ORDER :

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 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 23rd 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.

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 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 th