BINDESH FULCHAND NETAM Vs. STATE OF C.G.

JUDGEMENT

(1.) The petitioner has prayed for the following relief(s):

(2.) The facts, as projected by the petitioner are that the petitioner was arrested under Crime No. 74/2017 dtd. 19/6/2017 registered by respondent police station along with five adult co-accused under Sec. 376(D) of the Indian Penal Code and Sec. 4, 6 and 17 of the POCSO Act. The date of birth of the petitioner is 4/8/1999 and as such, the petitioner was below 18years of age on the date of commission, hence, he was dealt under the provisions of the Juvenile Justice (Care and Protection of Children) Act 2015 (for short, the Act of 2015) but being above 16 years of age on the date of offence and having been alleged to have committed a heinous offence, a preliminary assessment was conducted under Sec. 15(1) of the Act of 2015, and in August - September 2017, the Juvenile Justice Board, Narayanpur, transferred the petitioner's trial to the Children's Court [Sessions (POCSO) Court] under Sec. 18(3) of the Act of 2015. The petitioner was tried under sec. 19(1)(i) of the Act of 2015 as an adult by the Sessions (POCSO) Court, Kondagaon, along with the adult co-accused (Sessions Case No. 16 of 2017). The petitioner alongwith other adult co-accused were convicted by judgment dtd. 20/12/2019. On the date of conviction, the petitioner was 19 years of age and was imposed sentence of imprisonment for 20 years under Sec. 376 (D) of the Indian Penal Code read with Sec. 17 of the Protection of Children from Sexual Offences Act 2012 ('for short, the POCSO Act') with fine of Rs.1.00 Lac and in default thereof, to undergo further imprisonment for one year. An Individual Care Plan (for short, the ICP) prepared by the Children's Court [Sessions (POCSO) Court) was attached to the said judgment dtd. 20/12/2019 as per Sec. 19(2) of the Act of 2015, and directions regarding follow-up were included therein. The said ICP denotes that the petitioner while in the place of safety should be provided with vocational training and counselling, and should be engaged with institutional sports (outdoor/indoor) and institutional creative activities / competitions. The said ICP also includes a detailed daily routine to be adhered to during the petitioner's stay in the place of safety. Upon conviction, the petitioner was placed in the place of safety at Jagdalpur, vide warrant dated 20-12- 2019. The warrant provides that the petitioner should be detained at the place of safety till completion of 21 years of age, and thereafter the petitioner's case should be brought before the Sessions (POCSO) Court for inquiry under Sec. 20 of the Act of 2015. The warrant further provided that every year progress reports of the petitioner should be prepared and submitted to the Sessions (POCSO) Court. Accordingly, progress report dtd. 20/3/2021 was prepared by the Probation Officer of the place of safety and submitted to the Children's Court [Sessions (POCSO) Court]. The said progress report indicates that the petitioner has received informal education, takes part in institutional activities and practices yoga on a daily basis. The said report also indicates that the petitioner is not addicted to drugs and does not indicate any negative conduct on the part of the petitioner. The progress report dtd. 20/6/2021 was prepared by the Probation Officer of the place of safety and submitted to the Children's Court [Sessions (POCSO) Court]. The said progress report indicates that the petitioner has received informal education, takes part in institutional activities and practices yoga on a daily basis. The said progress report also indicates that the petitioner not addicted to drugs. The said progress report does not indicate any negative conduct on the part of the petitioner. Another progress report dtd. 20/9/2021 also states similar things.

(3.) On 29/11/2021, a detailed Consultation Report was filed as the petitioner had attained 21 years of age. The said Consultation Report states that the petitioner's general conduct and progress in the Place of Safety is Very Good. The said Consultation Report further mentions that the petitioner is able to make friends quickly and has followed the rules and regulations of the institution, and that a positive change has been noticed in him. The said Consultation Report indicates that the petitioner willingly imbibed the positive interventions and influences in the Place of Safety. Regarding the petitioner's involvement in the offence, the petitioner mentioned that his then friends who were older than him were anti-social individuals, and that at that time the petitioner had no understanding of what was wrong and what was right. The said Consultation Report shows that the petitioner enjoys a cordial relationship with his family. The said Consultation Report observes that the petitioner is presently depressed as he is scared regarding his case, i.e., possible transfer to prison as he has now attained 21 years of age the petitioner is unable to sleep and doesn't feel hungry. The said Consultation Report states, "the child Bindesh Netam followed the rules of the institution and participated in the activities of the institution and sports activities, more particularly cricket. Through participation in sports, he is developing new interests. The child is repentant about the past incident, to ensure the child's mental stability, the child is kept busy in various activities and institutional duties." The said Consultation Report further mentions that there has been a positive change in the child's character and conduct and the child lives in harmony with others in the institution and has not contravened any rules of the institution.