Justices M. Sathyanarayanan and V. Bharathidasan further held that the Sessions Court cannot entertain such applications. It may be noted that a matter was placed before the Madras High Court (Madurai Bench) to decide a reference sought by the learned District Judge, Karur, under Section 395 of the Code of

The Madras High Court (Madurai Bench) on Wednesday (30th September) ruled that the Special courts, as designated under the provisions of Protection of Children from Sexual Offences Act, 2012 [POCSO Act] alone are empowered to entertain pre-arrest bail petitions in respect of offences under the POCSO Act.

The Bench of Justices M. Sathyanarayanan and V. Bharathidasan further held that the Sessions Court cannot entertain such applications.

It may be noted that a matter was placed before the Madras High Court (Madurai Bench) to decide a reference sought by the learned District Judge, Karur, under Section 395 of the Code of Criminal Procedure, 1973, with regard to the jurisdiction of the District and Sessions Court in entertaining the anticipatory bail applications filed under Section 438 of the Code of Criminal Procedure, 1973 [Cr.P.C.], for the offences committed under the provisions of Protection of Children from Sexual Offences Act, 2012 [POCSO Act].

Background

Notably, a petition under Section 438 of Cr.P.C., seeking anticipatory bail for the offences punishable under Sections 5(i) and 6 of the POCSO Act and Sections 9 and 10 of the Child Marriage Act, 2006, was filed before the Special Court, designated under the POCSO Act at Karur, and the same was returned by the Special Court stating that it has no jurisdiction to entertain the application for anticipatory bail.

Thereafter, the application was filed before the Sessions Court, that application was resisted by the learned Public Prosecutor stating that, the anticipatory bail application is not maintainable before the Sessions Court, only the Special Court has exclusive jurisdiction to entertain the same.

In the above circumstances, the learned Sessions Judge referred the anticipatory bail application, to the High Court under Section 395 of Cr.P.C., to decide the question- whether the District and Sessions Court has jurisdiction to entertain the anticipatory bail applications for the offences committed under the POCSO Act?

It may further be noted that in G.O.Ms.No.1087, Home (Courts-II) Department, dated 04.12.2013, the State Government, in consultation with the High Court, designated the Fast Track Mahila Courts as Special Courts under the POCSO Act and Additional Sessions Judges presiding over the Fast Track Mahila Courts are functioning as Special Courts under the POCSO Act.

The First Question before the Court
As we know, Section 438 of Cr.P.C., deals with grant of bail to the person apprehending arrest and the High Court and Sessions Courts are empowered to grant such pre-arrest bail.

Now, a doubt arose, after the constitution of Special Courts, whether the Special Court alone has jurisdiction to deal with the application filed under Section 438 of Cr.P.C. and the Sessions Courts are excluded from dealing with such petitions?

Co-relation of Section 28, 31 and 33 of the POCSO Act and the CrPC

A cursory reading of Section 28(1) of the POCSO Act would go to show that, a Court of Session, which is already in existence in each district, can be designated as a Special Court to try the offences under the POCSO Act.

Also, an Additional Sessions Judge exercising jurisdiction in the Court of Session, could preside over the Special Court.

Further, under Section 33(1) of the POCSO Act, a Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.

Under Section 33(9) of the POCSO Act, a Special Court shall have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, for trial before a Court of Session.

In such circumstances, the Special Court has to be treated as Court of original jurisdiction and it has all the powers of Court of the original criminal jurisdiction, as provided under the Code of Criminal Procedure, except those are specifically excluded under the relevant Act.

Also, Section 31 of the POCSO Act, makes it very clear that the provisions of the Code of Criminal Procedure including the provisions as to bail and bonds shall apply to the proceedings before a Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a Court of Sessions, and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

Section 31 of the POCSO Act, expressly makes the provisions as to bail and bonds applicable to the proceedings before the Special Court.

Court’s Analysis

The Court was of the opinion that the entire Chapter XXXIII of Cr.P.C., which deals with bail and bonds, are applicable to the proceedings before the Special Court, there cannot be any doubt that Section 438 of Cr.P.C., which deals with Anticipatory Bail, is also applicable to a Special Court.

However, the Court noted, Section 31 of the POCSO Act opens with, “Save as otherwise provided in this Act”. A careful reading of the POCSO Act would go to show that, there is no provision under the POCSO Act specifically excluding Section 438 of Cr.P.C., before the Special Court.

Hence, the Court remarked that Section 31 of the POCSO Act is clear and unambiguous that the provisions of Section 438 of Cr.P.C., are very much applicable to the Special Court.

In view of the foregoing discussions, the Court opined,

“It is clear that the Special Court designated under the POCSO Act is empowered to deal with the application filed under Section 438 of Cr.P.C., and the Sessions Court is excluded from entertaining the application filed under Section 438 of Cr.P.C” (emphasis supplied)

Court’s Final Answer to the First Question before it

“The Special Court designated under Section 28 of the POCSO Act alone is empowered to exercise power under Section 438 of Cr.P.C., in view of Section 31 of the POCSO Act, and the Sessions Court cannot entertain any application seeking pre-arrest bail in respect of offences under the POCSO Act”, the Court concluded.

The Second Question before the Court
Whether the Special Court is empowered to deal with the anticipatory bail application relating to the offences under the POCSO Act, even before the registration of a First Information Report, or lodging a complaint before the Court concerned, on an the apprehension of the arrest?

Court’s Analysis

The Court clarified that the Special Court is exclusively empowered to deal with the offences under the POCSO Act and thereby, the normal Criminal Courts constituted under Section 6 of Cr.P.C., are excluded from dealing with the offences under the POCSO Act.

Further, the Court opined,

“When the Special Court is exercising the exclusive jurisdiction to deal with the offences under the POCSO Act, the same Court also has the power to deal with the application under Section 438 of Cr.P.C., even before registering the First Information Report.” (emphasis supplied)

The Court was of the considered view that even before registering an FIR, the Special Court alone has the power to deal with the application under Section 438 of Cr.P.C., in relation to the offence under the POCSO Act.

Court’s Final Answer to the Second Question before it

“Even in cases where pre-arrest bail is sought before registering the First Information Report, only the Special Court designated under the POCSO Act can entertain the application and the regular Sessions Court cannot exercise its power under Section 438 of Cr.P.C”, the Court concluded.

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