Rakesh M.R v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944 CRL.MC NO. 5044 OF 2021** **AGAINST CRL.M.P.NO.152/2021 IN SC NO.686/2019 OF THE FAST TRACK SPECIAL COURT, PALAKKAD CRIME NO.153/2019 OF Hemambika Nagar Police Station, Palakkad** ## **PETITIONER/PETITIONER:** RAKESH M.R AGED 24 YEARS S/O. RAMACHANDRAN, H.NO.20/238, MAHALI HOUSE, MUTTIKULANGARA, PUTHUPPARIYARAM, PALAKKAD. BY ADV V.A.JOHNSON (VARIKKAPPALLIL) ## **RESPONDENT/RESPONDENT & COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. BY ADV.SRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.02.2022, THE COURT ON 07.04.2022 PASSED THE FOLLOWING: Crl.M.C.No.5044/2021 ## -:2:- O R D E R Dated this the 7[th ] day of April, 2022 This Crl.M.C has been filed challenging Annexure A order passed by the Fast Track Special Court, Palakkad (for short, ‘the court below’) dismissing an application filed u/s 228(1)(a) of the Code of Criminal Procedure (for short, Cr.P.C'). 2. The petitioner is the accused. A crime was registered by the Hemambika Nagar Police Station, Palakkad as Crime No.153/2019 against the petitioner alleging that he has committed offences punishable under Sections 447, 354C, 509 of IPC and S.119(1)(b) of the Kerala Police Act and S.12 r/w 11(iv) of the Protection of Children from Sexual Offences Act (for short, the POCSO Act). 3. The allegation against the petitioner is that, on 17/4/2019 at 10.00 p.m, he trespassed into the property of CW2, peeped through the hole on the southern wall of the bathroom of the residential house of CW2 while CW1, a minor girl, was taking bath and he took visual images of CW1 in his mobile phone and Crl.M.C.No.5044/2021 -:3:- thus committed the offences. 4. On completion of the investigation, the final report was filed at the court below. After the appearance of the accused, the court below heard both sides u/s 227 of Cr.P.C. and framed charge against the petitioner for the offences punishable under Sections 447, 354C, 509 of IPC and S.119(1)(b) of the Kerala Police Act. The court below found that the offence u/s 12 r/w 11(iv) of the POCSO Act was not attracted and no charge was framed against the petitioner for the said offence. Accordingly, as per the order dated 23[rd] July, 2021, the court below discharged the petitioner for the offence punishable u/s 12 r/w 11(iv) of the POCSO Act. 5. Thereafter the petitioner filed Crl.M.P.No.152/2021 at the court below invoking S.228(1)(a) of Cr.P.C to transfer the case to the Judicial First Class Magistrate Court- III Palakkad or to the Chief Judicial Magistrate Court, Palakkad. According to the petitioner, the charge framed against him was for offences triable by Magistrate and, hence, the court below has no jurisdiction to try the case. The court below after hearing both sides dismissed the said petition as per Annexure A. The said order is under challenge in this Crl.M.C. Crl.M.C.No.5044/2021 -:4:- 6. I have heard Sri.Johnson Varikkappallil, the learned counsel for the petitioner and Sri.P.Narayanan, the learned Additional Public Prosecutor for the State. 7. The learned counsel for the petitioner submitted that the offences under Sections 447, 354C, 509 of IPC and S.119(1) (b) of the Kerala Police Act are triable by Magistrate and, hence, the court below transgressed its jurisdiction in proceeding with the trial. The learned counsel further submitted that the Special Court constituted u/s 28 of the POCSO Act is for the trial of such offences and matters connected thereto or incidental thereto only and this case does not include any offence under the POCSO Act to attract the jurisdiction of the Special Court. On the other hand, the learned Additional Public Prosecutor submitted that the court below is a Special Court for the trial of offences punishable under the provisions of the POCSO Act, and the said court can exercise the jurisdiction of the Sessions Court and the Sessions Court has every power to try all the offences under the Indian Penal Code, and there is no jurisdictional irregularity or impropriety in trying the offences under the Indian Penal Code. 8. S.26 of Cr.P.C provides that subject to the other Crl.M.C.No.5044/2021 ## -:5:- provisions of the Code, the Court of Session may try any offence under the Indian Penal Code. S.228 of Cr.P.C which deals with framing of charge, reads as follows: _“_ _**228. Framing of charge** – (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which—_ _(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;_ _(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused._ _(2) Where the Judge frames any charge under clause (b) of Sub-Section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."_ On a perusal of the provision extracted above, it is clear that once the case is committed to the Court of Session, it indeed becomes clothed with the jurisdiction to try it, and the mere fact that the offence disclosed is not one exclusively triable by the Crl.M.C.No.5044/2021 -:6:- Court of Session, does not divest it of that jurisdiction. The Sessions Court has the discretion to transfer the case for trial to the Chief Judicial Magistrate Court or to try the case by itself. The same issue was considered by the Apex Court in _**Sudhir v. State of Madhya Pradesh**_ [(2001) 2 SCC 688] and it was held that the Sessions Court has the power to try all offences under the IPC notwithstanding the fact that it is triable by a Magistrate Court. It was observed that when a case involving offence not exclusively triable by such court is committed to the Court of Session, the Sessions Judge has to exercise discretion regarding the case which he has to continue for trial in his court and the case which he has to transfer to the CJM. 9. Chapter VII of the POCSO Act deals with Special Courts. As per sub clause (1) of S.28, 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. The court below is the designated Special Court u/s 28 for the trial of offences punishable under the POCSO Act. The High Court of Kerala on 9[th] February 2021 in the exercise of the Crl.M.C.No.5044/2021 -:7:- powers conferred by S.9(3) of the Cr.P.C issued a notification empowering the court below to exercise the jurisdiction of the Court of Session. Sub clause (2) of S.28 empowers the Special Court to try other offences along with the offences provided under the POCSO Act. Sub section (9) of S.33 of the POCSO Act specifically says that a Special Court shall, for the purpose of the trial of any offence under the POCSO 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 for trial before a Court of Session. Being a Court of Session, the court below has every power to try the offences under the Indian Penal Code as well. For the reasons stated above, I am of the view that the challenge against Annexure A order must fail. Accordingly Crl.M.C stands dismissed. Sd/- ## **DR. KAUSER EDAPPAGATH** ## **JUDGE** **Rp** Crl.M.C.No.5044/2021 -:8:- ## **APPENDIX OF CRL.MC 5044/2021** PETITIONER ANNEXURES Annexure A CERTIFIED COPY OF THE ORDER DATED 11.8.2021 IN CRL.M.P.NO.152/2021 IN S.C.NO.686/2019 PASSED BY THE COURT OF FAST TRACK SPECIAL COURT, PALAKKAD.