Madras High Court
Jahangir vs The Inspector Of Police on 3 August, 2026
Author: A.D.Jagadish Chandira
Bench: A. D. Jagadish Chandira
Crl.A(MD) No.499 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 03.08.2024
CORAM
THE HONOURABLE MR. JUSTICE A. D. JAGADISH CHANDIRA
and
THE HONOURABLE MS. JUSTICE R. POORNIMA
Crl.A(MD) No.499 of 2024
Jahangir ... Appellant
vs.
The Inspector of Police,
All Women Police Station,
Thilagarthidal
Madurai
(Crime No.22 of 2020) ... Respondent
Prayer:- Criminal Appeal filed under Section 374(2) of Cr.P.C., to set aside the
judgment of conviction and sentence dated 08.04.2024 passed by the Principal
Special Court for Exclusive trial of cases under POCSO Act, Madurai in Spl.S.C.No.
101 of 2020.
For Appellant : Mr.P.Pavel
For Respondent : Mr.G.Karuppasamy Pandian
Counsel for State of Tamil Nadu (Crl.Side)
JUDGMENT
A.D.JAGADISH CHANDIRA,J.
The instant criminal appeal is filed by the accused (hereinafter referred to as
“the appellant”) seeking to set aside the judgment of conviction and sentence dated
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08.04.2024 passed by the Principal Special Court for Exclusive trial of cases under
POCSO Act, Madurai (hereinafter referred to as “the Trial Court”) in Spl.S.C.No.
101 of 2020 (hereinafter referred to as “the impugned judgment”).
2. Vide the impugned judgment, the Trial Court convicted the appellant
and sentenced him as tabulated below:
Penal Provision Imprisonment Fine amount
Section 5(l) and 5(m) r/w. 6 of Life Imprisonment Rs. 25,000/- in default of
Protection of Children from for the remainder which to undergo two years
Sexual Offences Act, 2012 of the natural life simple imprisonment
Period of detention already undergone by the appellant was ordered to be set off
In so far as the award of victim compensation to the victim child (P.W.1) is
concerned, the Trial Court had taken into consideration the age of the victim child
(P.W.1) and the mental trauma suffered by her due to the commission of the offence
by the appellant and had thereby awarded a compensation of Rs. 6,00,000/- (Rupees
Six Lakhs Only) to the victim child (P.W.1) as per Section 33(8) of the POCSO Act,
2012 and G.O. (Ms.) No.33, dated 03.10.2020 issued by the Social Welfare and
Nutritious Meal Programme SW(5)(2) Department, and further directed the awarded
compensation amount to be disbursed from the “Tamil Nadu Child Victim
Compensation Fund under the Protection of Children from Sexual Offences Act,
2012“. Considering the age of the victim child, the awarded compensation was
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directed by the Trial Court to be kept in a fixed deposit in any one of the nationalised
bank as preferred by the defacto complainant till the victim child attains majority.
Till then, the defacto complainant on behalf of the victim child was permitted by the
Trial Court to withdraw the interest accrued thereon every once in three months and
utilise the same for the welfare of the victim child.
3. The case of the prosecution, in a nutshell, is as follows;
3.1. The case of the prosecution is that the victim child (P.W.1) was aged
about 10 years and was studying 5th Standard. The appellant was living upstairs with
his wife, while his daughter and her family have been living in the ground floor of
the same house. The grand daughter of the appellant used to play with the victim
child (P.W.1) and hence the appellant was a known person to the victim child (P.W.
1). Further, the appellant used to be alone at home after his wife would leave for her
work.
3.2. In the above backdrop, on 08.06.2020 at about 10.00 a.m., while the
mother of the victim child (hereinafter referred to “the defacto complainant (P.W.2)”)
sent the victim child (P.W.1) to go to the Ganapathy Provisional Store to buy
‘uru dal’, the appellant had noticed the victim child (P.W.1) en route to the said store
and thereby enticed the victim child (P.W.1) under the premise that his grand
daughter had invited her to come play with her and took her upstairs to his portion of
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the house. Where, the appellant with a sexual intent hugged, kissed, caught a hold of
the victim child’s (P.W.1) breasts and laid down the victim child (P.W.1) whilst
removing her clothes and thereafter committed penetrative sexual assault on her.
Unable to bear the pain the victim child (P.W.1) screamed and to avoid being heard
the appellant her let her go.
3.3. Again on 13.06.2020 at about 11.00 a.m., when his wife and daughter
were not in the house and when the victim child (P.W.1) was playing with the other
children who lived nearby, the appellant enticed her to his house, locked the door and
thereby once again committed penetrative sexual assault on her. Since, the victim
child (P.W.1) was experiencing some stomach pain she informed the defacto
complainant (P.W.2) and thereby the defacto complainant (P.W.2) preferred a
complaint (Ex.P.2) with the AWPS, Thilgar Thidal.
3.4. Based on the defacto complainant’s complaint (Ex.P.2) an FIR (Ex.P13)
was registered in Crime No.22 of 2020 for the offences under Sections 5(l), 5(m) r/w.
6 of the POCSO Act by the Special Sub-Inspector of Police (P.W.13). Thereafter, the
Special Sub-Inspector of Police (P.W.13) forwarded the complaint (Ex.P.2) and the
FIR (Ex.P13) to her higher officials as well as to the Trial Court.
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3.5. The Inspector of Police (P.W.15) immediately took up the case for
investigation went to the place of occurrence and inspected the same in the presence
of the independent witnesses Arasammal (P.W6) and Muniyammal(PW.7) and
prepared an observation mahazar (Ex.P4) and rough sketch (Ex.P16). She further
examined the defacto complainant (P.W.2), the father of the victim child (P.W.3)
victim child (P.W.1), the maternal uncle (P.W.4) of the victim child (P.W.1) and the
maternal aunt (P.W.5) of the victim child (P.W.1) and recorded their respective
statements. Based on the statements received, she arrested the appellant at his
residence and recorded his voluntary confession statement in the presence of the
above mentioned independent witnesses Arasammal (P.W6) and Muniyammal
(PW.7).
3.6. Following which, the Inspector of Police (P.W.15) sent the victim child
(P.W.1) to the Madurai Rajaji Government Hospital for medical examination through
the Women Head Constable (P.W.8) and Women Grade 1 Police (P.W.9). Where Dr.
Krishnaveni (P.W.11) examined the victim child (P.W.1) and issued a Medical
Certificate (Ex.P.10) opining that although, the victim child’s (P.W.1) hymen was
intact and no injuries were noted, the hymen may or may not rupture depending on
the actions of the perpetrator.
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3.7. On 17.06.2020, the appellant was produced for medical examination
before Dr. Arunbalan (P.W.12) who a Medical Certificate (Ex.P.12) opining that it
could not be conclusively said that the appellant was either impotent or was
incapable of having sexual intercourse.
3.8. On 29.06.2020, the Judicial Magistrate, Additional Mahila Court, Madurai
recorded the Statement (Ex.P.1) of the victim child (P.W.1) under Section 164 of
Cr,P.C. Thereafter, on 23.07.2021, the Inspector of Police (P.W.15) sent a letter
requesting the school certificate of the victim child (P.W.1) to the Headmistress (P.W.
14) of the victim child’s school and obtained a School Certificate (Ex.P15) reflecting
the age of the victim child (P.W.1).
3.9. Hence, on the basis of the investigation, the Inspector of Police (P.W.15),
by way of an alteration report (Ex.P19), altered the offences from Sections 5(l), 5(m)
r/w. 6 of the POCSO Act to Section 363 of IPC, Sections 342, 376(A) of IPC and
Sections 9(l), 9(m) r/w Section 10 of POCSO Act. Thereafter, the Inspector of Police
(P.W.15), continued the investigation and examined the remaining witnesses and
recorded their respective statements.
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3.10. Lastly, on 26.08.2015, the final report was filed by the Inspector of
Police (PW21), against the appellant for the offences under Section 363 of IPC,
Sections 342, 376(A) of IPC and Sections 9(l), 9(m) r/w Section 10 of POCSO Act.
4. On appearance of the appellant, the provisions of Section 207 Cr.P.C.
were complied with and thereupon, the case was committed to the Court of Session
in S.C. No. 101 of 2020 and made over to the Trial Court. The Trial Court framed
charges against the appellant for having committed the offences under Sections 5(l),
5(m) r/w. 6 of the POCSO Act. When the charges were read over and explained to
the appellant, he pleaded not guilty.
5. In order to prove the prosecution case, the prosecution examined 15
witnesses as P.W.1 to P.W.15 and marked Ex.P1 to Ex.P19. After examination of the
prosecution witnesses, when the appellant was questioned under Section 313 of
Cr.P.C. on the incriminating circumstances appearing against him, he blatantly
denied the same as false without offering any explanation whatsoever and although
he filed a list of witnesses he did not examine any defence witnesses or mark any
documents on his side.
6. The Trial Court, after hearing the arguments on both sides, found the
appellant guilty and convicted and sentenced him as tabulated at paragraph 2, supra,
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vide the impugned judgment and challenging his conviction and sentence, the instant
criminal appeal has been filed by the accused i.e. appellant.
7. The learned counsel for the appellant submitted as follows:
7.1. The appellant was denied the opportunity to a fair trial and thereby his
fundamental rights under Article 21 of the Constitution of India stood infringed.
7.2. The appellant was not granted a fair opportunity of cross examining the
material witnesses namely (1) the victim child (P.W.1), (2) the defacto complainant
(P.W.2), (3) the father (P.W.3) of the victim child (P.W.1), (4) the maternal uncle
(P.W.4) of the victim child (P.W.1), (5) Dr. Krishnaveni (P.W.11), (6) Dr. Arun Balan
(P.W.12) and (7) the Special Sub-Inspector of Police (P.W.13) as the counsel
appointed to represent the appellant before the Trial Court was not present on the
date of examination of the aforesaid material witnesses. This would go on to show
that although, a counsel was appointed to represent the appellant, the said counsel
has not put in a sincere endeavor to effectively represent the appellant and thereby
has overlooked the necessity to represent during the examination of the aforesaid
material witnesses. Therefore, the illusory presence of the said counsel has infringed
the appellant’s right to legal aid under under Article 21 & 39A of the Constitution of
India.
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7.3. When the appellant was not effectively represented before the Trial Court,
it was the bounden duty of the public prosecutor to point out the same to the Trial
Court and further it was the bounden duty of the Trial Court to take into
consideration the same and to ensure that the appellant receives an effective legal
representation while being tried for the charged offences. Failure of the Trial Court
to ensure effective legal representation during the examination of the aforesaid
material witnesses has occasioned in injustice to the appellant thereby leading to him
being convicted and sentenced as as tabulated at paragraph 2, supra, vide.
7.4. Hence, the impugned judgment, which is a resultant of the lack of legal
representation during the trial, is liable to be set aside as violative of the
fundamental right to a fair trial under Article 21 of the Constitution of India.
8. The learned counsel appearing for the respondent fairly submitted that
though the appellant was represented by a counsel, he has not cross examined the
material witnesses owing to him being out of station on the days of the examination
of the aforesaid material witnesses. However, in order to remedy the same, the said
counsel had subsequently filed Crl.M.P. No. 503 of 2022 seeking to recall the
aforesaid material witnesses, which in turn came to be dismissed by the trial Court
vide its order dated 25.05.2022. Pursuant to the dismissal of the same, Crl. O.P.
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(MD) No. 15671 of 2022 was filed before this Court challenging the said order dated
25.05.2022 and this Court had also dismissed the same vide its order dated
06.09.2022. Therefore, the learned counsel would fairly concede that when the
appellant was not effectively represented by his counsel during the examination of
the aforesaid material witnesses, it was the duty of the public prosecutor to have
pointed out to the Trial Court of the requirement of providing free legal aid and that
the failure to do so has occasioned in injustice to the appellant.
9. We have given our careful and anxious consideration to the rival
contentions put forth by the counsel on either side and have thoroughly scanned
through the entire evidence available on record and have also perused the impugned
judgment of conviction and sentence.
10. On doing so, we find that although, the appellant had engaged a counsel
on record, the said counsel did not represent the appellant during the examination of
the aforesaid material witnesses. In this regard, we find Ramanand v. State of U.P.
[(2023) 16 SCC 510] to be useful as the Apex Court therein while discussing what it
meant to be effectively represented by a defense counsel had held that the presence
of counsel on record means an effective, genuine and faithful presence and not a
mere farcical, sham or virtual presence that is illusory, if not fraudulent. Hence, the
mere factum of engagement of counsel by the appellant could not tantamount
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effective representation. Further, in the present case, it can be seen that during the
trial the presence of the said counsel was nothing but a farce.
11. Having found thus, we are tasked to ascertain the effect it would have on
conviction and sentence of the appellant. In this regard, we find it useful to take note
of Mohd. Hussain v. State (Govt. of NCT of Delhi) [(2012) 2 SCC 584] wherein
the Apex Court had stressed upon the importance of the presence of a counsel during
the examination of the prosecution witnesses to ensure a fair trial to the accused. The
Apex Court had therein also highlighted that it was the duty of the court to ensure a
fair trial to the accused and having highlighted thus remanded the case to the trial
court therein for commencement of a fresh trial after ensuring that the accused was
provided able and effective assistance of a counsel. The relevant extract of Mohd.
Hussain, supra, is as follows;
“22. In Ram Awadh v. State of U.P. [1999 Cri LJ 4083 (All)] the
Allahabad High Court held: (Cri LJ p. 4086, para 14)
“14. … A duty is cast upon the judges before
whom such indigent accused are facing trial for
serious offence and who are not able to engage a
counsel, to appoint competent persons for their
defence. It is needless to emphasis that a Judge is
not a prosecutor and his duty is to discern the truth
so that he is able to arrive at a correct conclusion.
A defence lawyer plays an important role in
bringing out the truth before the Court by cross-
examining the witnesses and placing relevant
materials or evidence. The absence of proper cross-
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examination may at times result in miscarriage of
justice and the Court has to guard against such an
eventuality.”
23. The prompt disposition of criminal cases is to be commended
and encouraged. But in reaching that result, the accused charged with a
serious offence must not be stripped of his valuable right of a fair and
impartial trial. To do that, would be negation of concept of due process
of law, regardless of the merits of the appeal. The Criminal Procedure
Code provides that in all criminal prosecutions, the accused has a right
to have the assistance of a counsel and the Criminal Procedure Code
also requires the court in all criminal cases, where the accused is unable
to engage counsel, to appoint a counsel for him at the expenses of the
State. Howsoever guilty the appellant upon the inquiry might have been,
he is until convicted, presumed to be innocent. It was the duty of the
court, having these cases in charge, to see that he is denied no necessary
incident of a fair trial.
… 28. In view of the above discussion, I cannot sustain the
judgments impugned and they must be reversed and the matter is to be
remanded to the trial court with a specific direction that the trial court
would assist the accused by employing a State counsel before the
commencement of the trial till its conclusion, if the accused is unable to
employ a counsel of his own choice. Since I am remanding the matter for
fresh disposal, I clarify that I have not expressed any opinion regarding
the merits of the case.”
12. A coordinate bench of this Court has also taken note of the Mohd.
Hussain, supra, in M. Kannan v. State [2017 SCC OnLine Mad 10874] and has on
consideration of the ratio therein has reiterated that effective legal assistance is an
essential ingredient to fair trial and that when there is denial of a fair trial to the
accused, the conviction and sentence thereof cannot be allowed to be sustained. Even
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in M. Kannan, supra, the case was remanded to the trial court so as to afford an
opportunity to the accused to cross examine the prosecution witnesses. The relevant
extract of M. Kannan, supra, is as follows;
33. In Mohd. Hussain @ Julfikar Ali v. The State (Govt. of NCT)
Delhi cited supra, on facts, similar to the case on hand, the Hon’ble
Supreme Court found one Mr. Riyaj Ahmed, an Advocate, who was
engaged by the accused appeared on behalf of the accused represented
him and cross examined some of the witnesses and omitted to cross
examine the others. Later on Mr. Riyaj Ahmed did not appear in the
Court on some days. At that time, the Court appointed one Mrs. Sadhna
Bhatia as Amicus Curiae to defend the accused at State expenses.
Ultimately the accused was convicted. The Court thus found that there
was no proper legal assistance to the accused. The Hon’ble Supreme
Court held that for the failure of the Advocate to appear and extend
legal assistance by cross examining the witness, the accused cannot be
blamed. The Supreme Court held that though right to speedy trial is a
fundamental right and that rigid time limit is not countenanced, but in
the facts of the case, since there was denial of fair trial, violating Article
21 of the Constitution of India, the conviction and sentence should be set
aside.
34. In the instant case, the facts are almost similar. For failure
and gross dereliction of duty of the learned counsel engaged by the
accused, the accused cannot be penalized. In our considered view, the
trial without legal assistance cannot be regarded as reasonable, fair and
just. As held by the Hon’ble Supreme Court, it is an essential ingredient
of reasonable, fair and just procedure to an accused who is to seek his
liberation through the Court process that he should have effective legal
assistance. Therefore, we hold that in the instant case, there is denial of
fair trial to the appellant and hence, the conviction and sentence cannot
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be allowed to sustain and the matter needs to be remanded back to the
trial Court so as to afford sufficient opportunity to the accused to cross
examine the witness and to examine witnesses in defence.
13. On perusal of M. Kannan, supra, we are also of the same view that the
ratio in Mohd. Hussain, supra, would necessarily come to the aid of an accused who
has been denied a fair opportunity of cross examination owing to the illusory
presence of his counsel. Even in the present case, although the appellant had engaged
a counsel, it is unfortunate that the appellant has not been effectively represented by
the said counsel during the examination of the aforesaid material witnesses thereby
ultimately resulting in the conviction and sentence of the appellant. Although, the
said counsel has attempted and failed to resolve the situation by filing Crl. M.P. No.
503 of 2022 and Crl. O.P. (MD) No. 15671 of 2022 we find there being an imminent
need for the cross examination of the material witnesses before convicting the
appellant. As stated above the appellant has a fundamental right to a fair trial and
considering the peculiar nature of the present case, wherein the conviction has
stemmed from the infringement of such fundamental right, the dismissal of Crl. M.P.
No. 503 of 2022 and Crl. O.P. (MD) No. 15671 of 2022 can not be the sole basis for
sustaining the conviction and sentence of the appellant.
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14. Notwithstanding everything that has been discussed above, we are
conscious that the trial in the present case is for the offenses under the POCSO Act,
2012 and that Section 35 to 37 of the POCSO Act, 2012 serves as a safeguard to
protect the interests of the victim child (P.W.1). Therefore, as a coordinate bench in
M. Kannan, supra has struck a balance between the interests of the victim child and
the fundamental right of the accused, we are also inclined to strike a balance in the
present case.
15. In light of the above discussion, we find it incumbent to resort to Suhas
Chakma v. Union of India, [(2024) 16 SCC 1] and Ashok v. State of Uttar
Pradesh [(2025) 2 SCC 381] wherein the Apex Court has laid emphasis on the need
to appoint a legal aid counsel at all material stages of the trial to ensure a fair trial to
the accused. The relevant extract of Ashok, supra, is as follows;
38.1. It is the duty of the Court to ensure that proper legal aid is
provided to an accused;
38.2. When an accused is not represented by an advocate, it is the
duty of every Public Prosecutor to point out to the Court the requirement
of providing him free legal aid. The reason is that it is the duty of the
Public Prosecutor to ensure that the trial is conducted fairly and
lawfully;
38.3. Even if the Court is inclined to frame charges or record
examination-in-chief of the prosecution witnesses in a case where the
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accused has not engaged any advocate, it is incumbent upon the Public
Prosecutor to request the Court not to proceed without offering legal aid
to the accused;
38.4. It is the duty of the Public Prosecutor to assist the Trial
Court in recording the statement of the accused under Section 313 of the
CrPC. If the Court omits to put any material circumstance brought on
record against the accused, the Public Prosecutor must bring it to the
notice of the Court while the examination of the accused is being
recorded. He must assist the Court in framing the questions to be put to
the accused. As it is the duty of the Public Prosecutor to ensure that those
who are guilty of the commission of offence must be punished, it is also
his duty to ensure that there are no infirmities in the conduct of the trial
which will cause prejudice to the accused;
38.5. An accused who is not represented by an advocate is
entitled to free legal aid at all material stages starting from remand.
Every accused has the right to get legal aid, even to file bail petitions;
38.6. At all material stages, including the stage of framing the
charge, recording the evidence, etc., it is the duty of the Court to make
the accused aware of his right to get free legal aid. If the accused
expresses that he needs legal aid, the Trial Court must ensure that a legal
aid advocate is appointed to represent the accused;
…38.11. The right of the accused to defend himself in a criminal
trial is guaranteed by Article 21 of the Constitution of India. He is
entitled to a fair trial. But if effective legal aid is not made available to
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an accused who is unable to engage an advocate, it will amount to
infringement of his fundamental rights guaranteed by Article 21;
16. Therefore, as stated in Ashok, supra, the Trial Court ought to have ensured
that proper legal aid was provided to the appellant when the appellant’s counsel
failed to effectively represent the appellant during the examination of the aforesaid
material witnesses. The Trial Court has erred in simply proceeding with the
examination of the aforesaid material witnesses without ensuring a fair opportunity
of cross examination to the appellant. Hence, we reiterate that the appellant has been
denied a fair trial whereby his fundamental right under Article 21 of the Constitution
of India has been infringed. The infringement of the appellant’s right is sufficient
prejudice to vitiate the trial thereby warranting the conviction and sentence thereof to
be set aside. Therefore, in our considered view, in order to provide a fair opportunity
of cross examination to the appellant, the matter ought to be remanded to the Trial
Court to consider the matter afresh.
17. In the result, the Criminal appeal stands partly allowed. The impugned
judgment of conviction and sentence dated 08.04.2024 passed by the Principal
Special Court for Exclusive trial of cases under POCSO Act, Madurai in Spl. S.C.
No. 101 of 2020 is set aside and the case in Spl. S.C. No. 101 of 2020 is remanded to
the Principal Special Court for Exclusive trial of cases under POCSO Act, Madurai
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to consider and decide the case afresh, after providing an opportunity to the appellant
for cross examination of prosecution witnesses. The Principal Special Court for
Exclusive trial of cases under POCSO Act, Madurai shall proceed with the trial in
Spl. S.C. No. 101 of 2020 by retaining the available chief examination of the
prosecution witnesses and by providing an opportunity to the appellant to cross
examine the prosecution witnesses who were not cross examined earlier. If the
appellant is unable to appoint a counsel of his choice, the Principal Special Court for
Exclusive trial of cases under POCSO Act, Madurai shall appoint the Chief Legal
Aid Defence Counsel, who shall effectively represent the appellant. If any
incriminating circumstances appear in the evidence as against the appellant during
the cross examination, the procedure as per Section 313 of CrPC is to be followed.
Since, the appellant is still in custody, he shall be produced before the Principal
Special Court for Exclusive trial of cases under POCSO Act, Madurai, for further
remand and the trial shall be concluded as expeditiously as possible preferably
within a period of three months from the date of receipt of a copy of this Judgment.
It is made clear that the trial Court shall ensure that the witnesses recalled shall be
cross examined on the same day of their presence.
[A.D.J.C.,J.] [R.P.,J]
03.08.2026
Index : Yes/No
aav
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To
1.The Principal Special Court for
Exclusive trial of cases
under POCSO Act, Madurai
2.The Inspector of Police
All Women Police Station,
Thilagarthidal
Madurai
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court, Madurai
4.The Section Officer
Criminal Section (Records)
Madurai Bench of Madras High Court
Madurai.
5.The District Legal Services Authority,
Madurai
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A.D.JAGADISH CHANDIRA, J.
and
R.POORNIMA, J.
aav
Crl.A(MD) No.499 of 2024
03.08.2026
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