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2026 DIGILAW 105 (GUJ)

State Of Gujarat v. Sanjay Mangaji Thakor

2026-02-19

D.M.VYAS, N.S.SANJAY GOWDA

body2026
JUDGMENT : N.S.SANJAY GOWDA, J. 1. Being aggrieved by an order of acquittal, the State is in appeal. The order of acquittal was passed on 3 rd August 2024. However, the appeal against that order has been preferred only on 16 th December 2025 i.e., after a delay of 313 days. Hence, an application for condoning the delay has been filed. 2. When considering the application for condonation of delay, we noticed certain requirements which are to be complied with in relation to offences under the Protection of Children from Sexual Offences Act, 2012 (for short, ‘the POCSO Act”) and which have not been complied with. This has therefore compelled us to pass an order detailing the procedure to be followed by the Trial Courts while rendering their judgments, both under the POCSO Act and also under the CrPC and BNSS. 3. The POCSO Act being a special enactment, adherence to the provisions of the said Act and the rules would be essential. We are also considering the provisions relating to the very same issue involved that is involved in this appeal, with reference to the Code of Criminal Procedure, 1973 (for short, ‘Cr.PC’) and the BNSS in the later part of this order. 4. At the outset, it must be stated that Section 31 of the POCSO Act stipulates that the provisions of the Cr.PC, save as otherwise provided under the POCSO Act, would apply to the proceedings before a Special Court, on the family or guardian of the child. 5. Section 40 of the POCSO Act confers a right on a child to take the assistance of a legal counsel of their choice for any offence under the POCSO Act and this right is made subject to the provisions of Section 301 of the Cr.PC. 6. Section 301 of the Cr.PC states that in cases where a private person has instructed a pleader to prosecute any person in any court, the Public Prosecutor or Assistant Public Prosecutor shall conduct the prosecution and pleader who has been instructed to prosecute a private person is required to act under the directions of the Public Prosecutor of Assistant Public Prosecutor. The said person is, however, permitted to file written arguments after the evidence is closed on securing the permission of the Court. 7. The said person is, however, permitted to file written arguments after the evidence is closed on securing the permission of the Court. 7. Section 302 of the Cr.PC also mandates that any Magistrate trying a case can permit the prosecution to be conducted by any person other than the police officer below the rank of Inspector, but no person other than the Advocate General or the Court Advocate or the Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission. 8. These two provisions reflect the fundamental premise that for prosecution for the commission of a crime, though the crime is effected against a person, who thereby becomes a victim, is nevertheless considered as a crime against the State and it is only the State which can prosecute the offender for commission of the said offence. 9. The provisions of POCSO Act however deviates from this general principle and confers a right on the family or the guardian of the child and permits them to take the assistance of a legal practitioner when it comes to the prosecution of offences under the POCSO Act and Section 40 is a clear indication of that particular intent of the law. 10. It cannot be disputed that it is the victim of a crime who is directly affected by the crime. The earlier position of law is that whenever a crime was committed, it became the obligation of the State to prosecute the offender and bring him to justice. The State was the sole entity in the prosecution of the offender since every crime was considered to be an attack on the very fabric of the Society. 11. However, the fundamental premise that it is only the State which can prosecute the offender came to be diluted, at least, in so far as it related to the preferring of an appeal on the verdict rendered by the Criminal Court on conclusion of the trial. 12. Section 372 of the Cr.PC declares that no appeal shall lie from any judgment except as provided by a court or by any other law. The subsequent provisions, such as Section 374 and Section 378 provide for filing of an appeal from the orders of conviction and acquittal respectively. 13. As against a conviction, it is obviously the accused who will have the right to prefer an appeal. The subsequent provisions, such as Section 374 and Section 378 provide for filing of an appeal from the orders of conviction and acquittal respectively. 13. As against a conviction, it is obviously the accused who will have the right to prefer an appeal. Section 374 of Cr.PC makes it clear that as against an acquittal, it is only the District Magistrate or the State which can prefer an appeal. This was the original position under the provision of the Cr.PC prior to 2009. Thus, the specific provisions relating to filing of an appeal permitted the right to prefer an appeal only to the person who suffered a conviction and to the State, if the person accused of commission of an offence had been acquitted by the Trial Court. 14. By Act No.5 of 2009, Section 372 was amended and a proviso was added, which reads as under: “Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” 15. By virtue of this amendment, for the first time, the victim was conferred a right to prefer an appeal. Interestingly, the appeal would be preferred not only against an order of acquittal but also in respect of a conviction for a lesser offence or the imposition of an inadequate compensation. Thus, the normal premise that only the State would be aggrieved by an acquittal or by the imposition of a lesser sentence was done away with and the victim was given a right to prefer an appeal both against an acquittal and so also also against an order convicting an accused for a lesser offence. This amendment basically recognized the indisputable fact that the victim of a crime also had an inherent right to approach the appellate court complaining that the judgment passed in respect to the crime to which he was subjected to, had not been properly dealt with or had been adequately dealt with. 16. This amendment basically recognized the indisputable fact that the victim of a crime also had an inherent right to approach the appellate court complaining that the judgment passed in respect to the crime to which he was subjected to, had not been properly dealt with or had been adequately dealt with. 16. Insofar as the general principle that it is only the State which can prosecute for a crime, as indicated earlier, the provisions of the POCSO Act deviates from this normal process and conferees a right for the victim’s parents or family to take the assistance of a legal practitioner for the offences committed under the Act. 17. The Act enables the framing of Rules and accordingly Rules have been in 2020 called “The Protection of Children from Sexual Offence Rules, 2020”. 18. The Rules framed under the Act have created a legal obligation on the State and its functionaries to provide certain information to the child's parents or guardians or any other person in whom the child has trust and confidence. Rule 4 of the Rules which relates to care and protection of a child contains a sub-rule (15), which reads as follows: “(15) The information to be provided by the SJPU, local police, or support person, to the child and child’s parents or guardian or other person in whom the child has trust and confidence, includes but is not limited to the following:- (i) the availability of public and private emergency and crisis services; (ii) the procedural steps involved in a criminal prosecution; (iii) the availability of victim’s compensation benefits; (iv) the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation; (v) the arrest of a suspected offender; (vi) the filing of charges against a suspected offender; (vii) the schedule of court proceedings that the child is either required to attend or is entitled to attend; (viii) the bail, release or detention status of an offender or suspected offender; (ix) the rendering of a verdict after trial; and (x) the sentence imposed on an offender.” 19. As could be seen from sub-rule (15), the child's parents or guardian or a person to whom the child has trust and confidence are required to be informed of the status of investigation of the crime, the arrest of a suspected offender, filing of charges against a suspected offender, the schedule of court proceedings that the child is either required to attend or is entitled to attend, the bail, release or detention status of an offender, the rendering of a verdict after trial, and the sentence imposed on an offender. 20. There is, thus, a marked difference in respect of offences under the POSCO Act when it comes to the obligation of the State, through its SJPU, local police or support person, to keep the victim informed at every stage of the prosecution. The guardian or the parents of the victim are, in fact, required to be informed at every step of the entire process, i.e. investigation of the crime, the arrest of the offender, filing of charge-sheet, the bail and more importantly the rendering of a verdict after trial and the sentence imposed on the offender. 21. If the proviso to Section 372 is read with Rule 4(15) are read conjointly, it is obvious that the obligation to inform the parents of a child about rendering of a verdict and the sentence imposed is fundamentally to facilitate the invocation of the right of the parents of a child or the guardian of a child to invoke the right to prefer an appeal. 22. It is settled law that every provision made by the legislature is meant to achieve a certain objective and no rule is formulated in the abstract or as a mere formality. Viewed from this background, it is absolutely clear that under POCSO Act, it is mandatory for the police to inform the parents or guardians of the child regarding the rendering of the verdict after trial and the sentence imposed on an offender. As already observed above, this is basically to provide an opportunity to the victim's family to exercise their right to prefer an appeal. 23. It is also to be noticed here that the Rules do not actually obligate the court of informing the victim's family about the rendering of a judgment. As already observed above, this is basically to provide an opportunity to the victim's family to exercise their right to prefer an appeal. 23. It is also to be noticed here that the Rules do not actually obligate the court of informing the victim's family about the rendering of a judgment. But given the legal provisions of the Act, the Code of Criminal Procedure Code and the totality of circumstances (and for the reasons to be discussed subsequently in relation to trying of the offences under the Cr.PC, for other offences) it will be necessary to hold that the Court is also under an obligation to inform the parents of the child or the guardians of the child or the other person in whom the child has trust and confidence about the rendering of a verdict and the sentence imposed by it. If the Court were to inform the aforementioned persons about its verdict and the sentence, the ultimate objective of the law- makers to enable the victim's family to exercise their right prefer an appeal would be fulfilled. 24. In order to facilitate this, it would be appropriate to direct all the Special Courts to collect the addresses of the parents of the child or guardian of the child or the other persons in whom the child has trust and confidence at the time when the deposition of the child is recorded. The Courts would also be well advised to collect the mobile numbers, email addresses (if available) so that the rendering of the verdict, the sentence imposed and a copy of the judgment both a hard copy and a soft copy, can not only be informed to them but can also be sent to them immediately. 25. The Registrar General is therefore directed to issue a circular directing all the Special Courts to collect the addresses, mobile numbers, email addresses of the aforementioned three people at the time of recording the evidence of the child or their parents and immediately inform them after the verdict is rendered. 26. In this case, the passing of this order has become necessary since it is noticed that Rule 4(15) has admittedly not been complied with and the child's parents or guardian or the other persons in whom the child has trust and confidence have not been informed about the verdict or the sentence imposed by the Special Court. 26. In this case, the passing of this order has become necessary since it is noticed that Rule 4(15) has admittedly not been complied with and the child's parents or guardian or the other persons in whom the child has trust and confidence have not been informed about the verdict or the sentence imposed by the Special Court. It is quite possible that had the verdict and sentence been communicated to the aforementioned persons, they may have taken action to immediately and within the prescribed time to prefer an appeal, even if the State has decided not to prefer an appeal. 27. Since Rule 4(15) mandates the State to provide the information to the aforementioned three persons, it would also be necessary to issue another direction to the State to ensure that in the event the State decides not to prefer an appeal against an acquittal or does not wish to prefer an appeal against conviction for a lesser offence, the State would also have to inform the victim immediately of this decision. 28. The State is, therefore, directed to issue instructions to all these Special Juvenile police unitsJPU to ensure that the decision of the State not to prefer an appeal either against the acquittal or conviction of a lesser offence or against the sentence imposed is immediately informed to the parents of the child or guardian or the persons interested. 29. Though, it may not be necessary for this case, having regard to the fact that there is prejudice being caused to the victims of every crime, the following further observations and directions have also become necessary. 30. As already observed, it is for the State to prosecute the offender and bring him justice. But, by virtue of the amendment made by Act No.5 of 2009, the victim is also given the right to prefer an appeal under the proviso to S. 372 and also under the proviso to S. 413 of the newly enacted BNSS, 2023, which are both identical. It would therefore be necessary to have a brief overview of the provisions in the Cr.PC relating to the right of a victim to participate in the proceedings, which have been initiated due to the crime committed against him. 31. It would therefore be necessary to have a brief overview of the provisions in the Cr.PC relating to the right of a victim to participate in the proceedings, which have been initiated due to the crime committed against him. 31. Section 154 of the Cr.PC which provides for registration of an information given to the police officer regarding commission of a crime, by virtue of Section 154(2), mandates that a copy of the information, which is recorded, as provided in sub-section (1) is required to be given immediately and free of cost to the informant. It is no-doubt true that in all cases, the victim is not the person who gives information of the crime, but the fact that an informant is required to be given a copy of the information recorded, itself, indicates that the person who has knowledge of the crime and who brings it to the notice of the police, should also be informed about the kind of information that has been recorded. 32. The Police after investigation are required to submit the final report under Section 173 of the Cr.PC. Section 173(2) requires an officer in charge of the police station to forward to a Magistrate a final report on conclusion of the investigation to enable the Magistrate to take steps in the matter. 33. Section 173 (2) (ii) goes on to state that the o shall also communicate in the manner prescribed by the State Government the action taken by him to the person who had given the information relating to the commission of the offence. 34. In other words, the person who informs the police about the crime is required to be given a copy of the information recorded and on conclusion of the investigation, the action taken by the officer is also required to be communicated to the person who gave information about the commission of the offence initially. 35. As already observed, though the person who informs the police initially may not necessarily be the victim, nevertheless the law recognizes the fact that the person who has reported the crime is to be kept informed about the developments in the conduct of investigation. 35. As already observed, though the person who informs the police initially may not necessarily be the victim, nevertheless the law recognizes the fact that the person who has reported the crime is to be kept informed about the developments in the conduct of investigation. These provisions therefore indicate that though it is the obligation of the State to prosecute the offender and bring him to justice, the persons who initiated the entire process should also be informed of the action taken by the State, thereby meaning that persons other than the State are also considered as persons who have an interest in the prosecution. 36. The Cr.PC was amended in the year 2009 and Chapter XIA pertaining to “Plea Bargaining” was introduced which enabled a person accused of an offence to make an application for plea bargaining in the Court in which such offence was pending trial. Section 265B(3) reads as under:- ”After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.” 37. This provision mandates that on such an application being filed by the offender, the Court is obligated to issue notice not only to the Public Prosecutor but also to the complainant of the case. This indicates that the Court before it takes a decision on the request of Plea Bargaining would have to necessarily involve the complainant. The subsequent provisions of the said Section also makes it clear that the complainant is also required to be heard along with the Public Prosecutor while considering the said application. These provisions would also indicate that the law intended the complainant who is normally the victim to be informed of any attempt being made by the accused to reduce the liability that he may ultimately face by resorting to the plea bargaining. 38. On conclusion of a trial, the Code requires a judgment to be pronounced as provided under Section 353 of the Cr.PC. Sub-section (1) of Section 353 reads as under: “353. 38. On conclusion of a trial, the Code requires a judgment to be pronounced as provided under Section 353 of the Cr.PC. Sub-section (1) of Section 353 reads as under: “353. Judgment.—(1) The judgment in every trial in any Criminal Court or original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,— (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.” 39. This section mandates that the judgment should be pronounced in open court and immediately after the termination of the trial or at some subsequent time of which notice should be given to the parties or their pleaders. Though, technically speaking, the victim of a crime is not a party to the criminal case, but having regard to the fact that the victim has statutorily been provided the right to prefer an appeal, it is obvious that the victim should also have the notice of the judgment to be pronounced. 40. It is however pertinent to state here that the presence of the victim or her representative, such as his lawyer, need not be personally present while the judgment is being pronounced, the victim would however is required to have notice that the judgment has been delivered. 41. There is yet another provision which is required to be taken into consideration i.e., Section 363, which relates to giving of a copy of the judgment to the accused and to other persons. Section 363 of Cr.PC reads as under: “ 363. Copy of judgment to be given to the accused and other persons .— (1) When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost. Section 363 of Cr.PC reads as under: “ 363. Copy of judgment to be given to the accused and other persons .— (1) When the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost. (2) On the application of the accused, a certified copy of the judgment, or when he so desires, a translation in his own language if practicable or in the language of the Court, shall be given to him without delay, and such copy shall, in every case where the judgment is appealable by the accused, be given free of cost: Provided that where a sentence of death is passed or confirmed by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applies for the same. (3) The provisions of sub-section (2) shall apply in relation to an order under section 117 as they apply in relation to a judgment which is appealable by the accused. (4) When the accused is sentenced to death by any Court and an appeal lies from such judgment as of right, the Court shall inform him of the period within which, if he wishes to appeal, his appeal should be preferred. (5) Save as otherwise provided in sub-section (2), any person affected by a judgment or order passed by a Criminal Court shall, on an application made in this behalf and on payment of the prescribed charges, be given a copy of such judgment or order or of any deposition or other part of the record: Provided that the Court may, if it thinks fit for some special reason, give it to him free of cost. (6) The High Court may, by rules, provide for the grant of copies of any judgment or order of a Criminal Court to any person who is not affected by a judgment or order, on payment, by such person, of such fees, and subject to such conditions, as the High Court may, by such rules, provide.” 42. As could be seen from Section 363, the judgment is not only to be given to the accused but also to such other persons. 43. As could be seen from Section 363, the judgment is not only to be given to the accused but also to such other persons. 43. Sub-Clause (5) of Section 363 provides for a copy of the judgment or order to be given to any person affected by a judgment; provided he makes an application and pays specified charges. Obviously, amongst the people affected by the judgment passed against an accused, the primarily affected person would be the victim and he would have a right to receive a copy of the judgment. The proviso to Section 365 also states that the Court may, if it thinks fit for special reasons, give a copy of the judgment to the person affected free of cost. This would therefore indicate that every person affected by a judgment is statutorily entitled to receive the copy of the judgment. 44. If these provisions are read conjointly and also with Section 372, there cannot be any doubt that the ultimate intention of the legislature was to ensure that the victim is made aware of a judgment being rendered by the competent court in respect of a crime which has been committed against the victim so as to enable the victim to prefer an appeal. 45. If a victim of a crime is unaware about the date on which a judgment has been passed in respect of the crime committed against him, the provision which enables him to prefer an appeal would be rendered an illusory remedy. 46. A victim in a criminal proceeding is not obliged to appear at any stage of the proceedings except while deposing, i.e., rendering of evidence of the crime committed against him. On the completion of his deposition, he would have no notice or knowledge about the further proceedings in the criminal proceedings and, therefore, the probability of him knowing that when the judgment would be rendered, would be bleak if not completely absent. 47. In order to give effect to the right of the victim to prefer an appeal, it would be therefore necessary for the criminal courts to collect the addresses, mobile numbers, email IDs (if available) at that time when the victims or their family members render their evidence before the court. 47. In order to give effect to the right of the victim to prefer an appeal, it would be therefore necessary for the criminal courts to collect the addresses, mobile numbers, email IDs (if available) at that time when the victims or their family members render their evidence before the court. If such details are collected, the Court at the time of pronouncing the judgment can inform them and more importantly after the judgment is rendered, he can order that a copy of the judgment be sent to the victim to enable the victim to prefer an appeal. 48. Since an accused is given a free copy of the judgment, it is but necessary that a victim should also be given a free copy of the judgment since he is also directly affected by the verdict of the Court. Therefore, a circular is required to be issued mandating that all criminal courts shall follow the procedure of collecting the addresses, phone numbers, mobile numbers and email id’s (if available) of the victims and notify them about the pronouncement of the judgment by furnishing them with a copy of the judgment free of cost. This would subserve the interest of justice and enable the victim to exercise his right to prefer an appeal. 49. The above-discussion, though made with reference to the Cr.PC, will be equally applicable for trials conducted under the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) since the provisions are more or less the same even under the BNSS. 50. Having regard to the aforementioned discussion and taking into consideration that technology has advanced to such an extent that the day-to-day proceedings of every court is being uploaded to the web portal i.e., CIS (Court Information Systems), by following this procedure, the aforementioned problem can be eased by providing an additional source of information to the victims. 51. The system, as it exists today, enables a user to register himself in the portal and request for automatic sending of SMS messages regarding the progress of the case in which he or she is interested. 51. The system, as it exists today, enables a user to register himself in the portal and request for automatic sending of SMS messages regarding the progress of the case in which he or she is interested. The police at the time of registering the FIR and the registry of the Court while inputting the data into the CIS shall ensure that the mobile numbers of the victims or their family members are fed into the CIS system so as to enable them to receive updates about the proceedings of the Court on every day on which the case is taken up. This would ensure that the victims are kept in the loop about the day- to-day progress of the case in which they are vitally interested i.e. in a case where they are the victims of a crime. 52. The State Government shall also issue a circular to the police to collect the mobile numbers of the victim or their family members and incorporate them in the FIR and/ or charge-sheet and the Registry of the Criminal Courts shall also incorporate these details and ensure that they receive SMS updates on the day-to-day proceedings including the disposal of the case. 53. The Registrar General and so also the State shall a compliance report of these directions by the next date of hearing in this appeal. 54. Since any order passed in this appeal would a the victim, it would be necessary to add the victim as party respondent No.3. The cause title to be amended accordingly by the learned APP within two weeks. 55. Since there is a delay of 313 days in filing this appeal, issue NOTICE to the accused respondents and also the victim returnable on 23.03.2026