Madras High Court
P.Shanmugavel Raj ... Revision vs State Rep. By on 14 March, 2014
Author: P.N.Prakash
Bench: P.N.Prakash
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 14.03.2014 Coram THE HONOURABLE MR.JUSTICE P.N.PRAKASH Criminal Revision Case (MD) No.743 of 2013 and M.P.(MD)Nos.1 and 2 of 2013 P.Shanmugavel Raj ... Revision Petitioner/Petitioner/ Accused No.1 Vs 1.State rep. by The Inspector of Police, All Women Police Station, Tirunelveli District. ... Respondent/Respondent/ Complainant 2.B.R.Mekala ... Respondent (R2 impleaded as per the order of this Hon'ble Court dated 22.01.2014 and made in M.P.(MD) No.3 of 2013 in Crl.R.C.(MD) No.743 of 2013) PRAYER Criminal Revision Petition filed under Section 397 r/w. 401 of Criminal Procedure Code, praying to call for the records in Crl.M.P.No.628 of 2013 dated 24.10.2013 in Special Case No.3 of 2013 pending in the Court of the Sessions Judge, Mahalir Neethimandram, Tirunelveli, revise the same. !For Petitioner ... Mr.N.Mohideen Basha ^For Respondent 1 ... Mr.P.Kannithevan Government Advocate (Crl. side) For Respondent 2 ... Mr.L.Plato Aristotil *** :ORDER
This Criminal Revision Petition is filed against the order dated 24.10.2013 in Crl.M.P.No.628 of 2013 in Special Case No.3 of 2013 pending before the Sessions Court (Mahalir Neethimandram), Tirunelveli (FAC).
2. The first accused Shanmugavel Raj in Special Case No.3 of 2013 filed a petition Crl.M.P.No.628 of 2013 before the trial Court contending that Tmt.B.R.Mehala who was acting as Special Public Prosecutor in the Court is not legally eligible or qualified to conduct cases in view of Section 32(1) of the Protection of Children from Sexual Offences Act, 2012 (hereinafter would be referred to as POCSO Act). To appreciate the grievance of the revision petitioner, it may be relevant to briefly state the facts obtaining in this case.
3.It is the case of the prosecution that a thirteen year old child was subjected to sexual assault by A1 and a case in Tirunelveli All Women Police Station Crime No.1 of 2013 was registered by the Inspector of Police, All Women Town Police Station, Tirunelveli, for offences under Sections 376, 109, 506(ii) I.P.C. and Section 5(1)(D) of Immoral Traffic (Prevention) Act, 1956 and Section 4 of POCSO Act. After completing the investigation, the respondent police filed a final report against three accused for offences under Section 376(2) I.P.C. Section 4 of POCSO Act r/w. 109 I.P.C. and Section 5(1)(d) of Immoral Traffic (Prevention) Act, 1956. This case was filed before the Sessions Court (Mahila Court), Tirunelveli. The final report was filed directly before the Special Court (Mahila Court), Tirunelveli and it appears that there was no committal proceedings in view of Section 33(1) of POCSO Act which empowers the Special Court to take cognizance without committal proceedings. Thereafter, A1 filed the aforesaid application contending that Tmt.B.R.Mehala is not competent to conduct the trial before the said Court as she was not appointed under Section 32(1) of the POCSO Act. The trial Court dismissed the application by a well considered order. Aggrieved by which, the first accused is before this Court by way of this Criminal Revision Petition.
4.Mr.N.Mohideen Basha, learned counsel appearing for the revision petitioner drew the attention of this Court to Sections 31 and 32 of POCSO Act and reiterated his contention that Tmt.B.R.Mehala cannot be permitted to conduct the prosecution before the said Court. Tmt.B.R.Mehala, whose appointment is in question, got herself impleaded by filing M.P.(MD)No.3 of 2013 which was ordered by this Court on 22.01.2014.
5.Mr.L.Plato Aristotil, learned counsel appearing for Tmt.B.R.Mehala refuted the contentions raised by the learned counsel appearing for the revision petitioner and he was supported by the Government Advocate (Criminal side) on behalf of the State.
6.It is the contention of Mr.N.Mohideen Basha, learned counsel appearing for the revision petitioner that Tmt.B.R.Mehala was not appointed as a Special Public Prosecutor by the State Government as required under Section 32(1) of the POCSO Act and therefore she cannot conduct the trial before the Special Court.
7.To answer the contentions of the learned counsel for the petitioner it may be necessary to look into the origin of the POCSO Act and some of its salient provisions. This Act came into force on 19th June, 2012 and its preamble states "An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto." The title of Chapter VII of POCSO Act is 'Special Courts' it may be necessary to extract Section 28, 31 and 32 of POCSO Act:
"28.Designation of Special Courts.-(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.
(2) While trying an offence under this Act, a Special Court shall also try an offence [other than the offence referred to in sub-section (1)], with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.
(3) The Special Court constituted under this Act, notwithstanding anything in the Information Technology Act, 2000 (21 of 2000) shall have jurisdiction to try offences under Section 67-B of that Act insofar as it relates to publication or transmission of sexually explicit material depicting children in any Act, or conduct or manner or facilitates abuse of children online.
31.Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court.-Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973(2 of 1974)(including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes 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.
32.Special Public Prosecutors.-(1) The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act. (2) A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he had been in practice for not less than seven years as an advocate.
(3) Every person appointed as a Special Public Prosecutor under this Section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of Section 2 of the Code of Criminal Procedure, 1973(2 of 1974) and provision of that Code shall have effect accordingly.
33.Procedure and powers of Special Court.-
(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.
33. (9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, 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, 1973 (2 of 1974) for trial before a Court of Session."
8.From a bare reading of Section 28 of the POCSO Act, the Parliament has conferred powers on the State Government to designate a Court of Sessions to be a Special Court to try the offences under the Act. In other words, POCSO Act does not empower the State Government to constitute or create new Courts under the Act, but only empowers the State Government to designate in each District a Court of Sessions to be a Special Court to try the offences under the Act.
9.In the State of Tamil Nadu, on the proposal made by the High Court, Mahila Courts were constituted in almost all the Districts for speedy trial and disposal of cases for offences committed against women and also under other social laws enacted by the Central and State Governments for the protection of women. These Mahila Courts are not Special Courts under any enactment but are regular Sessions Courts constituted in order to deal with the cases relating to women. For example, if an offence under Section 304(B) is alleged, the final report will be filed before the jurisdictional Magistrate, who would in turn commit the case to the Court of Sessions of the District and the Sessions Judge will transmit the case to the Mahila Court for disposal under Chapter XVIII of the Code of Criminal Procedure "Trial before a Court of Sessions". In the Mahila Court, the prosecutors appointed under Section 24 of the Cr.P.C. would conduct the cases on behalf of the State.
10.The Commissions for Protection of Child Rights Act, 2005 (Central Act 4 of 2006) came into force and Section 25 of the said Act contemplates creation of certain Courts. Section 25 runs thus:
"25.For the purpose of providing speedy trial of offences against children or of violation of child rights, the State Government may, with the concurrence of the Chief Justice of the High Court, by notification, specify at least a court in the State or specify, for each district, a Court of Session to be a Children's Court to try the said offences:
Provided that nothing in this section shall apply if-
(a) a Court of Session is already specified as a special court; or
(b) a special court is already constituted, for such offences under any other law for the time being in force."
11.The State of Tamil Nadu passed G.O.Ms.No.241, Home (Courts-II) Department, Dated 20.03.2009 in exercise of powers under Section 25 of the Commissions for Protection of Child Rights Act, 2005, the operative portion of which runs thus:
"No.II(2)HO/164/2009.--In exercise of the powers conferred by Section 25 of the Commissions for Protection of Child Rights Act, 2005 (Central Act 4 of 2006), the Government of Tamil Nadu, with the concurrence of the Chief Justice of the High Court, Madras, hereby specifies the following Courts of Session specified in column (3) of the Schedule below as Children's Courts to try offences against Children or violation of child rights in addition to the regular work, within the local area of the district specified in column (2) thereof."
12.Beneath the said G.O. a schedule is given under which the Mahila Court in Tirunelveli was specified as Children's Court to try offences against children or violations of Child Rights. Now it may be relevant to refer to the proviso to Section 28 of the POCSO Act which clearly states that if there are already Special Courts under the Commissions for Protection of Child Rights Act, 2005, then that Court shall be deemed to be a Special Court under Section 28(1) of the POCSO Act. Therefore, by telescoping one provision into another, that is, by telescoping the proviso to Section 28(1) of POCSO Act into proviso (a) of Section 25 of the Commissions for Protection of Child Rights Act, 2005 and reading it with G.O.Ms.No.241, it is crystal clear that the Mahila Court in Tirunelveli has the jurisdiction to try the offences in question. Apart from Section 4 of the POCSO Act the accused are also indicted for IPC offences. The Special Court under POCSO Act can take cognizances without committal as provided under Section 33(1) and try IPC offences also as provided under Section 33(2) if committed in the course of the same transaction.
13.Now, the question is, whether the Special Public Prosecutor in the Mahila Court in Tirunelveli is competent to conduct the present prosecution? Section 32(1) of the POCSO Act casts a duty upon the State Government to appoint Special Public Prosecutor for every Special Court for conducting cases under the provisions of the POCSO Act. In other words, the State Government cannot abdicate its duty by not appointing sufficient number of Public Prosecutors, because trial under the POCSO Act should not get unnecessarily delayed on account of the failure of the State Government to appoint Special Public Prosecutors. Only to achieve this end, Parliament in its wisdom has cast a statutory duty on the State Government to appoint Special Public Prosecutors so that prosecutions do not suffer for want of Prosecutors. This does not mean that the trial before the Mahila Court should be conducted only by a Special Public Prosecutor appointed under Section 32(1) of the POCSO Act, because Section 31 of the POCSO Act clearly states that the Special Court shall be deemed to be a Court of Sessions and the person conducting the prosecution shall be deemed to be a Public Prosecutor. The word Public Prosecutor has not been defined in POCSO Act and we have to fall back upon the definition of Public Prosecutor in Section 2(u) of the Code of Criminal Procedure. Section 2(u) runs thus:
"2(u). "Public Prosecutor" means any person appointed under Section 24, and includes any person acting under the directions of a Public Prosecutor;"
14.From the appointment order of Tmt.B.R.Mehala, that was produced by the learned counsel appearing for her, it is clear that the Governor of the State has appointed her as Special Public Prosecutor for the Mahila Court, Tirunelveli, by order dated 28.01.2013. This power is traceable to Section 24(8) of the Code of Criminal Procedure. It is admitted by the rival parties that Tmt.B.R.Mehala has 23 years standing in the Bar and therefore, she satisfies the qualification prescribed both under Section 24(8) of Cr.P.C. as well under Section 32(2) of the POCSO Act. Under the POCSO Act, it is enough if the appointee has only seven years of practice. Therefore, factually also the appointment of Tmt.B.R.Mehala who has 23 years of practice to her credit, cannot be faulted by contending that she does not have the eligibility prescribed by Section 32(2) of the POCSO Act.
15.Mr.N.Mohideen Basha, learned counsel appearing for the petitioners submitted that, as per Section 32(3) of the POCSO Act, a Special Public Prosecutor shall be deemed to be a Public Prosecutor within the meaning of Section 2 (u) of Cr.P.C. but the converse of it is not permissible. In other words, it is his contention that a Special Public Prosecutor appointed under Section 32(1) of the POCSO Act cannot be a Special Public Prosecutor appointed under Section 24(8) of Cr.P.C. There is no quarrel with this contention at all because Section 32(1) of the POCSO Act is distinct from Section 24(8) of Cr.P.C. Learned counsel place emphasis on Section 32(3) of the POCSO Act and contended that an appointee under Section 24(8) of the Code cannot be deemed to be a Special Prosecutor under the POCSO Act. However, this argument does not in any way advance the case of the revision petitioner because of the following reasons.
16.Let us assume for a moment that Section 32(3) is not in the Statute Book. Section 31 of the POCSO Act says that a Special Court shall be deemed to be a Court of Sessions. Section 33(9) of POCSO Act states that the trial in a Special Court under the POCSO Act should be in accordance with the procedure specified in the Code for trial before a Court of Sessions. Therefore, a trial before the Special Court must be conducted as adumbrated under Chapter XVIII of the Code of Criminal Procedure. Section 225 which falls under the Chapter XVIII of the Code clearly states:
"225.Trial to be conducted by Public Prosecutor.-In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor."
17.The expression Public Prosecutor is not defined in the POCSO Act about which I referred to above. If Section 32(3) is not there in the POCSO Act, a Special Public Prosecutor appointed under Section 32(1) of the POCSO Act cannot act as a Public Prosecutor before the Sessions Court. Only in order to get over this legal impediment, Section 32(3) has been incorporated in the POCSO Act so as to make a Special Public Prosecutor appointed under Section 32(1) of the POCSO Act to fall within the meaning of Section 24 of the Code via Section 2(u) of the Code.
18.Mr.N.Mohideen Basha, learned counsel appearing for the revision petitioner brought to my attention Rule No.6(1)(b) of the Protection of Children from Sexual Offences Rules, 2012, which states as under:
"6(1)(b). to monitor the appointment of Public Prosecutors by State Government;"
19.This rule merely empowers the Monitoring Committee to find out whether the State Governments are properly implementing the Act in letter and spirit by appointing Special Public Prosecutors or not, and pleading insufficiency of funds as a reason for not filling up such posts. Therefore, this rule also does not in any way advance the case of the revision petitioner.
20.In fine, from a conspectus of the legal position set out above, I am of the firm opinion that there is no legal impediment in Tmt.B.R.Mehala acting as Special Public Prosecutor before the Mahila Court, Tirunelveli (Special Court for POCSO Act) and conduct the trial for offences under the POCSO Act as well for other offences for which the accused can be tried in a same prosecution.
21.In the result, this Criminal Revision Petition is dismissed. Consequently, connected miscellaneous petitions are closed.
srm To The Sessions Judge, Mahalir Neethimandram, Tirunelveli.