Suresh Nayak vs State Of Odisha

S.K. Sahoo, J

This matter is taken up by video conferencing mode.

Heard learned counsel for the petitioner and learned counsel for the State.

This is an application under section 439 of Cr.P.C. in connection with T.R. Case No.413 of 2020 arising out of Laxmisagar P.S. Case No.287 of 2020

pending in the Court of learned 4th Addl. Sessions Judge, Bhubaneswar for offences punishable under section 376(2)(i) of the Indian Penal Code read

with section 6 of the POCSO Act.

As per the prosecution case, the occurrence in question took place on 23.10.2020 and the F.I.R. was lodged on 30.10.2020 and charge sheet has been

submitted in this case on 06.01.2021 under section 376(2)(i) of the Indian Penal Code read with section 6 of the POCSO Act. The available materials

on record indicate that the victim was aged about fifteen years at the time of occurrence and section 376(2)(i) of the Indian Penal Code has been

omitted by Act No.22 of 2018 with effect from 21.04.2018 and prior to its omission, clause (i) read as under:-

“(i) commits rape on a woman when she is under sixteen years of age; orâ€​.

By omitting such a clause, a specific sub-section i.e., sub-section (3) has been inserted in section 376 of the Indian Penal Code by Act No.22 of 2018

w.e.f., 21.04.2018 which reads as follows:-

“376(3) 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:

Provide 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 victimâ€​

Therefore, the submission of charge sheet under section 376(2)(i) of the Indian Penal Code on 06.01.2021 for an offence committed on 23.10.2020

when the said clause has been omitted since 21.04.2018 is per se illegal and reflects non-application of mind.

Let the Investigating Officer file an affidavit as to how by overlooking such omission of the provision, he has filed the charge sheet under section 376

(2)(i) of the Indian Penal Code. The affidavit shall be filed by 29th July 2021 giving copy thereof to the learned counsel for the petitioner.

List this matter in the week commencing from 2nd August 2021.

A copy of the order be communicated to the learned trial Court who shall submit a report as to under which offences, cognizance has been taken..