Sunder Kisan vs State Of Odisha

M.S. Raman, J

This matter is taken up through hybrid mode.

Challenging the order dated 10.09.2020 passed by the learned Additional Sessions Judge-cum-Special Judge (under POCSO Act), Sambalpur in Special G.R. Case No.419 of 2020, thereby allowing the prayer of the Investigating Officer to omit Section 6 of the Protection of Children from Sexual Offices Act, 2012 (for short the “POCSO Act”) and return the F.I.R., the present petitioner, who is the father of the victim, has approached this Court by filing the present revision petition under Section 401 read with Section 397 of the Code of Criminal Procedure, 1973.

Mr. Pramod Ranjan Behera, learned counsel appearing for the petitioner submitted that the learned trial Court should have based its finding on the basis of birth certificate of the victim under Annexure-2 issued by the Registrar (Birth & Death)-cum-Medical Officer, C.H.C., Garposh, District-Sambalpur as the date of birth of the victim is recorded in the said birth certificate as “10.03.2003”. Therefore, on the date of alleged occurrence, the victim is stated to be around 16 years, 11 months and 23 days. He, therefore, submitted that such perverse finding of fact is required to be interfered by this Court as the entries made in the birth certificate of the victim have probative value and prevail over the entry in the School Admission Register.

Mr. Iswar Mohanty, learned Additional Standing counsel appearing for the opposite party-State while opposing the aforesaid contention of the learned counsel for the petitioner, submitted that the Investigating Officer has correctly submitted the report before the learned trial Court saying that the victim is a major on the basis of the School Admission Register, which was seized during the course of the investigation of Mahulpali P.S. Case No.145 of 2020, corresponding to 1.C.C. No.1 of 2020 and the learned Additional Sessions Judge-cum-Special Judge (under POCSO Act), Sambalpur has rightly passed the impugned order, which warrants no interference of this Court. He further submitted that at the relevant point of time, when the investigation was in progress and even on the date of passing of the impugned order, i.e., 10.09.2020, the said birth certificate of the victim under Annexure-2 was not in existence. He further submitted that since the petitioner has sought to rely on the said birth certificate under Annexure-2 by introducing for the first time before this Court by way of filing the present revision petition, the same cannot be entertained at this stage.

Perusal of the birth certificate annexed to the revision petition as Annexure-2 shows that the date of issue of the said certificate is shown to be “24.09.2020” by the Registrar (Birth & Death)-cum-Medical Officer, C.H.C., Garposh, District-Sambalpur. Apparently, the said birth certificate has been issued after the impugned order is passed by the learned Additional Sessions Judge-cum-Special Judge (under POCSO Act), Sambalpur in Special G.R. Case No.419 of 2020.

At this stage, Mr. P.R. Behera, learned counsel appearing for the petitioner seeks to withdraw this revision petition with liberty to raise the aforesaid contention before the trial Court in accordance with law at the appropriate stage, to which Mr. Iswar Mohanty, learned Additional Standing counsel appearing for the State has no objection.

In view of the above submission, this revision petition stands disposed of as withdrawn with the liberty, as prayed for.

It is made clear this Court has expressed no opinion on the aforesaid contention of the learned counsel for the petitioner. It is also made clear that if the petitioner approaches the trial Court by filing the appropriate petition, the learned trial Court shall consider the same on its own merit without being influenced by any of the observations made by this Court.

A copy of this order be communicated to the trial Court forthwith.

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