Accused entitled to a fair investigation; courts must ensure all relevant materials are considered to preserve rights under Article 21 while addressing charges under IPC and POCSO Act.

JUDGMENT :

Mitali Thakuria, J.

Heard Ms. M. Gupta, learned Senior Counsel assisted by Mr. V. Srivastava, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent No.1 and Ms. G. Goswami, learned counsel for the respondent No.2/informant.

2. This application is filed under Section 528 of the BNSS , read with Article 227 of the Constitution of India, praying for setting aside and quashing of the Investigating Report submitted by the investigating officer (IO) of All Women P. S. Case No. 05/2020 and the consequent order dated 13.09.2024 passed by the learned Special Judge, Karbi Anglong Diphu in POCSO Case No. 37/2021, registered under Sections 354 /354-A of IPC read with Section 10 of POCSO Act.

3. The brief facts, leading to filing of the present petition is that the petitioner is facing trial in POCSO Case No. 37/2021, under Sections 354 and 354A of the IPC read with Section 10 of the POCSO Act. An FIR was registered as All Women P.S. Case No. 05/2020, in which, upon the prayer of the IO, Section 354 -A of the IPC and Section 3(1)(xi)(w)(i)(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (in short SC/ST Act) were added. Subsequently, the petitioner filed a writ petition, numbered WP(C) No. 4523/2020, contending that since the caste status of respondent No. 2 and her daughter (the victim) was uncertain, the provisions of the 1989 Act should not be applied in the criminal proceeding against the petitioner. This Court, by order dated 21.10.2020 passed in WP(C) No. 4523/2020, held that until the question of validity of the ST certificates of respondent No. 2 and her daughter is decided by the competent authority, the provisions of the SC/ST Act shall not be applied in the All Women P.S. Case No. 05/2020. Thereafter, respondent No. 2 filed a writ appeal, numbered W.A. No. 190/2020, wherein the Hon’ble Appellate Court, by order dated 21.01.2021, declined to interfere with the earlier order passed in WP(C) No. 4523/2020 and directed the State Level Caste Scrutiny Committee to decide the validity of the caste certificates of respondent No. 2 and her daughter. Meanwhile, the investigation in the matter was to continue. Initially, the case was pending before the learned Sessions Judge, Kamrup (M), but upon an application filed by the petitioner, it was transferred to the court of the learned Special Judge (POCSO), Diphu, and renumbered as POCSO Case No. 37/2021.

4. The petitioner thereafter filed an application before the learned Special Judge (POCSO), Diphu, seeking a direction to the IO to submit the investigation status report of the respondent No. 2 and the victim in respect of the offence under the SC/ST Act. However, the said Court dismissed the petition on 15.12.2023, observing that the IO had already filed the part charge sheet under Sections 354 /354-A of the IPC read with Section 10 of the POCSO Act, and hence there was no scope for further investigation or for calling any additional investigation report. The case was accordingly fixed for framing of charges. Challenging the order dated 15.12.2023, the petitioner filed Criminal Petition No. 104/2