(1) A petition under Section 438 of Cr.P.C., seeking anticipatory bail for the offences punishable under Sections 5(i) and 6 of the POCSO Act and Sections 9 and 10 of the Child Marriage Act, 2006, was filed before the Special Court, designated under the POCSO Act at Karur, and the same was returned by the Special Court stating that it has no jurisdiction to entertain the application for anticipatory bail.
(2) Thereafter, the application was filed before the Sessions Court, that application was resisted by the learned Public Prosecutor stating that, the anticipatory bail application is not maintainable before the Sessions Court, only the Special Court has exclusive jurisdiction to entertain the same.
(3) In the above circumstances, the learned Sessions Judge referred the anticipatory bail application, to the High Court under Section 395 of Cr.P.C. (Reference), to decide the question- whether the District and Sessions Court has jurisdiction to entertain the anticipatory bail applications for the offences committed under the POCSO Act?
As we know, Section 438 of Cr.P.C., deals with grant of bail to the person apprehending arrest and the High Court and Sessions Courts are empowered to grant such pre-arrest bail.
[Qsn. No. 1] Now, a doubt arose, after the constitution of Special Courts, whether the Special Court alone has jurisdiction to deal with the application filed under Section 438 of Cr.P.C. and the Sessions Courts are excluded from dealing with such petitions?
(1) A cursory reading of Section 28(1) of the POCSO Act would go to show that, a Court of Session, which is already in existence in each district, can be designated as a Special Court to try the offences under the POCSO Act.
(2) Also, an Additional Sessions Judge exercising jurisdiction in the Court of Session, could preside over the Special Court.
(3) Further, under Section 33(1) of the POCSO Act, a Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.
(4) Under Section 33(9) of the POCSO Act, a Special Court shall have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, for trial before a Court of Session.
(5) In such circumstances, the Special Court has to be treated as Court of original jurisdiction and it has all the powers of Court of the original criminal jurisdiction, as provided under the Code of Criminal Procedure, except those are specifically excluded under the relevant Act.
(6) Also, Section 31 of the POCSO Act, makes it very clear that the provisions of the Code of Criminal Procedure including the provisions as to bail and bonds shall apply to the proceedings before a Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a Court of Sessions, and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.
(7) The Court was of the opinion that the entire Chapter XXXIII of Cr.P.C., which deals with bail and bonds, are applicable to the proceedings before the Special Court, there cannot be any doubt that Section 438 of Cr.P.C., which deals with Anticipatory Bail, is also applicable to a Special Court.
(8) However, the Court noted, Section 31 of the POCSO Act opens with, “Save as otherwise provided in this Act”. A careful reading of the POCSO Act would go to show that, there is no provision under the POCSO Act specifically excluding Section 438 of Cr.P.C., before the Special Court.
(9) “It is clear that the Special Court designated under the POCSO Act is empowered to deal with the application filed under Section 438 of Cr.P.C., and the Sessions Court is excluded from entertaining the application filed under Section 438 of Cr.P.C”.
(10) “The Special Court designated under Section 28 of the POCSO Act alone is empowered to exercise power under Section 438 of Cr.P.C., in view of Section 31 of the POCSO Act, and the Sessions Court cannot entertain any application seeking pre-arrest bail in respect of offences under the POCSO Act”, the Court concluded.
(11) In this regard Court relied upon the following judgements
A.R.Antulay v. R.S.Nayak [AIR 1984 Supreme Court 718],
A Full Bench of the Calcutta High Court in Teru Majhi v. Atate of West Bengal [2014(4) CTC 402],
Harshad S.Mehta v. State of Maharashtra [2001(8) Supreme Court Cases 257]
[Qsn. No. 2] Whether the Special Court is empowered to deal with the anticipatory bail application relating to the offences under the POCSO Act, even before the registration of a First Information Report, or lodging a complaint before the Court concerned, on an the apprehension of the arrest?
(1) The Court clarified that the Special Court is exclusively empowered to deal with the offences under the POCSO Act and thereby, the normal Criminal Courts constituted under Section 6 of Cr.P.C., are excluded from dealing with the offences under the POCSO Act.
(2) “When the Special Court is exercising the exclusive jurisdiction to deal with the offences under the POCSO Act, the same Court also has the power to deal with the application under Section 438 of Cr.P.C., even before registering the First Information Report.”
(3) “Even in cases where pre-arrest bail is sought before registering the First Information Report, only the Special Court designated under the POCSO Act can entertain the application and the regular Sessions Court cannot exercise its power under Section 438 of Cr.P.C”, the Court concluded.
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT (Criminal Jurisdiction)
Reserved on 11.09.2020 Delivered on 30.09.2020
HON'BLE MR.JUSTICE M. SATHYANARAYANAN AND THE HON'BLE MR.JUSTICE V.BHARATHBHARATHIDASAN
Criminal Reference (MD). No.2 of 2020