso reads: ''Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim.'' 

The provision makes it clear that if a person is convicted for offence punishable under Section 376 (3) of IPC, he would have to suffer minimum sentence of rigorous imprisonment for not less than 20 years. Sections 216 and 217 of Cr.P.C are relevant in this regard.

Section 216 of Cr.P.C. provides that any court may alter or to add any charge at any time before judgment is pronounced. Section 216 reads:-
“216. Court may alter charge. (1)Any Court may alter or add to any charge at any time before judgment is pronounced. 
(2)Every such alteration or addition shall be read and explained to the accused.
(3)If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4)If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or
adjourn the trial for such period as may be necessary. 
(5)If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

Section 217 of Cr.P.C. reads:. Recall of witnesses when charge altered. Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed—(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any further witness whom the Court may think to be material.” 

Justice Prasad recollected in para 9, 10 and 11 the decision in R. Rachaiah vs. Home Secretary, Bangalore (2016) 12 SCC 172. In para 9, it held that the conviction under Section 302 IPC was clearly vitiated as the same was in violation of the mandatory procedure prescribed under Sections 216 and 217 of the Code. Paragraph ‘10’ and ‘11’ of the judgment reads as under:-
“10. The bare reading of Section 216 reveals that though it is permissible for any court to alter or add to any charge at any time before judgment is pronounced, certain safeguards, looking into the interest of the accused person who is charged with the additional charge or with the alteration of the additional charge, are also provided specifically under sub-sections (3) and (4) of Section 216 of the Code. Sub-section (3), in no uncertain term, stipulates that with the alteration or addition to a charge if any prejudice is going to be caused to the accused in his defence or the prosecutor in the conduct of the case, the Court has to proceed with the trial as if it altered or added the original charge by terming the additional or alternative charge as original charge. The clear message is that it is to be treated as charge made for the first time and trial has to proceed from that stage. This position becomes further clear from the bare reading of sub-section (4) of Section 216 of the Code which empowers the Court, in such a situation, to either direct a new trial or adjourn the trial for such period as may be necessary. A new trial is insisted if the charge is altogether different and distinct.
11. Even if the charge may be of same species, the provision for adjourning the trial is made to give sufficient opportunity to the accused to prepare and defend himself. It is, in the same process, Section 217 of the Code provides that whenever a charge is altered or added by the court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or resummon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstances, the court is to even allow any further witness which the court thinks to be material in regard to the altered or additional charge.”

Justice Prasad also recollected Supreme Court's decision in Sabbi Mallesu and others vs. State of A.P. (2006) 10 SCC 543, as regards the alteration of charge, the Court observed in paragraph ‘18’ and ‘19’ as
under:-
“18. Having considered the materials on record and keeping in view the submissions made at the Bar, we are of the opinion that not only no case has, thus, been made out to interfere with the judgment of acquittal passed as against the respondents in Criminal Appeal arising out of SLP(Crl.) No. 4438/2004 but also the judgment of conviction and sentence passed against the appellants Nos. 3 and 4 in Crl. Appeal No. 784/2004 herein are not sustainable as they are entitled to be given benefit of doubt as no overt act had been attributed as against them. We submissions made by the learned counsel appearing on behalf of the State that the trial Court in a case of this nature was entitled to alter the charges under Section 246 of the Criminal Procedure Code.
19. The power of the Court to alter the charges is neither in doubt nor in dispute but in terms of sub-section (2) of Section 246, Criminal Procedure Code, it was obligatory on the part of the learned Sessions Judge to bring it to the notice of the accused and explain the same to the accused. The same having not been done, it cannot be said that the requirements of Section 246 of the Criminal Procedure Code stood complied with. It must also be borne in mind that all accused were acquitted for commission of an offence under Section 147 of the Indian Penal Code.”

High Court's Division Bench observed: ''We have perused the trial court records and have noticed that there is one page application on behalf of the prosecution signed by Spl.P.P. on 04.11.2022 in which prayer has been made to alter the charge to one under Section 376(3) IPC in lieu of 376(2) IPC on the ground that by mistake of typist 376(2) has been typed in lieu of 376(3) IPC. The application has, however, not been acknowledged/shown received by the learned defence counsel. There is no endorsement that the defence counsel had no objection to the same. It is also evident that after alteration of charge the accused-appellant was not given any further opportunity under Section 313 Cr.P.C. Despite all this, since the order dated 02.12.2022 of the trial court specifically records that the defence did not want to examine the witnesses on recall, we would not rest our judgment on this ground." 

Justice Prasad observed: ''In the cases under POCSO Act the principle that presumption must prove the guilt beyond all reasonable doubt is not done away with. The trial court relied upon it without considering the objection. In our opinion, it would not be safe to attach any evidentiary value to these pages of so-called admission register (court exhibit no.01). It does not fall within the scheme of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which is required to be followed in the matter of age assessment of a victim or a child in conflict with law.'' He referred to Delhi High Court's decision in Court on its own Motion vs. State of NCT of Delhi vs. State of NCT of Delhi (Crl. Ref.2/2024 judgment dated 02.04.2024) 2024 SC OnLine Delhi 4484, as regards the assessment of age of a victim in a POCSO case, wherein, the Court held:-
“46.As an upshot of our foregoing discussion, the Reference is answered as under:-
(i) Whether in POCSO cases, the Court is required to consider the lower side of the age estimation report, or the upper side of the age estimation report of a victim in cases where the age of the victim is proved through bone age ossification test?
Ans: In such cases of sexual assault, wherever, the court is called upon to determine the age of victim based on ‘bone age ossification report’, the upper age given in ‘reference range’ be considered as age of the victim. 
(ii) Whether the principle of ‘margin of error’ is to be applicable or not in cases under the POCSO Act where the age of a victim is to be proved through bone age ossification test.
Ans: Yes. The margin of error of two years is further required to be applied.” 

Justice Prasad led Division Bench has recorded that the victim had made her statement under Section 164 Cr.P.C. The said statement was recorded on September 10, 2018. In her statement, she has stated that she and Isha were playing and thereafter she has stated that the accused had caught hold of her, opened her pant and he opened his own lungi and slammed her down on the chowki and touched her lower part, caught her and came over her, when Isha came then he did not open the door then she brought Raju Mama (PW-3), she claimed that he got the door opened and got her out. In course of trial, PW-2 has not stated that Isha had called Raju Mama and he got the door opened rather she said that when she was weeping and crying then one boy namely, Raju from the village got the door opened whereafter she ran away to her house weeping and crying. Isha was not examined in course of trial. In course of trial, PW-2 stated that Isha had also gone inside the house of the accused-appellant but she was sent to a shop to bring gutka. Isha was a material witness in this case but has been withheld by the prosecution. The I.O. categorically stated in his deposition that the witness Raju Kumar, Isha Kumari and Ranju Devi, none of them had made statement before him that the accused had committed rape with the victim.  

It also recorded in its judgement that in her cross-examination, Dr. Supriya Suman, PW-5 clearly stated that there was no mark of sexual violence on the private part of the victim, there was no tear or laceration in the component of the vagina. It was, thus, evident that so far as the medical examination of the victim was concerned, the doctor did not found any sign of recent sexual act, though the victim was habitual to sexual intercourse. It was also found that the appellant in this case was arrested immediately on the next day i.e. on September 10, 2018 but he was not taken for medical examination. The I.O. stated that during the investigation he had not seized the clothes worn by the victim at the time of occurrence because the informant side had not produced the clothes. 

Justice Prasad concluded: ''53. In the kind of the evidences on the record, this Court finds that the prosecution has not been able to prove that there was any penetrative sexual act by the appellant with the victim (X). We have also noticed that while in her examination-in-chief the victim has stated that the appellant lifted his lungi and committed wrong act with her, in her own cross-examination, the victim has stated in paragraph ‘34’ that the accused was wearing a towel. The defence has suggested all the prosecution witnesses that it is a case of false implication because of land dispute as the prosecution side was trying to usurp the land of the accused which is adjacent to his house and for this reason a false case has been concocted in connivance between PW-2 and PW-3. 54. On overall analysis of the evidences on the record, we are of the considered opinion that in this case neither the age of the victim girl has been properly assessed by the learned trial court nor the ocular and documentary evidences on the record have been duly appreciated. The testimony of the victim does not inspire confidence, PW-3 claims that when he pushed opened the door of the appellant, the victim told her that the appellant had committed rape on her, still his conduct in not informing this occurrence to the family of the victim and then not going with them to the police station even on the next day would compel this Court to take a view that he has been introduced in this case with an afterthought. The witnesses being untrustworthy, the delay of more than 24 hours in a case where PW-3 claims herself a witness of the circumstances at place of occurrence would further go against the prosecution. In these materials, it would not be safe to sustain the findings of the learned trial court.'' PW-2 is the victim and PW-3 is Raju Kumar. 

   

Date of commitment for the purpose of Section 250(1) BNSS in POCSO cases?

In Narottam Prusty vs. State of Odisha & Anr. (2025), Justice Aditya Kumar Mohapatra of Orissa High Court, Cuttack delivered a 33-apge long judgement dated September 22, 2025, wherein, it observed that after the Protection of Children from Sexual Offences (POCSO) Act, 2012 was enacted and with the introduction of the Bharatiya Nagarika Surakshya Sanhita (BNSS), 2023,the Special Courts trying cases under the POCSO Act should follow a procedure while framing charge against the accused.

 

It laid down the following procedure:  

(i) Since no commitment procedure has been prescribed in the POCSO Act for the cases triable by the Special Court, the date of appearance before the Special Court or the date on which accused was brought before such court for the first time after cognizance of the offence is taken under Section 33(1) of the POCSO Act, 2012 such date shall be treated as the date of commitment for the purpose of Section 250(1) of the BNSS.

(ii) From the date of appearance of the accused/ the date when the accused was brought before the Special Court for the first time;

(a) the accused shall forthwith be provided with the police papers as provided in Section 231 of BNSS, if not already provided.

(b) the accused may prefer an application for discharge within 60 days thereafter under Section 250(1) of the BNSS.

(iii) If the accused does not want to file an application for discharge, such intention shall be given in writing by theaccused in the shape of a memorandum.

(iv) On filing of the memorandum as per clause-(iii), the Special Court shall proceed further to frame charges against the accused.

(v) In the event the accused files an application for discharge as per clause-(ii)(b) herein above, such application shall be considered under Section 250(2) BNSS after providing a

reasonable opportunity of hearing to the accused and the prosecution and the same shall be disposed of forthwith i.e. not later than 60 days from the first date of hearing on charge.

(vi) Unless the accused is discharged under Section 250(2) of BNSS due to lack of sufficient ground to proceed against the accused, the Special Court shall proceed to frame charge against the accused within 60 days from the first date of hearing on charge under Section 251(1)(b) of the BNSS.

 

The petitioner had filed an application under section 528 B.N.S.S., to invoke the inherent power of the High Court to quash the impugned order dated February 14, 2025 passed by the ADJ-cum-Spl.Judge (POCSO), Jagatsinghpur in a case of 2025 which corresponded to Nuagaon P.S.case of 2025 thereby framing charge against the Petitioner under section 65(2) of B.N.S., 2023 read with Section 6 of POCSO Act. 

 

The petitioner was aggrieved by the procedure adopted by the Special Court under the POCSO Act in supplying police papers and framing charge on the very same day without providing an opportunity to the accused-Petitioner to file a discharge application. The Petitioner approached the High Court. Since the issue involved in the application was a pure question of applicability of the procedural law to the facts of the case, the same was taken up for hearing and adjudication of such issue in presence of State Counsel.

 

The counsel for the Petitioner contended that on the basis of the F.I.R. dated 14.02.2025 Nuagaon P.S. case was registered for commission of offence punishable under section 65(2) of B.N.S, 2023 read with Section 6 of POCSO Act. The Petitioner was shown as the sole accused in the sF.I.R. He contended that in connection with this case, the Petitioner was arrested and remanded to custody and to face trial in the case. He submitted that the impugned order dated April 21, 2025 passed by the ADJ-cum-Spl Judge (POCSO), Jagatsinghpur was unsustainable in law, inasmuch as the Police papers were supplied to the Petitioner on April 21, 2025 while accepting the vakalatnama of the conducting counsel for the Accused-Petitioner. Although the first part of the order dated April 21, 202 reveals that the vakalatnama of the conducting counsel was accepted, the accused was provided with Police Papers and remanded to custody till May 12, 2025, however, later on the very same day another order was passed. On perusal of the order passed later on April 21, 2025, it appeared that hearing of charge took place on the very same day. Accordingly, charge was framed against the Accused-Petitioner under section 65(2) of B.N.S., 2023 read with Section 6 of POCSO Act, and the contents of the charge were read over and explained to the accused to which he pleaded not guilty.

The Petitioner's counsel contended that on April 21, 2025 on production of Accused-Petitioner, he was served with Police Papers and he was remanded to jail custody. However, later on the very same day another order was passed indicating that hearing of charge took place and charge was framed, read over and explained to the accused. He submitted that the procedure prescribed in the B.N.S.S. was violated because the Petitioner was not granted any opportunity to file a discharge Petition as provided under Section 250 of BNSS. Therefore, the impugned order dated April 21, 2025 was passed in violation of the provisions prescribed under the B.N.S.S., 2023.

 

Justice Mohapatra observed: ''On a careful examination of the impugned order dated 21.04.2025, this Court observes that two orders have been passed on the very same day. The first part of the order indicates that appearance of the conducting counsel was accepted on production of the accused. Thereafter Police Papers were supplied to the accused. The accused was remanded to jail custody till 12.05.2025. Another order was passed on that day, which reveals that the case was taken up again for framing of charge. Accordingly, after hearing the Special P.P, Charge has been framed taking into consideration the final form submitted by the I.O. and the document annexed to the Final Form. The order dated 21.04.2025 which was passed later on the same day does not reveal that any opportunity of hearing was given to the accused or his conducting counsel to file a discharge petition. Finally, on the later part of the day charge has been framed under Section 65(2) of BNS read with Section 6 of POCSO Act, and the same was read over and explained to the accused." 

 

In the the application, the High Court was required to test the validity of the order dated April 21, 2025. It was required to assess as to whether the procedure followed by the Court below in the present case while framing charge is in conformity with the statutory provisions contained in Section 251 of B.N.S.S. which corresponds to 228 of the Cr.P.C. Section 251 of BNSS is identical to Section 228 of the Cr.P.C albeit with a slight modification in Sub-Section (1)(b) of Section 251 of the BNSS 2023 wherein a time limit of 60 days, from the date of first hearing on charge, has been provided to frame the charge in writing. For better appreciation the provision of Section 251 BNSS is quoted herein below;

“251. Framing of charge.—(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an

offence which— 

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief

Judicial Magistrate, or the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused within a period of sixty days from the date of first hearing on charge.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused present either physically or through audio video electronic means and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

 

From the reading of Section 251 of the BNSS, it can be seen that Sub-Section (1) of Section 251 provides that the Judge will proceed to frame the charge “after such consideration and hearing as aforesaid”. The hearing and consideration referred to in Sub-Section (1) of Section 251 clearly alludes to the preceding section, i.e. Section 250 of BNSS which is the pari materia provision corresponding to Section 227 of the Cr.P.C. The aforesaid Section 250 deals with “Discharge” and postulates that;

“250. Discharge.—(1) The accused may prefer an application for discharge within a period of sixty days from the date of commitment of the case under section 232.

(2) If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.”

 

Section 250 of BNSS, 2023 clearly states that the accused will be provided with an opportunity to file an application for discharge and upon such application being filed, the Court below shall consider the case records, documents submitted and hear the prosecution as well as the accused before determining as to whether there are sufficient grounds to proceed against the accused. In the event the learned Court below is of the view that there are no sufficient grounds to proceed against the accused, the accused shall be discharged. However, if after hearing both the accused and the prosecution, the learned Court below considers that there is enough material to draw the presumption that the accused might have committed the offence, the trial court will then proceed to frame the charge as per Section 251 BNSS.

Section 250, specifically in sub-section (1) also provides a time limit of 60 days from the date of commitment of the case under Section 232, within which the discharge application may be filed by the accused. No such time limit was fixed under the erstwhile Section 227 of the Cr.P.C and it is a newer introduction in the BNSS. However, this Court observes that there is a slight legislative gap in reckoning the 60-day period in cases where committal procedure is contemplated per se, specifically in respect of Special Courts constituted under various legislations, including the POCSO Act. 

 

This case involved offences under the POCSO Act. In prosecution under the POCSO Act, the Special Court, by virtue of Sub-section (1) of Section 33 thereof, is empowered to take cognizance of any offence under the Act upon receipt of a complaint of facts constituting the offence or upon a police report of such facts, without the accused ever being committed to it for trial. 

 

Section 33(1) of the POCSO Act is reproduced:

“33. Procedure and powers of Special Court.—(1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts…”

In such circumstances, the legislative scheme under BNSS does not delineate with precision the exact point from which the 60-day period under Section 250(1) BNSS is to be computed.

Section 226 of the Cr.P.C which corresponds to Section 249 of the BNSS provides for opening of the case for the prosecution. It lays down that when the accused appears or he is brought before the Court of Sessions in pursuance of a commitment of a case under Section 209 (which corresponds to Section 232 of the BNSS), the prosecutor shall open his case by describing the charge brought against the accused. Since, no commitment procedure is required for the cases triable by the Special Court under the POCSO Act, 2012, a reasonable interpretation would be the date of commitment shall be the date on which the accused appears or brought before the court for the first time after the cognizance of the offence taken by the Special Court as provided under Section 33(1) of the POCSO Act, 2012. In view of the aforesaid provision, Section 250 of the BNSS is to be read and interpreted in a manner that the starting day of limitation for filing of an application for discharge within a period of 60 days shall be counted from the date of first appearance of the accused before the Special Court after the cognizance of the offence is taken. Similarly, once the accused prefers a discharge application, the case shall be posted for hearing on charge immediately. Thereafter, in view of Section 251(1)(b), the Special Court shall frame the charge within 60 days from the date the case is posted for first hearing on charge. This should be a reasonable and fair interpretation of the statutes to avoid any conflict.

The provision of Section 227 of the Cr.P.C was introduced at the time of amendment of the Code of Criminal Procedure in the year 1973. Such provision of discharge under Section 227 was introduced newly after abolition of the commitment proceedings as was existing under the old Cr.P.C. Section 227 confers a special power on Judge to discharge an accused at the threshold if upon consideration of the records and documents he finds that there are no sufficient grounds for proceeding against the accused. 

The expression in Section 227 “hearing the submission of the accused” means the submission of the accused on the records ofthe case as filed by the prosecution and documents submitted therewith. 

 

Justice Mohapatra relied on the judgment by the Supreme Court in Ajay Kumar Parmal vs. State of Rajasthan reported in (2012) 12 SCC 406 and Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao reported in (2019) 9 SCC 512 has also laid down the principles to be followed by the concerned court while framing charge under Section 228 of the Cr.P.C In the judgment it has been laid down that the Court cannot act merely as a post office or a mouth piece of th prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court for consideration at the time of framing of charge, the probative value of the material on record cannot be gone into, however, while framing charge the Court must apply its judicial mind and the materials placed on record must satisfy that the commission of the offence by the accused was possible. The object of incorporating Sections like 227 and 228 in the Cr.P.C is to ensure that the court should be satisfied that the accusation made against the accused is not frivolous and that there is some material for

proceeding against him. Thus, it is very clear that the provisions contained in Section 227 and 228 of the Cr.P.C (which corresponds to Section 250 and 251 of the BNSS) are not empty formalities and that the court exercising such power is required to evaluate the entire material and documents made available on record with the object of finding out if the facts emerging therefrom and taken at their face value discloses the existence of all ingredients constituting the alleged offences.

 

In the case question, it was clear that the Court initially accepted the vakalatnama of the new counsel for the accused, issued notice to the informant and the victim to be present for the hearing of the accused‟s bail application on 01.05.2025, supplied the Police paper to the accused and the Special Public Prosecutor, and remanded the accused to judicial custody up until 12.05.2025. Subsequently, on the same date, i.e. 21.04.2025, another order was passed by the same Court wherein it was recorded that both the counsel for the prosecution and the defence were present and were both heard on the point of charge. The order also revealed that the Court below had taken into consideration the F.F, the witness statements along with other connected papers and has concluded that there are grounds to presume that the accused has committed the offences punishable under the sections stated hereinabove. Consequently, charge under Section 65(2) of BNS read with Section 6 of POCSO Act was framed against the accused, and the contents of the charge were read over and explained to the accused. The accused pleaded not guilty, and as such, the Court below fixed a date for hearing the prosecution witnesses on 12.05.2025. Finally, the accused was remanded to jail custody to be produced on the date of hearing of the witnesses on behalf of the prosecution.

 

The intention of the legislature in including the 60-day period under sub-section (1) to Section 250 was to provide ample time to the accused to present his properly constituted discharge application so as to preserve the right of the accused to a fair trial, as envisaged under Article 21 of the Constitution of India. 

Justice Mohapatra observed: '....'this Court is of the considerate view that the right of the accused to a fair trial, as enshrined under Article 21 of the Constitution of India, has been violated on account of the very fact that the learned defence counsel did not have the opportunity to go through the basic documents or the police papers, which were supplied to the accused on the date the defence counsel was appointed and the charge was framed.''

 

He added, ''it cannot be held that any meaningful hearing for the purpose of Sections 250 and 251 BNSS have been conducted before framing of charge against the accused. As such, this Court has no hesitation in setting aside the second part of the impugned order dated 21.04.2025 of the learned ADJ-cum-Special Judge (POCSO), Jagatsinghpur, under Annexure-5, passed in the later part of 21.04.2025. 

 

Justice Mohapatra's judgment reads:''Consequently, it is directed that the matter be considered de novo by the learned Court in seisin over the matter from the stage of discharge. The Petitioner is directed to approach the Court in Session over the matter by filing a discharge application within two weeks from the date of this judgment. In such eventuality, the learned Court in seisin over the matter shall consider such dischargeapplication of the Petitioner in accordance with law, within four weeks thereafter before framing the charge.''

 

Supreme Court to hear challenge against order of suspension of sentence, bail by Justice Rajeev Ranjan Prasad headed bench in September 2025

In ABC vs. The State of Bihar & Ors. (2025), Supreme Court's Division Bench of Justices B.V. Nagarathna and K.V. Viswanathan has notified September 12, 2025 as the date for hearing the challenge against the 7-page long order dated November 20, 2024 by Patna High Court's Division Bench of Justices Rajeev Ranjan Prasad and Ashok Kumar Pandey in Ricky Kumar @ Rikki Kumar vs. The State of Bihar & Anr. (2024). The respondent no. 2 before the High Court was the unnamed victim from Panchsil Nagar, Ward No.4, Barh, Patna. On May 13, 2025, the respondent No.2 had sought time to file counter affidavit in the Supreme Court. By way of last opportunity, one week’s time was granted to file counter affidavit. The respondent no, 2 is Ricky Kumar @ Rikki Kumar. Supreme Court order reads:"Not to be deleted from the notified date i.e. 12.09.2025."

Notably, the High Court's order records that by order dated September 19, 2024, notice was issued upon the respondent no.2 in the High Court and State was given an opportunity to file show-cause but neither any show-cause was filed on behalf of the State nor any prayer for adjournment was made and no one appeared on behalf of respondent no.2, the victim. The counsel of Ricky Kumar @ Rikki Kumar, the appellant had prayed for suspension of his sentence and release on bail during pendency of the appeal because he had been in incarceration for more than three years and his case was not likely to be heard in near future. The appellant was convicted by judgment dated April 27, 2024 and sentence order dated April 30, 2024 passed by Additional Sessions Judge-VI-cum-Special Judge (POCSO Act), Patna in Special (POCSO) case of 2021 for the offence under Section 376AB of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences (POCSO) Act. He was ordered to undergo rigorous imprisonment for 20 years with a fine of Rs.25,000/- for the offence under Section 6 of the POCSO Act.

Justice Prasad concluded:"....we are of the view that in this case, the learned trial court has determined the age of the victim on the basis of school living certificate of the second school of the victim girl which is not in terms of the scheme of the Juvenile Justice Act, moreover, the victim girl has herself stated about the circumstances under which she was being beaten by her mother and brother and she has also stated that she had left her house on her own and had gone to Bakhtiyarpur from where she had gone to Hyderabad, the allegation of commission of rape is being made after more than a month of leaving of her house, she had never made this complaint to anyone, to any authority either at Hyderabad or at any other place and the Medical report of the Doctor (PW-5) is not corroborating the allegation of sexual intercourse, in these circumstances, this Court directs suspension of sentence and release of the appellant on bail during pendency of the appeal".