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S.28 POCSO Act | Offences Under SC/ST Act Can Be Tried By POCSO Court If Part Of Same Transaction: Kerala High Court
Tellmy Jolly
11 Nov 2023 5:15 AM GMT
The Kerala High Court has permitted a POCSO Court to try the offences under SC/ST Act relating to abuse and assault of the minor victim's father stating that the two offences were closely connected as the incident occurred within half hour of the offence under POCSO Act.Justice Gopinath P. relied on MS.P xxx Vs. State of Uttarakhand & Anr. (2022 LiveLaw (SC) 554) which explained when two...
The Kerala High Court has permitted a POCSO Court to try the offences under SC/ST Act relating to abuse and assault of the minor victim's father stating that the two offences were closely connected as the incident occurred within half hour of the offence under POCSO Act.
Justice Gopinath P. relied on MS.P xxx Vs. State of Uttarakhand & Anr. (2022 LiveLaw (SC) 554) which explained when two or more acts constitute the same transaction for the purpose of being tried together.
Section 28(2) of the POCSO Act also stipulates that while trying an offence under the POCSO Act, the Special Court may also try other offences under which the accused was charged at the same trial.
“Having regard to the law laid down in MS.P xxx’s case (supra) and also having regard to the provisions of Section 28(2) of the POCSO Act, I am of the view that S.C.No.555 of 2022 on the file of the District and Sessions Court, Kottayam should be transferred and tried before the Fast Track Special Court (POCSO), Erattupetta,” the bench thus ordered.
The Court also directed the POCSO Court to decide whether the offences can be tried jointly or one after the other.
The accused has approached the High Court seeking a join trial for cases pending before the District & Sessions Court, Kottayam and Fast Track Special Court (POCSO), Erattupetta. The allegation was that the accused tried to sexually assault the minor victim and also attacked her father who came to spot. The minor victim and her father belonged to SC Velan community and split charges were framed against the accused.
The offences alleged under Sections 354 (assualt or criminal force with intent to outrage the modesty of woman), 354A (sexual harassment and punishment), 451 (house trespass), 506 (criminal intimidation) of the IPC and Section 3(2)(va) (punishment for offences of atrocities) of the SC/ST (POA) Act was pending before the Fast Track Special Court (POCSO). The allegation was that the accused trespassed into the house of the de facto complainant with an intention to commit sexual assault and outrage the modesty of the minor victim.
The offences alleged under Sections 308 (attempt to commit culpable homicide), 324 (voluntarily causing hurt with dangerous weapons or means), 506 (criminal intimidation) of the IPC and Section 3(2)(va)(punishment for offences of atrocities) of the SC/ST (POA) Act was pending before the District & Sessions Court. The allegation was that the accused caused hurt to the father of the de facto complainant and threatened them with iron rod.
Advocate Niharika Hema Raj, counsel for the accused submitted that a joint trial should be conducted as both transactions were closely connected to each other and formed part of the same transaction.
Senior Public Prosecutor Vipin Narayan, submitted that both the offences can be tried by the POCSO Special Court under section 28 (2) of the POCSO Act.
The Court noted that both the incidents took place within a gap of half hour and at the same place. It found that mahazar and several witnesses were also common. It noted that only the investigating officers were different. The Court thus allowed the petition and held that the POCSO Special Court may try both the offences alleged against the accused.
“Accordingly, this Crl.M.C. is allowed. It is directed that S.C.No.555 of 2022 now pending before the District & Sessions Court, Kottayam shall be transferred and shall be disposed of by the Fast Track Special Court (POCSO), Erattupetta. That Court shall also consider whether the cases can be tried jointly or one after the other, in accordance with the law.”
Citation: 2023 LiveLaw (Ker) 648
Case title: CRL.MC NO. 3003 OF 2023
Case number: Tomy K M v State of Kerala
