[Offences Under The POCSO Act] Sessions Court Can't Entertain Anticipatory Bail Pleas; Only Special POCSO Courts Are Empowered To Do So: Madras HC [Read Order]

The Madras High Court (Madurai Bench) on Wednesday (30th September) ruled that the Special courts, as designated under the provisions of Protection of Children from Sexual Offences Act, 2012 [POCSO Act] alone are empowered to entertain pre-arrest bail petitions in respect of offences under the POCSO Act.The Bench of Justices M. Sathyanarayanan and V. Bharathidasan further held that the Sessions Court cannot entertain such applications.It may be noted that a matter was placed before the Madras High Court (Madurai Bench) to decide a reference sought by the learned District Judge, Karur, under Section 395 of the Code of Criminal Procedure, 1973, with regard to the jurisdiction of the District and Sessions Court in entertaining the anticipatory bail applications filed under Section 438 of the Code of Criminal Procedure, 1973 [Cr.P.C.], for the offences committed under the provisions of Protection of Children from Sexual Offences Act, 2012 [POCSO Act].BackgroundNotably, 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.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.In the above circumstances, the learned Sessions Judge referred the anticipatory bail application, to the High Court under Section 395 of Cr.P.C., 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?It may further be noted that in G.O.Ms.No.1087, Home (Courts-II) Department, dated 04.12.2013, the State Government, in consultation with the High Court, designated the Fast Track Mahila Courts as Special Courts under the POCSO Act and Additional Sessions Judges presiding over the Fast Track Mahila Courts are functioning as Special Courts under the POCSO Act.The First Question before the CourtAs 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.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?Co-relation of Section 28, 31 and 33 of the POCSO Act and the CrPCA 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.Also, an Additional Sessions Judge exercising jurisdiction in the Court of Session, could preside over the Special Court.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.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.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.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.Section 31 of the POCSO Act, expressly makes the provisions as to bail and bonds applicable to the proceedings before the Special Court.Court's AnalysisThe 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.However, the Court noted, Section 31 of the POCSO Act opens with, "Save ...

[Offences Under The POCSO Act] Sessions Court Can't Entertain Anticipatory Bail Pleas; Only Special POCSO Courts Are Empowered To Do So: Madras HC [Read Order]

Sparsh Upadhyay

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