(2013) 306 KLR 758

IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN

MONDAY, THE 3RD DAY OF JUNE 2013/13TH JYAISHTA 1935

Bail Appl..No. 3386 of 2013 ()

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CRIME NO. 795/2013 OF ADOOR POLICE STATION , PATHANAMTHITTA ...

PETITIONER/ACCUSED:

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PRASAD V, S/O.VISWANATHAN NAIR, AGED 40 YEARS THADATHIL PUTHEN VEETTIL HOUSE, CHIRANICKAL BHAGOM, PARAKKODE VADAKKU MURI, ADOOR TALUK.

BY ADVS.SRI.T.P.PRADEEP SRI.P.K.SATHEES KUMAR

RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.

BY PUBLIC PROSECUTOR SRI.T.ASAF ALI

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION 28/05/2013, THE COURT ON 03/06/2013 PASSED THE FOLLOWING: tss

C.R

S.S.SATHEESACHANDRAN, J.

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B.A No.3386 of 2013

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Dated this the 3rd day of June, 2013

Head Note:-

Protection of Children from Sexual Offences Act, 2012 - Section 7, 8, 28, 33 - Cognizance of an offence - Special Court - Judicial First Class Magistrate has no jurisdiction to entertain and consider the application for bail.

Held:- Cognizance of an offence under the Act without any order of committal for trial can be done by the Special Court on a complaint disclosing facts, which constitute such offence, or upon a police report on such facts. When such be the case, where the Special Court is empowered to take cognizance of the offence on a complaint or police report on facts constituting an offence under the Act, the Judicial First Class Magistrate has no jurisdiction to entertain and consider the application for bail moved by any accused proceeded for an offence under the Act. The Act does not interdict magistrate in ordering the first remand of an accused suspected and proceeded for an offence under the Act, on his production, since the empowerment given under Section 167 of the Code of Criminal Procedure enable him to do so. However, any subsequent order of remand, and entertaining of or consideration of any application for bail from such accused can be done only by the Special Court.

O R D E R

Petitioner is the accused in Crime No.795 of 2013 of Adoor Police Station registered for offences punishable under Sections 7 and 8 of The Protection of Children from Sexual Offences Act, 2012, for short, 'the Act'. He has filed this application seeking his enlargement on bail after his application made to Judicial First Class Magistrate, Adoor for such relief had been turned down vide Annexure A order.

2. A question of vital importance has arisen in the case. Has the magistrate jurisdiction to entertain an application for bail from a person suspected of and proceeded with for an offence under the Act?

3. I heard the learned counsel for petitioner and also learned Public Prosecutor. The Act has been enacted as yet another welfare measure to protect and safeguard the interests of children, in respect of whom departing from the general principles of criminal justice a new concept of justice known as juvenile justice has come into vogue. The Act is intended to provide children protection from offences of sexual assault, sexual harassment and pornography insulating their interest at every stage of the judicial process. So far as reporting of crimes involving offences under the Act against children child friendly procedures have been provided, which, it has to be noticed, also apply in recording of evidence, investigation and trial of such offences. A special provision for establishment of special courts has been made under the Act to deal with the offences committed against children which fall within the Act. Chapter V of the Act contains provisions regarding reporting of cases. Chapter VIII deals with procedure and powers of special courts and recording of evidence. Constitution of Special Courts for the purpose of speedy trial of the cases is provided by Section 28 of the Act covered by Chapter VII. Sub Section (1) of Section 28 has much significance in considering the question emerging for consideration whether Judicial First Class Magistrate has competency and authority to entertain and consider an application for bail moved by a person suspected of committing a sexual offence against children, when he is proceeded with for an offence under the aforesaid Act. Sub Section (1) of Section 28 reads thus:

(1) For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act:

Provided that if a Court of Session is notified as a children's court under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court designated for similar purposes under any other law for the time being in force, then, such court shall be deemed to be a Special Court under this section."

The aforesaid provision under the Act has to be read along with Section 33(1) which govern the procedure and powers of Special Court constituted under the Act. Sub Section (1) of Section 33 reads thus:

(1) 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."

A reading of the aforesaid sub Section of Section 33 of the Act clearly spells out that cognizance of an offence under the Act without any order of committal for trial can be done by the Special Court on a complaint disclosing facts, which constitute such offence, or upon a police report on such facts. When such be the case, where the Special Court is empowered to take cognizance of the offence on a complaint or police report on facts constituting an offence under the Act, the Judicial First Class Magistrate has no jurisdiction to entertain and consider the application for bail moved by any accused proceeded for an offence under the Act. The Act does not interdict magistrate in ordering the first remand of an accused suspected and proceeded for an offence under the Act, on his production, since the empowerment given under Section 167 of the Code of Criminal Procedure enable him to do so. However, any subsequent order of remand, and entertaining of or consideration of any application for bail from such accused can be done only by the Special Court.

4. Annexure A order passed by the magistrate on the application moved by petitioner was one without jurisdiction. Petitioner is at liberty to move the Special Court having competent jurisdiction to seek for his release on bail. Reserving his right to do so, the petition is disposed.

Judicial First Class Magistrate, Adoor is directed to take appropriate steps/pass orders for production of petitioner/accused and, then, for producing him before Special Court.

Send a copy of the order to the Judicial First Class Magistrate, Adoor, and also to Special Court concerned, forthwith.

vdv S.S.SATHEESACHANDRAN, JUDGE