The Special Court under the POCSO Act has exclusive jurisdiction to try offences under both the SC-ST Act of 1989 and the POCSO Act if arising from the same incident.

ORDER :

Sanjay K. Agrawal, J.

1. The short question that emanates for consideration in this writ petition is,

"If an accused has been charged for offence punishable under the penal provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the SC-ST Act of 1989') and simultaneously also charged under the penal provisions of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act') at the same trial, whether, in that situation, the special court constituted under the SC-ST Act of 1989 or the special court constituted under the POCSO Act would have jurisdiction to try the offences punishable under both the Acts?"

2. The petitioner/accused herein has been charge-sheeted for the offences punishable under Section 376 of the IPC, Section 6 of the POCSO Act and also Section 3(2)(v) of the SC-ST Act of 1989 and he is standing trial for the aforesaid offences in the Court of Special Judge (Atrocities) constituted under the SC-ST Act of 1989, Korba in Special Case (SC/ST) No. 35/2019, as charge-sheet has been filed on 8-7-2019 and charges have been framed against him by that Court on 4-10-2019. The victim was also examined on 8-1-2020, but thereafter, the case could not be heard further on account of COVID-19 situation followed by closure of courts.

3. Now, the petitioner/accused has filed this petition stating inter alia that by virtue of Section 28(1) of the POCSO Act, Special Court constituted under the said Act would have jurisdiction to try the offences under the POCSO Act and by virtue of the provision contained in Section 28(2) of the POCSO Act, the Special Court (POCSO) shall have jurisdiction to try the offences other than the offences referred to in subsection (1), with which the accused may, under the Code of Criminal Procedure, 1973 (for short, 'the Code of 1973'), be charged at the same trial, as by virtue of Section 31 of the POCSO Act, the Code of 1973 is applicable to proceeding before the Special Court (POCSO) and therefore by virtue of Section 26 of the Code of 1973 read with Section 28(2) of the POCSO Act, the offences under the SC-ST Act of 1989 would also be tried by special court constituted under the POSCO Act, as such, appropriate order/direction be issued to the Special Court under the SC-ST Act of 1989 directing transfer of Special Case (SC/ST) No. 35/2019 to the special court constituted under the POCSO Act for trial and disposal in accordance with law.

4. Ms. Aditi Singhvi, learned counsel appearing for the petitioner/accused, would submit that since the petitioner/accused has been charged for the offences which are said to have been committed under the SC-ST Act of 1989 and POCSO Act, both, therefore, by virtue of the provisions contained in Section 28(2) of the POCSO Act, the special court under the POCSO Act would have exclusive jurisdiction to try the offences even under the SC-ST Act of 1989, otherwise, the trial would be void by virtue of the provision contained in Section 461(l) of the Code of 1973 and therefore appropriate direction be issued to transfer the case from the special court under the SC-ST Act of 1989 to the special court under the POCSO Act for hearing and disposal in accordance with law. She would further submit that the POCSO Act is the later Act which prevails over the former Act by virtue of non obstante clause Section 42A contained in the POCSO Act with effect from 3-2-2013. She relied upon the decision of the Supreme Court in the matter of Sharat Babu Digumarti v. Govt. (NCT of Delhi) (2017) 2 SCC 18 to buttress her submission.

5. Mr. Sunil Otwani, learned Additional Advocate General appearing for the State/respondents, would submit that the special court under the POCSO Act would have jurisdiction to try the offences even under the SC-ST Act of 1989 in view of the provision contained in Section 28(2) of the POCSO Act.

6. Mr. Anurag Dayal Shrivastava, learned amicus curiae, would submit as under:-

1. That, in th