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CALCUTTA HIGH COURT
Shib Sadhan Sadhu, J.
Ramrahit Singh —Petitioner
versus
Dhananjoy Singh @ Motu & Anr. —Opp.Parties
C.R.R. No.2562 of 2014
Decided on 8.4.2015
Held: A conjoint reading of the aforesaid provisions of the Act clearly spells out that cognizance of an offence under the Act without any order of committal or trial can be taken by the Special Court on a complaint disposing facts, which constitute such offence, or upon a police report on such facts. Such being the position, 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 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 the Magistrate in passing the order for the first remand of an accused suspected and prosecuted for an offence under the Act, the accused being produced before him since he is empowered under Section 167 of the Cr.P.C. to do so. However, he has no jurisdiction to pass any subsequent order of remand and to entertain or to consider any application of bail filed by such accused and that can only be done by the Special Court.
Therefore, there remains no scope for harbouring even the slightest doubt to accept the legal proposition that under the POCSO Act only the Special Court has been singularly vested with all the powers to try an offence under the Act and to entertain and consider application for bail filed by the accused and to deal with any incidental matter thereto including the power of detention and remand of the accused.
Now let us assume for the sake of argument, of course by stretching our imagination beyond the horizon, that the Learned Magistrate had jurisdiction to grant bail to the accused. In that event too the Learned Magistrate was divested of such jurisdiction because the charge sheet was submitted on 24th July, 2013 i.e. on the 53rd day from the date of production of the accused which is very much within the statutory period. The order granting bail by the Learned Magistrate is absolutely perverse as he did not record any reason for granting bail in such serious and atrocious offence save and except that further detention of the accused would not help the investigation of the case. It is horrible to note the lack of legal conception demonstrated by the Learned Magistrate by recording such reason as only after completion of the investigation the charge sheet was submitted. Therefore, the impugned order granting bail to the accused is not only without jurisdiction but is also vitiated by illegality and perversity. The conduct of the Learned Additional Sessions Judge cannot also be appreciated either. The manner in which he approached and addressed the issue is highly condemnable as he missed the wood for the trees and totally misdirected himself in passing the impugned order dated 15.07.2014 which is equally perverse.
I would like to make it clear that it is not an application for cancellation of bail, as cancellation is not sought because of supervening circumstances. The present one is basically an application challenging grant of bail where the Learned Magistrate passed such order despite having no jurisdiction to entertain or consider the bail application which makes the order perverse.
Consequently both the impugned orders passed by the Learned Additional Chief Judicial Magistrate, Asansol and by the Learned Additional Sessions Judge, 2nd Court, Burdwan are set aside and the bail bond of the accused is cancelled. The accused (O.P.No.1 herein) is directed to surrender to custody forthwith failing which it shall be the duty of the Learned Additional Sessions Judge, 2nd Court, Burdwan which is designated to try the offences under the Act to take him to custody immediately. I would like to make it further clear that whatever has been stated in this judgment are only for the purpose of annulment of the order of grant of bail and its confirmation by the Learned Additional Sessions Judge and they would have no bearing whatsoever on trial. (Paras 12, 14, 18, 19 & 21)
Result: Petition allowed.
The legal document emphasizes that under the Protection of Children from Sexual Offences (POCSO) Act, only the designated Special Court has the exclusive authority to try offences under the Act, entertain applications for bail, and deal with incidental matters such as detention and remand of the accused (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
Specifically, the Act grants the Special Court the authority to take cognizance of offences based on complaints or police reports without the need for prior committal or trial orders, and such powers are not conferred upon Magistrates (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
Furthermore, the Act explicitly states that its provisions are in addition to and override any conflicting laws, reinforcing that the jurisdiction to entertain bail applications in offences under the Act rests solely with the Special Court. Magistrates, while empowered to make initial remand orders under general criminal procedure, do not have the jurisdiction to consider or pass orders related to bail or subsequent remand in cases under the Act once the offence is registered and the case is within the domain of the Special Court (!) (!) (!) (!) .
The document also clarifies that granting bail by a Magistrate in such cases, when the Special Court is empowered to do so, is illegal and can be challenged on grounds of lack of jurisdiction, illegality, and perversity. Orders passed without proper jurisdiction are considered perverse and liable to be annulled, and such orders do not have any bearing on the subsequent trial process (!) (!) (!) (!) .
In conclusion, the legal framework establishes that the powers related to trial, bail, and remand in offences under the POCSO Act are exclusively vested in the Special Court, and any orders by other courts in this regard are without jurisdiction and subject to being set aside (!) (!) (!) (!) .
JUDGMENT
Shib Sadhan Sadhu, J.—By preferring the present application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973, (hereinafter referred to as Cr.P.C. for brevity) the petitioner has prayed that the order dated 15.07.2014 passed by the Learned Additional Sessions Judge, 2nd Court, Burdwan in Criminal Misc. Case No.4027 of 2013, thereby dismissing the revision and affirming the order dated 29.07.2013 passed by the Learned Additional Chief Judicial Magistrate, Asansol in G.R. Case No.1366 of 2013 in respect of granting of bail of the O.P. No.1 be quashed and set aside.
2. The factual matrix which gave rise to the present application is as follows:
An offence was registered being No.40/13 dated 01.06.2013 under the provisions of Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act for brevity) and Section 506 of the Indian Penal Code against Dhananjoy Singh @ Motu (O.P.No.1 herein).
3. As per the F.I.R. lodged on 01.06.2013 the petitioner on 20.05.2013 went to his native place in Bihar keeping his two minor sons and the minor daughter aged about 13 years 4 months 16 days (victim girl) in his house. Taking advantage of his absence his neighbour’s son Dhananjoy Singh @ Motu trespassed into his house in the night and committed rape upon his minor daughter on 21.05.2013, 24.05.2013 and 28.05.2013 under threat to kill her and her minor brothers. In the night on 28.05.2013 around 12.30 hours the complainant returned home and saw the accused Dhananjoy Singh @ Motu fled away from his house. His daughter (victim girl) narrated the incident to the petitioner and his wife.
4. Investigation was conducted and charge sheet being No.52 of 2013 was submitted against the accused Dhananjoy Singh @ Motu under Section 6 of the POCSO Act and under Section 506 of the IPC on 24.07.2013.
5. On 29.07.2013 the Learned Additional Chief Judicial Magistrate, Asansol granted bail to the accused on the ground that charge sheet has been submitted and the accused is in custody for 58 days. Being aggrieved by such order the petitioner made an application on 27.11.2013 before the Learned Sessions Judge, Burdwan under Section 439 (2) of the Cr.P.C. praying for cancellation of bail granted to the accused. That application was registered as Misc. Case No.4027 of 2013 and was transferred to the Court of Additional Sessions Judge, 2nd Court, Burdwan which was designated to try the offences under the POCSO Act, for disposal. The accused (O.P.No.1) opposed the said application.
After hearing rival submissions, Learned Additional Sessions Judge, 2nd Court, Burdwan dismissed the said application by order dated 15.07.2014 and thereby confirmed the impugned order therein passed by the Learned Additional Chief Judicial Magistrate, Asansol on 29.07.2013. Hence, the petitioner has questioned the correctness and legality of both the said orders in the present Revisional Application.
6. Mr. Animesh Mukherjee, Learned Counsel, appearing on behalf of the petitioner, submitted that the victim was a 13 years plus old daughter of the petitioner and she was subjected to forcible rape by the accused in this case. He further submitted that as per the definition of “child” under the POCSO Act, a child means any person below the age of 18 years. Thus the victim girl was definitely a child on the date of occurrence. He submitted yet further that as per provision of POCSO Act only the designated Special Court is empowered to try the offences under the said Act and so the Learned Additional Chief Judicial Magistrate, Asansol has no jurisdiction to entertain and consider the application for bail moved by the accused in this case. Therefore, the impugned order passed by him granting bail to the accused is illegal and without jurisdiction. But the Learned Additional Sessions Judge, Burdwan completely ignored such fact and without application of judicial mind and in a very casual manner passed the impugned
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