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2013 DIGILAW 2108 (RAJ)

Ramu Ram v. State of Rajasthan

2013-11-26

SANDEEP MEHTA

body2013
Hon'ble MEHTA, J.—The instant misc. petition has been filed by the petitioner-complainant against the order dated 6.4.2013 passed by the learned Additional Sessions judge, Nagaur in Bail Application No. 104/2013 whereby, the learned Additional Sessions Judge accepted the bail application filed by the respondent No.2 in connection with FIR No.15/2013 registered at the Police Station, Khinwsar for the offences under Sections 363, 376/120-B, 341, 342, 447, 451, 323 and 143 IPC to which the offences under Section 3/4 of the POCSO Act were added subsequently. 2. Shri Mukesh Mehariya learned counsel appearing for the petitioner urged that amongst the offences for which the case was being investigated, the offence under Sections 3/4 of the Protection of Children from Sexual Offences Act, 2012 was also included. He submitted that the victim being a 13 years old child of the petitioner as subjected to forcible rape by the accused in this case. Her date of birth is 27.7.2000. Learned counsel submitted that in view of the fact that the case was being investigated for the offence under the PSCSO Act, the learned additional Sessions Judge had no jurisdiction to entertain the bail application. Learned counsel submitted that the preamble of the POCSO Act mentions that the act was enacted in order to protect children from offences of sexual assault, sexual harassment and pornography and provides for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Learned counsel submitted that as per Chapter VII of the POCSO Act, which came into force on 19.6.2012, the State Government has been put under a mandate to constitute Special Courts for the trial of the cases covered under this Act. Learned counsel submitted that after the act came into force, any Court other than the Special Court constituted under the POCSO Act as divested of the jurisdiction to deal with any application in relation to such case. He submitted that the Police presented the accused for remand in the Court of the learned Chief Judicial Magistrate, Nagaur. The learned Chief Judicial Magistrate, Nagaur rejected the bail application filed by the accused on 29.3.2013 though he had no jurisdiction to entertain such bail application. He submitted that the Police presented the accused for remand in the Court of the learned Chief Judicial Magistrate, Nagaur. The learned Chief Judicial Magistrate, Nagaur rejected the bail application filed by the accused on 29.3.2013 though he had no jurisdiction to entertain such bail application. Thereafter, the accused challenged the rejection of his bail application by the Chief Judicial Magistrate, Nagaur by filing an application under Section 439 Cr.P.C. in the court of the learned Additional Sessions Judge, Nagaur, who accepted the bail application filed by the accused. Learned counsel submitted that only a Sessions Court can be designated to be a Special Court as per Section 28 of the Act. He submitted that in view of this undisputed and unchallengeable legal scenario, learned Additional Sessions Judge, Nagaur acted absolutely beyond his jurisdiction in entertaining and accepting the bail application filed by the accused in this case. Learned counsel, therefore, prayed that the misc. petition be accepted and the order dated 6.4.2013 passed by the learned Additional Sessions Judge, Nagaur whereby, the bail application filed by the accused was allowed, should be quashed. 3. A notice was issued to the respondent No.2 accused, who is presently reported to be in custody in relation to another case of sexual offence. However, nobody put in appearance on his behalf despite service. 4. This Court issued notice to the Registrar General, Rajasthan High Court for answering the query as to whether any Special Court had been constituted for the Merta Judgeship on the relevant date. 5. Ms. Falgun Buch appearing for Shri V.K. Mathur learned counsel for the Registrar General, Rajasthan High Court, submitted the notification No.u-¼5½U;k;/2012 issued by the Law Department of the State Govt. on 28.1.2013 as per which, all Sessions Judges of the various Judgeships in Rajasthan have been designated to be the Special Courts under the POCSO Act. Thus, the situation in this regard is crystallized that the learned Sessions Judge, Merta was designated as the Special Judge under the POCSO Act on the date on which the order impugned was passed. The learned Chief Judicial Magistrate, Nagaur whilst deciding the bail application filed by the accused specifically mentioned the offence under Sec. 3/4 of the POCSO Act against the offences applicable in the case in the subject matter of the order dated 29.3.2013. 6. The learned Chief Judicial Magistrate, Nagaur whilst deciding the bail application filed by the accused specifically mentioned the offence under Sec. 3/4 of the POCSO Act against the offences applicable in the case in the subject matter of the order dated 29.3.2013. 6. The learned Additional Sessions Judge, Nagaur whilst entertaining the bail application filed by the accused completely ignored the fact that the offence under the POCSO Act had been applied in the case. The factual report dated 23.3.2013 submitted by the Dy. S.P. SC/ST Cell, Nagaur to the Chief Judicial Magistrate, Nagaur is available on the record of the case as per which, the offence under Section 3/4 of the POCSO Act had been added to the case. The factual report also mentions that the date of birth of the victim is 27.7.2000. As per the definition of "Chief" under the POCSO Act, a child means any person below the age of 18 years. Thus, the was definitely child on the date of the occurrence. 7. In view of the aforesaid discussion, this Court is of the opinion that the learned Chief Judicial Magistrate, Nagaur and the learned Additional Sessions Judge, Nagaur were having no jurisdiction to entertain a bail application in this case. The Police had already added the offence under the POCSO Act to the case as is apparent from the factual report dated 23.3.2013 referred to above. Thus, it is the only Special Court under the POCSO Act i.e. the learned Sessions Judge, Merta, who could have entertained a bail application filed by the accused in this case. 8. As a result of the aforesaid discussion this Court is of the opinion the misc. petition has to be accepted and is hereby allowed. The order dated 6.4.2013 passed by the learned Additional Sessions Judge, Nagaur amounts to a gross abuse of the process of Court and is also without jurisdiction. As such, the same is quashed. The accused is already in custody. He shall not be entitled to avail any benefit under the order dated 6.4.2013. 9. A copy of this order be forwarded to the Jailor, Sub-Jail, Merta whereby, the respondent is lodged.