Orissa High Court
Mohan Kumar Durit vs State Of Odisha And Another ….. … on 9 March, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.3678 of 2025
Mohan Kumar Durit ..... Petitioner
Represented by Adv. -
Mr. Rajesh Kumar Mahapatra
-versus-
State of Odisha and another ..... Opposite Parties
Represented by Adv. -
Mr. S.K. Parhi, ASC
Mr. Biswajit Sahoo, Advocate
for the Informant
CRLMC No.682 of 2025
Mohan Kumar Durit ..... Petitioner
Represented by Adv. -
Ms. Sudhashree Pasayat
-versus-
State of Odisha and others ..... Opposite Parties
Represented by Adv. -
Mr. S.K. Parhi, ASC
Mr. Biswajit Sahoo, Advocate
for the Opposite Party No.2
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
JUDGMENT
09.03.2026
Page 1 of 11.
Aditya Kumar Mohapatra, J.
1. These matters are taken up through Hybrid Arrangement
(Virtual /Physical Mode).
2. Heard the learned counsel for the Petitioner as well as
learned counsel for the Informant-Opposite Party No.2 and
learned counsel for the State in both the cases. Perused the
applications which were taken up for hearing today.
3. BLAPL No.3678 of 2025 has been filed at the instance of
the Petitioner for his release on bail under Section 439 of the
Cr.P.C. Similarly, the Petitioner has also approached this Court
by filing an application under Section 438 of the B.N.S.S.,
2023 challenging the order dated 03.02.2025 passed by the
learned ADJ-cum-Special Court under POCSO Act, Bargarh in
C.T. Case No.43 of 2024 whereby the learned ADJ-cum-
Special Court under POCSO Act, Bargarh was pleased to reject
the application filed by the Petitioner dated 06.01.2025 under
Section 34 of the POCSO Act on the question of jurisdiction.
4. Learned counsel for the Petitioner, at the outset,
contended that since both the applications involve an identical
issue, they are taken up together for hearing. Learned counsel
for the Opposite Party No.2-Informant has no objection to the
same. Accordingly, the CRLMC application as well as the bail
application under Section 439 of Cr.P.C. are taken up together
Page 2 of 11.
and disposed of by the following order.
5. The case of the Petitioner, in brief, is that the Opposite
Party No.2-Informant on 26.09.2024 lodged a written report
before the Attabira Police Station, inter alia, alleging that the
present Petitioner has been keeping physical relationship with
her by giving her false assurance to marry her. On 05.09.2024,
when she asked the Petitioner to marry her, the Petitioner
abused her in filthy language, assaulted the Opposite Party
No.2-Informant and threatened to kill her. It has also been
alleged that as a result of such sexual and physical relationship,
the Opposite Party No.2 had to undergo three illegal abortions.
On the basis of the aforesaid allegation, the IIC of Attabira
Police Station registered an F.I.R. against the Petitioner for
commission of offences under Sections
376(2)(n)/294/313/323/506/34 of I.P.C. read with Section 6 of
the Protection of Children From Sexual Offence Act, 2012.
6. The grievance of the Petitioner in the present applications
is that although the Petitioner was aged about 17 years and the
Victim was 16 years and both were minor at the time of the
occurrence, however such fact has not been taken into
consideration while registering the case against the present
Petitioner. He further submitted that in view of the provisions
contained in the Juvenile Justice (Care and Protection of
Children) Act, 2015 (Hereinafter referred to as “the Juvenile
Page 3 of 11.
Justice Act, 2015″), particularly Section-6 thereof, when a
person, who has allegedly committed an offence, was below the
age of eighteen years and in the meantime he has completed
eighteen years of age and subsequently apprehended for
commission of such offence when he was below the age of
eighteen years, then such person shall, subject to the provisions
of the section, be treated as a child during the process of
inquiry. He further submitted that in view of Section 6(2) of the
Juvenile Justice Act, 2015 the accused, who was a minor at the
time of the commission of an offence, if not released on bail by
the Board, shall be placed in a “place of safety” during the
process of inquiry. In view of the aforesaid settled provision in
the Juvenile Justice Act, 2015, learned counsel for the
Petitioner alleged that such provisions have not been followed
at all in the case of the Petitioner. Thus, it is alleged that not
only the detention of the Petitioner in custody is illegal, but
also the impugned rejection order dated 03.02.2025 passed by
the learned ADJ-cum-Special Court under POCSO Act,
Bargarh in C.T. Case No.43 of 2024 is unsustainable in law.
7. In course of his argument, learned counsel for the
Petitioner also referred to the provision contained in Section 34
of the Protection of Children from Sexual Offences Act, 2012
(Hereinafter referred to as “the POCSO Act, 2012“. Referring
to the aforesaid provision, learned counsel for the Petitioner
submitted that when it is found that the offence is committed by
Page 4 of 11.
a minor/child, such child shall be dealt with under the
provisions of the Juvenile Justice Act, 2015. Similarly, Section
34(2) of the POCSO Act, 2012 provides that whenever a
question arises with regard to the age of the child and whether
he is a minor or not, such question shall be determined by the
Special Court after satisfying itself about the age of such person
and that it shall record in writing its reasons for such
determination. At this juncture, learned counsel for the
Petitioner further alleged that the provision contained in
Section 34 of Juvenile Justice Act, 2015 has not been followed
in this case. He further contended that had the provision
contained under Section 34(2) of the POCSO Act, 2012 been
followed, then the case would have been tried by a different
court than the court in seisin over the matter. As such, it was
alleged that the learned trial court in the present case has
illegally assumed jurisdiction. As a result of such illegal
assumption of jurisdiction, the impugned order passed by the
learned trial court is a nullity in the eyes of law.
8. Learned counsel appearing for the Opposite Party No.2-
Informant, at this juncture, contended that the factual
submission made by the learned counsel for the Petitioner is
incorrect. He further submitted that the victim was minor at the
time of commission of offence. However, the Petitioner was a
major. It was also alleged by the learned counsel appearing for
the Opposite Party No.2 that the Petitioner has misled the court
Page 5 of 11.
with regard to the age of the present Petitioner. In such view of
the matter, learned counsel for the Opposite Party No.2
contended that the learned trial court has not committed any
illegality and proceeded with the trial under the provisions of
the POCSO Act, 2012. He also raised specific objection with
regard to release of the Petitioner on bail citing the gravity and
heinousness of the offence alleged against the present
Petitioner.
9. Learned counsel for the State, on the other hand,
contended that although it is alleged by learned counsel for the
Petitioner that the Petitioner was a minor at the time of
commission of the offence, however there is nothing on record
to conclude as such. He further fairly contended that the
provision contained in Section 34 of the POSCO Act, 2012 has
not been adverted to and that the age of the Petitioner has not
been determined before proceeding of the trial. However, he
further submitted that taking into consideration the heinousness
and gravity of the crime committed by the Petitioner, the
learned trial court has not committed any illegality in
proceeding with the trial, particularly keeping in view the fact
that the trial is required to be concluded in a time bound
manner as prescribed under the POCSO Act, 2012. On such
ground, learned counsel for the State contended that both the
bail application as well as the application under Section 438 of
B.N.S.S., 2023 challenging the order dated 03.02.2025 are
Page 6 of 11.
unsustainable in law and the impugned order does not call for
any interference by this Court at this stage.
10. Heard the learned counsels appearing for the respective
parties. This Court carefully examined the provisions contained
under Section-6 of the Juvenile Justice Act, 2015 as well as the
Section-34 of the POCSO Act, 2012.
11 It has been specifically alleged by the learned counsel for
the Petitioner that the Petitioner was aged about 17 years when
the offence was first allegedly committed. Thus, there is some
substance in the argument advanced by the learned counsel for
the Petitioner that the Petitioner was minor at the relevant point
of time. Moreover, on a careful reading of Section-34 of the
POCSO Act, 2012, it appears that sub-section (2) thereof
confers a power on the Special Courts to determine the age of
the accused in the event any such question arises before the
court. Since the Petitioner has raised a question with regard to
the age of the Petitioner, the learned Special Court under
Section 34(2) of the POCSO Act, 2012 is duty bound to
determine the age of the accused first before proceeding with
the trial.
12. On a careful scrutiny of the record, it appears that no such
procedure, as has been prescribed under the Section-34(2) of
the POCSO Act, 2012 has been followed in this case.
Page 7 of 11.
13. On a perusal of the impugned order dated 03.02.2025
which has been assailed by the Petitioner by filing CRLMC
No.682 of 2025, this Court further observes that the learned
trial court has taken note of the contention of the accused-
Petitioner with regard to the age of the accused-Petitioner at the
time of lodging of the F.I.R. While recording such contention
of the accused-Petitioner, the learned trial court has also taken
note of the age of the accused and victim, as has been reflected
in the School Admission Register i.e. 26 and 27 years old
respectively, at the time of lodging of the F.I.R. The victim in
the F.I.R. alleged that the occurrence had taken place ten years
prior to the lodging of the F.I.R. and specifically alleged that
the accused was having a sexual and physical relationship with
her on the false pretext of marriage. Thus, the Petitioner has
made an attempt to establish the fact that he was minor at the
time when the occurrence first took place and, accordingly, an
application was moved under Section 438 of B.N.S.S., 2025 for
determination of his age. Further, taking note of the statement
of the victim recorded under Section 161 of Cr.P.C., the learned
trial court has gathered that the accused had attained majority at
the time the occurrence took place. Accordingly, it was
concluded that Section- 34 of the POCSO Act, 2012 is not
applicable to the case of the accused Petitioner.
14. The learned trial court on a careful consideration of the
stand taken by the accused-Petitioner as well as the victim has
Page 8 of 11.
observed that the offence continued over the years and as per
the F.I.R., offence occurred from 26.09.2014 till 30.06.2024. It
has also been observed that the documents seized by the I.O. in
course of the investigation filed along with the petition dated
06.01.2025 supports the contention of the Petitioner and that
the offence was also committed when the accused was a major.
In view of the aforesaid position, the learned trial court has held
that the prayer of the Petitioner that as per the case records the
court has no jurisdiction, bears no merit. Accordingly, the
petition dated 06.01.2025 was rejected. In view of the
aforesaid factual position, this Court examined the legal
provisions contained in the Juvenile Justice Act, 2015,
Section-6 whereof, which has a bearing on the present case, has
already been mentioned and discussed in the preceding
paragraphs. Similarly, Section-15 of the Juvenile Justice Act,
2015, which is relevant for the purpose of present case,
provides that in case of a heinous offence committed by a child
in conflict with law who is above the age of 16 years, the Board
shall conduct a preliminary assessment with regard to his
mental and physical capacity to commit such offence, ability to
understand the consequences of the offence and circumstances
in which he allegedly committed the offence and, accordingly,
pass an order. The record of the present case reveals that such
provision has not been followed and the Petitioner was never
produced before the Board for such assessment as provided
Page 9 of 11.
under Section-15 of the Juvenile Justice Act, 2015.
15. On a careful consideration of the factual background of
the present case, further taking into consideration the fact that
there is a dispute with regard to the age of the Petitioner and it
has been alleged by the learned counsel for the Petitioner that
the Petitioner was a minor at the time the occurrence took place
for the first time, this Court is of the considered view that such
aspect should have been dealt with as per the relevant provision
contained in the Juvenile Justice Act, 2015 as well as the
POCSO Act, 2012.
16. In view of the analysis made hereinabove, this Court is
inclined to set aside the order dated 03.02.2025 at Annexure-6,
which has been assailed in CRLMC No.682 of 2025.
Accordingly, the same is hereby set aside.
17. Further, it is directed that the Petitioner be placed before
the Board in terms of the provisions contained in Juvenile
Justice Act, 2015. It is further directed that the age of the
Petitioner shall also be determined in terms Section-6 of the
Juvenile Justice Act, 2015 read with Section-34 of the POCSO
Act, 2012 before proceeding further in the trial. Let the
aforesaid exercise be carried out within a period of two months
after providing opportunity of hearing to both sides.
18. Since CRLMC No.682 of 2025 is being disposed of by
Page 10 of 11.
setting aside the impugned order along with a further direction
to be complied with, the bail application filed by the Petitioner
is hereby disposed of by granting liberty to the Petitioner to file
a fresh bail application after the direction given hereinabove are
complied with.
19. With the aforesaid observation and direction, both the bail
application as well as CRLMC application stand disposed of.
(Aditya Kumar Mohapatra )
Judge
Orissa High Court, Cuttack.
The 9th March, 2026/Debasis Aech, Secretary
Signature Not Verified
Digitally Signed
Signed by: DEBASIS AECH
Reason: Authentication
Location: ORISSA HIGH COURT
Date: 12-Mar-2026 14:35:29
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