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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
RICHARD THOMAS S/O THOMAS – Petitioner
Versus
STATE OF KERALA – Respondent
Crl. M.C. No. 8387 of 2024
Decided On : 10-10-2024
Jurisdiction - POCSO Act - Disabilities Act, 2016 - Sections 84, 92 - The court interpreted the jurisdictional provisions of the Disabilities Act, 2016, concluding that the trial court had the authority to hear the case as the alleged offences did not fall under the Disabilities Act.
Fact of the Case:
The accused challenged the jurisdiction of the trial court under the POCSO Act, arguing that the case should be tried under the Disabilities Act due to the victim's disability. The trial court had already commenced proceedings.
Finding of the Court:
The court found that the offences charged were under the IPC and not under the Disabilities Act, thus affirming the trial court's jurisdiction to proceed with the case.
Issues: Whether the trial court had jurisdiction to try the case under the POCSO Act or if it should be tried under the Disabilities Act.
Ratio Decidendi: The court held that since the charges were under the IPC and not under the Disabilities Act, the trial court had the proper jurisdiction to continue the trial.
Result: The petition was dismissed.
ORDER :
1. The accused in S.C. No. 370/2021 on the files of the Special Court for the trial of offences under the Protection of Children from Sexual Offences Act (for short ‘POCSO Act’ hereinafter), Kottayam, has filed this Crl. M.C. under Section 528 of the Bharatiya Nagarik Suraksha Sanhita challenging Annexure 1, viz. Order in Crl. M.P. No. 339/2024 dated 04.10.2022.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the order impugned and the relevant provisions under the Rights of Persons with Disabilities Act, 2016 (for short ‘Disabilities Act, 2016’ hereinafter).
3. While impeaching the veracity of Annexure 1 order, the learned counsel for the petitioner submitted that the victim in this case is a differently abled person with 50% disability. Therefore, in view of the mandate under Section 84 of the Disabilities Act, 2016, the offences in this crime shall be tried by a Special Court constituted under Section 84 of the Disabilities Act, 2016 and the Special Court under the POCSO Act has no jurisdiction to try the case. It is pointed out that though this contention was raised before the trial court by filing Crl. M.P. No. 339/2024, the same was negatived by the trial court without addressing the legal position properly. Therefore, the order would require interference, is the submission of the learned counsel for the petitioner.
4. Per contra, the learned Public Prosecutor would submit that in this matter, the trial already started and PW1 to PW12 were examined. Therefore, question of jurisdiction raised after completion of trial could not yield. He also submitted that, even otherwise, none of the offences under the Disabilities Act, 2016 are alleged in this case, so as to try the matter by the Special Court constituted under Section 84 of the Disabilities Act, 2016. He also pointed out that Section 92 of the Disabilities Act, 2016 deals with lesser offences warranting imprisonment for a term which shall not be less than six months but which may extend to five years and with fine exclusively triable by the Special Court under the Disabilities Act, 2016. Here the offences alleged are offences involving sentence more than five years and the present court is the competent court to try the same.
5. On perusal of the order and the prosecution allegations, the prosecution case is that the accused pretended love towards the victim, who is intellectually disabled, and made her to believe that the accused would marry her. Thereafter, she was forcefully taken to a two-storeyed house owned by another and subjected her to repeated rape. On this premise, prosecution alleges commission of offences punishable under Sections 366 and 376(2)(l) and (n) of the Indian Penal Code (IPC for short hereinafter).
6. The questions that arises for consideration are:
(2) what are the offences to be tried by the Special Court constituted under Section 84 of the Disabilities Act, 2016?
7. Section 84 of the Disabilities Act, 2016 provides as under:
84. Special speedy Court trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification, specify for each district, a Court of Session to be a Special Court to try the offences under this Act.”
8. Section 92 of the Disabilities Act, 2016 reads as under:
(a) intentionally insults or intimidates with intent to humiliate a person with disability in any place within public view.
(b) assaults or uses force to any person with disability with intent to dishonour him or outrage the modesty of a woman with disability.
(c) having the actual charge or control over a person with disability voluntarily or knowingly denies food or fluids to him or her.
(d) being in a position to dominate the will of a child or woman with disability and uses that position to exploit her sexually.
(e) volun
AI
The court established that jurisdiction under the Disabilities Act is limited to specific offences, and the trial court's jurisdiction under the IPC was valid.
The Special Court under the Scheduled Castes and Scheduled Tribes Act cannot take direct cognizance of offences under the IPC without prior committal by a Magistrate, aligning with the hierarchy of c....
The court affirmed that under Section 86(4) of the JJ Act, all relevant offences must be tried by the Children's Court, invalidating prior proceedings in the Magistrate's Court.
:• Testimony of a prosecutrix with a disability, or of a disabled witness for that matter, cannot be considered weak or inferior, only because such an individual interacts with the world in a differe....
The court upheld the need for further examination of evidence under Section 311 Cr.P.C to ensure proper understanding of the victim's evidence.
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