Research › Search › Judgment

Kerala High Court · body

2024 DIGILAW 1289 (KER)

RICHARD THOMAS S/O THOMAS v. STATE OF KERALA

2024-10-10

A.BADHARUDEEN

body2024
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. 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: (1) what is the legal mandate of Section 84 of the Disabilities Act, 2016? (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: “For the purpose of providing 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: Whoever 92 - Punishment - for offences of atrocities: (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) voluntarily injures, damages or interferes with the use of any limb or sense or any supporting device of a person with disability. (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) voluntarily injures, damages or interferes with the use of any limb or sense or any supporting device of a person with disability. (f) performs, conducts or directs any medical procedure to be performed on a woman with disability which leads to or is likely to lead to termination of pregnancy without her express consent except in cases where medical procedure for termination of pregnancy is done in severe cases of disability and with the opinion of a registered medical practitioner and also with the consent of the guardian of the woman with disability, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. 9. On reading Section 84 of the Disabilities Act, 2016, the legal mandate is that in order to ensure speedy trial of cases involving persons with disabilities, Special Court shall be notified in each district to try the offence/s under the Disabilities Act, 2016. 10. Section 92 in Chapter 16 of the Disabilities Act, 2016 deals with offences and penalties and the maximum punishment provided is five years. Thus, no doubt, when offences under the Disabilities Act, 2016 covered by Chapter 16 are committed, the offences shall be tried by the Special Court, constituted under Section 84 of the Disabilities Act, 2016. 11. In the case at hand, none of the offences under the Disabilities Act, 2016 are either alleged or charge framed for the same. In this matter, charge already framed for the offences punishable under Sections 366 and 376(2) (l) and (n) of IPC and trial is at the fag end. Thus the court trying the said offences at present is the court having jurisdiction to try offences punishable under Sections 366 and 376(2)(l) and (n) of IPC. Therefore, Annexure 1 order is to be justified and the contention raised by the petitioner in the present case that the same to be tried by the Special Court under the Disabilities Act, 2016 is unsustainable. 12. Holding so, this petition stands dismissed. 13. Registry is directed to forward a copy of this order to the trial court for information and further steps.