Simon S/o Multani vs The State through Market Police Station

This petition is filed by the petitioner-accused No.1 under Section 482 of Cr.P.C. for quashing the proceedings in Spl.C.No.66/2016 (Crime No.27/2012) pending on the file of Additional District and Sessions Judge, Bidar, for having taken the cognizance for the offence under POCSO Act.

The complainant has filed a complaint on 10.02.2012 alleging that her daughter on 03.02.2012 at about 8.45 a.m. went to grocery Shop near Kavitha School, thereafter she did not return, thereafter they made enquiry with the relatives and friends then on 04.02.2012 they made enquries in their in-laws house and also informed that her daughter has not returned. On 05.02.2012 when they made enquiries in the land in which they are staying at that time one Appu informed her that the accused has taken her daughter on a motorbike on 03.02.2012 at about 9.30 to 9:30 a.m. and he has seen the same. Then thereafter they went to the house of accused and enquired with his father and the mother. There they told that her daughter and their son have gone together and they do not know where exactly they have gone, then thereafter on 06.02.2012 they came to know that the daughter of complainant has been kidnapped and has been kept in a house. On the basis of complaint a case has been registered under Section 363, 109 read with Section 149 of IPC and after investigation police have filed the charge-sheet against the petitioner in C.C.No.988/2012. The learned Magistrate took the cognizance of the alleged offence and when the matter was posted for the evidence of the victim who came to be examined as PW5, in her examination in chief she deposed that the accused has sexually assaulted her at Bengaluru and by recording the said evidence, as the victim was aged about 14 years the POCSO Act is applicable, as such, the case was transferred to the said Court. Thereafter, the Court below has taken the cognizance. Being aggrieved by the same, he is before this Court.

The main contention of the learned counsel for the petitioner is that the POCSO Act came into force on 19th June,2012 and the alleged act of the kidnap and sexual assault has taken place in the month of February. As such, the act cannot be given retrospective effect the cognizance cannot be taken. He has further contended that the Court below has not followed the procedure as laid down under Section 209 of Cr.P.C and as such he prayed for quashing this proceedings.

The learned High Government Pleader has vehemently argued and contended that so far as the procedure laid down under Section 209 of Cr.P.C it is only an irregularity and it is not an illegality. He further contended that if the Court after taking the cognizance on the basis of the evidence if the case has been transferred then it is a question of fact which the court has to decide whether the alleged offence has taken place or not by recording the evidence of PW5. At this juncture, this Court cannot interfere and quash the proceedings.

I have gone through the copy of the complaint and the submissions made by both counsels. It is an admitted fact that the petitioner-accused No.1 abducted the daughter of the complainant and on the basis of that a complaint was lodged and thereafter the police investigated the case and charge-sheet has been file in C.C.No.988/2012 for the offences under Sections 363 and 343 of IPC. It is also not in dispute that while recording the evidence of PW5 she deposed in examination-in-chief that the petitioner has forcibly committed sexual assault on her at Bengaluru and after recording the same the Court below has transferred the case to the Special Court, which is the Court triable of the cases under POCSO Act.

Whether the alleged offence has taken place or not is a matter, which has to be adjudicated only at the time of trial. Be that as it may, so far as Section 209 of Cr.P.C is concerned, it indicates that how a case has to be committed to the Court of Sessions when offence is triable exclusively by such Court. In the instant case on the basis of the deposition of P.W.5 that it is the forcible sexual assault. The case has been transferred to such Court, the said offence comes under Section 376 of IPC or under the POCSO Act is a matter which has to be considered by that Court. No doubt, the POCSO Act came into force on 19th June 2012, but anyhow the evidence of PW5 it indicates that the accused- petitioner has forcibly committed sexual assault on her, is an aspect which has to be adjudicated by the Court, if it is not amounting to an offence in POCSO Act, but it is an offence under Section 376 of IPC which is also triable by Court of Sessions. In that light, if a case has been committed or transferred to that Court. The accused petitioner is at liberty to urge all those points which he has urged before this Court. So far as Section 209 of Cr.P.C is concerned it is only an irregularity, which has been committed by the Court, which can be rectified by the Court at any time. It is well established principles of law that the principles of the procedure are hand made by justice. In that light, so if any irregularity has been committed. The copies of the charge- sheet material and other material i.e., the matter which the accused-petitioner wants can be supply by the Court below and proceed afresh from the stage from where that the accused has been transferred to the Court of Sessions. Leave apart this, when under what circumstances the Court has to exercise its power under Section 482 of Cr.P.C has been elaborately discussed in the case of STATE OF ORISSA AND ANOTHER vs. SURAJ KUMAR reported in 2005 (13) SC

Keeping in view the ratio laid down in the above decision and taking into consideration the fact and circumstances of the case, I am of the considered view that the accused-petitioner has not made-out any good grounds so as to quash the proceedings. As such, petition liable to be dismissed with the above observations.

Accordingly, the petition is dismissed.