The Patna High Court has quashed an order of cognizance passed by a Special Excise Court in a case involving allegations of sexual assault on a minor, holding that offences under the Protection of Children from Sexual Offences (POCSO) Act must be tried exclusively by a designated POCSO Court. Justice Ansul ruled that the Special (Excise) Court lacked jurisdiction to deal with the POCSO offence and had also failed to apply its mind by ignoring the charge-sheet filed under Section 8 of the POCSO Act.
The case arose from an FIR alleging that the informant’s minor son had been taken away by the accused and subjected to unnatural sexual assault. The victim reiterated the allegations in his statement recorded under Section 164 of the Code of Criminal Procedure. Following investigation, the police submitted a charge-sheet under Sections 341 and 323 of the Indian Penal Code, Section 37(b)(c) of the Bihar Prohibition and Excise Act, 2016, and Section 8 of the POCSO Act. However, the Special (Excise) Court took cognizance only of the IPC and Excise Act offences, without even referring to the POCSO offence in its order.
The High Court held that an order of cognizance which remains silent on an offence specifically included in the police report reflects non-application of mind. It observed that the trial court assigned no reason whatsoever for omitting the POCSO charge, rendering the cognizance order legally unsustainable.
Addressing the issue of jurisdiction, the Court examined Section 28(2) and Section 42A of the POCSO Act alongside the Bihar Prohibition and Excise Act. It noted that while the POCSO Act expressly empowers a Special POCSO Court to try connected offences arising from the same transaction, the Bihar Prohibition and Excise Act contains no corresponding provision authorising a Special Excise Court to try offences under other enactments. The Court further observed that Section 86 of the Excise Act contemplates transfer of cases where the offence is not triable by the Special Excise Court, rather than conferring additional jurisdiction upon it.
The Court held that where a single police report discloses offences under both the POCSO Act and the Bihar Prohibition and Excise Act arising out of the same transaction, cognizance must be taken and the trial conducted by the Special Court under the POCSO Act, particularly in view of the overriding effect accorded to the POCSO Act under Section 42A.
The Court also noted that the victim was a school-going boy and that the matter had remained pending before the wrong forum for nearly seven years. Describing this as a serious procedural error, the Court quashed the cognizance order dated 30 March 2019 and directed the Special Excise Court, Aurangabad, to transmit the entire record to the Special POCSO Court within two weeks. It further directed the POCSO Court to consider the materials collected during investigation and take cognizance in accordance with law, clarifying that it would not be confined to the offences mentioned in the charge-sheet if the material disclosed additional offences.
