Section 28(2) POCSO Act- Kerala High Court Directs Transfer Of A SC/ST Act Case From Sessions Court To POCSO Court For Joint Trial
The Kerala High Court has directed the transfer of a case under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 i.e. (SC/ST Act) pending before a Sessions Court to the POCSO (Protection of Children from Sexual Offences) Court on the ground that these cases are closely connected.
A plea was filed seeking joint trial of a case pending before the District and Sessions Court, Kottayam and a case pending before the Fast Track Special Court (POCSO), Erattupetta.
A Single Bench of Justice Gopinath P. ordered, “Having regard to the law laid down in MS.P xxx’s case (supra) and also having regard to the provisions of Section 28(2) of the POCSO Act, I am of the view that S.C.No.555 of 2022 on the file of the District and Sessions Court, Kottayam should be transferred and tried before the Fast Track Special Court (POCSO), Erattupetta.”
Advocate Niharika Hema Raj represented the petitioner/accused while Senior Public Prosecutor Vipin Narayan represented the respondent/State.
Factual Background -
Two cases arose from the same crime which was registered on the allegation that the accused had trespassed into the house wherein the complainant resided with her family and proceeded to grab her thereby outraging her modesty. It was also alleged that the accused ran away when the complainant and her sister raised hue and cry and that when the father of the complainant came to know about the same, he followed the accused after which the accused struck and injured him with an axe carried by him. It was further alleged that he returned to the house of the complainant and threatened them with an iron road by walking around the house.
Following investigation into the crime, split charges were filed and the cases were numbered separately. In S.C.No.564 of 2022 pending before the Fast Track Special Court (POCSO), Erattupetta, the allegation was that the accused who was a member of RCSC community following Christianity, knowing that his minor neighbour was a member of the SC Velan Community, trespassed into the house with an intention to sexually assault her. The offences alleged were under Sections 354, 354A, 451, 506(ii) of the IPC and Section 3(2)(va) of the SC/ST (POA) Act.
The High Court in the above regard observed, “It is clear from a reading of the final report in S.C.No.555 of 2022 that the incident which led to filing of the charges occurred within a gap of half an hour and at the same place. It is also seen that the mahazar etc. are the same. It is seen that only the Investigating Officer is different and the several of the witnesses cited are common.”
The Court, therefore, directed that the case pending before the Sessions Court shall be transferred to the POCSO Court. It further said that the Court shall also consider whether the cases can be tried jointly or one after the other, in accordance with the law.
Accordingly, the High Court allowed the plea.
Cause Title- Tomy K.M. v. State of Kerala & Anr. (Neutral Citation: 2023:KER:65041)
