HIGH COURT OF JAMMU, KASHMIR AND LADAKH

AT JAMMU

Reserved on : 28.04.2022

Pronounced on: 02.06.2022

WP (C) No. 947/2022(O&M)

Naik Bibhu Prasad

…..Appellant(s)/Petitioner(s)

Through: Mr. D. S. Balouria, Advocate

vs

Union of India and others

.…. Respondent(s)

Through: Mr. Vishal Sharma, ASGI

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGEMENT

1.

With the consent of the learned counsel for the parties, the present petition

was taken up for final consideration.

2.

The petitioner has filed the present petition assailing the order dated

22.04.2022 whereby a plea regarding jurisdiction of the Summary General

Court Martial (SGCM) to conduct trial of offences under Protection of

Children from Sexual Offences Act, 2012, has been rejected by the

respondent No. 5.

3.

The only issue raised by the petitioner in the present petition is that the

Summary General Court Martial has no jurisdiction to try the offences under

the Protection of Children from Sexual Offences Act, 2012 (for short

POCSO Act) as the POCSO Act is the special enactment that provides for

the constitution of special courts for the trial of offences under the POCSO

2 WP (C) No. 947/2022

Act and as the SGCM is not a special court, so the petitioner cannot be tried

under the POCSO Act in SGCM.

4.

Response stands filed by the respondents, in which it has been stated that the

petitioner has wrongly invoked the writ jurisdiction of this Court as after the

rejection of the plea with regard to the jurisdiction, the petitioner should have

filed the petition under section 164 (1) before the confirming authority.

Thereafter, if not satisfied with the decision, then the petitioner has an option

to file a petition under section 164 (2) before the Chief of Army Staff or

before the Armed Forces Tribunal. It is also stated that in OA-79 of 2015,

Col. Hardeep Singh Bindra vs Union of India and others, it was held by

Armed Forces Tribunal, Mumbai that the SGCM has jurisdiction to try the

offences under the POCSO Act. In criminal appeal No. 140/2016, the

Supreme Court has dismissed the said appeal against the order of the Armed

Forces Tribunal, Mumbai. In the response, factual aspects have also been

narrated those may not be relevant for the consideration of the present writ

petition. It is also stated that the SGCM has jurisdiction to try the case

against the accused who is charged with two charges under section 69 of the

Army Act. In the response, reference has also been made to the relevant

sections of the Army Act. Precisely, it is stand of the respondents that the

SGCM has jurisdiction to try the offence under the POCSO Act.

5.

Mr. D. S. Billouria, learned counsel for the petitioner vehemently argued that

as per the mandate of section 28 of the POCSO Act, only the special court

has jurisdiction to try the offences under the POCSO Act and further that the

POCSO Act, 2012 has an overriding effect over all other Acts including the

Army Act.

3 WP (C) No. 947/2022

6.

Mr. Vishal Sharma, learned ASGI has vehemently argued that the petitioner

has been charged for commission of a civil offence under section 69 of the

Army Act as the petitioner has acted contrary to section 11(i) of Protection

of Children from Sexual Offence Act, as such, the SGCM has jurisdiction to

try the offences under the POCSO Act as well.

7.

Heard and perused the record.

8.

The only issue that arises for consideration of this Court is whether the

SGCM has jurisdiction to try the offences under the POCSO Act, 2012.

9.

Before adverting to the contention raised by the parties, it is apt to take note

of the purpose for which the Act wa