Alteration of Charge Under S.216 CrPC Not Prejudicial If Accused Notified; Parity Plea Rejected for Dissimilar Roles in POCSO Case: Jharkhand High Court - 2025-02-18

Jharkhand High Court Denies Bail to POCSO Convict, Citing Lack of Prejudice and Inapplicable Parity

Ranchi, Jharkhand - The High Court of Jharkhand has dismissed an interlocutory application seeking the suspension of a 25-year sentence for a convict in a gang-rape and POCSO case. A Division Bench comprising Justice Sujit Narayan Prasad and Justice Sanjay Prasad held that the late-stage alteration of charges did not prejudice the appellant and that the principle of parity could not be applied due to his distinct role compared to a co-accused who was granted bail.

Case Background

The appellant, Subhankar Das, was convicted by the Special Judge (POCSO), Jamshedpur, under Sections 376(D) (gang rape), 379 (theft), and 411 (dishonestly receiving stolen property) of the IPC, alongside Section 6 of the POCSO Act. He was sentenced to 25 years of rigorous imprisonment.

The prosecution's case originated from a complaint by the victim in 2017. She alleged that since 2014, when she was a minor, she was repeatedly sexually abused by the co-accused, Bipul Sharma, on the pretext of marriage. The abuse also occurred at the appellant Subhankar Das's house. The victim further alleged that after her marriage to another man, both Bipul Sharma and Subhankar Das forcibly entered her matrimonial home, gang-raped her, and stole her husband's motorcycle.

Appellant's Arguments

The appellant's counsel primarily raised two grounds for suspension of sentence:

1. Prejudice due to Alteration of Charge: It was argued that the trial court altered the charge from Section 8 to the more serious Section 6 of the POCSO Act at the final argument stage, causing "serious prejudice" as the appellant was not given a proper opportunity to defend against the altered charge.
2. Parity with Co-accused: The counsel pointed out that the co-accused, Bipul Sharma, who faced identical allegations, had already been granted bail by a coordinate bench.

State's Counter-Arguments

The state prosecutor vehemently opposed the bail plea, contending that: -

The prosecution had proven the charge of aggravated penetrative sexual assault on a minor beyond a reasonable doubt. -

The principle of parity is not a binding rule of law and must be applied by considering the totality of circumstances and the specific role of each accused. -

Even if the victim was 19 at the time of the FIR, the initial offence occurred in 2014 when she was a minor, making her consent irrelevant under the POCSO Act.

Court's Analysis and Decision

The High Court meticulously examined the appellant's contentions and the trial court records before arriving at its decision.

On the Issue of Prejudice: The Bench noted that the trial court had invoked its power under Section 216 of the Cr.P.C. to correct what it deemed a "clerical mistake" in the charge. The Court highlighted a crucial excerpt from the trial court's order dated 23.08.2022:

"...the amended charge was read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried."

The High Court observed that since the amended charge was read over and explained to the appellant, and he had participated in the proceedings thereafter without challenging the alteration order, the plea of prejudice was untenable. The Court clarified that prejudice arises when a party is unaware of the charge and is denied the opportunity to defend, which was not the case here. The Court cited the Supreme Court's ruling in Rafiq Ahmad @ Rafi vs State of Uttar Pradesh , stating that a plea of prejudice must demonstrate a "failure of justice," which the appellant failed to do.

On the Principle of Parity: The Court distinguished the appellant's case from that of the co-accused, Bipul Sharma. The order granting bail to Sharma had considered that the victim had admitted to having married him. In contrast, no such relationship existed with the appellant, Subhankar Das. The victim had specifically deposed that Das had sexually assaulted her.

Citing the Supreme Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana , the Bench emphasized that parity must focus on the specific role of the accused. It stated:

"Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established."

The court concluded that the appellant's role was distinct and more severe in the context of the allegations, and therefore, he could not claim parity with the co-accused.

Final Order

Finding no merit in the grounds raised, the High Court concluded that it was not a fit case for suspension of sentence. The interlocutory application was accordingly dismissed, with the clarification that the observations made would not prejudice the final hearing of the criminal appeal.