Case Transferred To POCSO Court After 8-Yrs Trial: Gujarat HC Says Police, Prosecution & Trial Court Prima Facie Failed In Discharging Duty

The Gujarat High Court recently lamented the failure on part of the Police, the prosecution and the trial court in an assault case, which came to be transferred to a POCSO Court, eight years after commencement of trial.

In his December 24 order, Justice Sandeep Bhatt observed that the victim had "categorically" deposed in her testimony in 2018 that at the time of incident, she was 15 years old. But despite this no action was taken by the Assistant Public Prosecutor nor the Presiding Officer who was conducting the trial.

It was only only after eight years when the accused (Petitioners herein) filed Exhibit 99 for transfer of case to POCSO court, that the Magistrate Court amended the charges to include provisions of POCSO Act.

“Prima facie, it is very strange and also shameful on the part of the entire law enforcing and law adjudicating machinery that after eight years when the trial is proceeded substantially before the learned Judicial Magistrate First Class (J.M.F.C.) under the provisions of Sections 354, 504, 427 and 114 of the Indian Penal Code, the application at Exh.99 is filed to transfer the case to the POCSO Court as offences are made out under the provisions of the Protection of Children from Sexual Offences Act, as the age of the victim at the time of incident was 15 years,” the Court observed.

The bench was hearing a quashing petition filed by the accused, booked under Sections 354 (Assault or criminal force on a woman with intent to outrage her modesty), 504 (Intentional insult with intent to provoke breach of peace), Section 427 (Mischief causing damage worth ₹50 or more), Section 114 (Abettor present when an offense is committed is treated as if they committed the offense themselves). Subsequently Sections 11 (sexual harassment of a child, including actions like making sexual remarks, gestures, or showing pornography), Sections 12 (punishment for sexual harassment of a child, with imprisonment up to 3 years and a fine) of POCSO Act were added.

On December 18, Petitioners' Counsel had contended that the application to add the offences under POCSO was filed after 8 years of delay whereas it should have been registered at the time of FIR or Chargesheet. It was argued that such delay caused prejudice to the rights of the petitioners.

The Court then directed the APP to seek instructions and explanation from the concerned Investigating Officer regarding the lapses and sought for explanation from the Trial Court regarding the prolonged trial that went on for 8 years and delay in consideration of Exhibit 99. The Court further directed the Trial Court to submit a detailed report by December 24, 2024.

On perusing the reports it said, “It is more important that when the investigation is carried out, this aspect is nowhere referred that at the time of incident the girl was aged 15 years. Prima facie, it transpires that the investigating Agency as well as prosecution and to some extent, the Presiding Officer have failed in discharging their duties in appropriate manner. It can be said that there is no proper application of mind at any level, either by the Investigating Agency or by the prosecution, thereby, the precious time of the investigating agency as well as the concerned Court is wasted from 2016 to 2024, that in fact the trial is at the far end before the learned J.M.F.C. as the written arguments are also submitted and the oral arguments are going on, at that point of time, such application is made.”

The high court however found no error committed by the concerned Trial Court while deciding the application for transfer to POCSO court and decided not to consider the prayers sought in the quashing petition and kept it open for the petitioners to agitate their contentions at the time of further proceedings before the concerned POCSO Court.

The Court then observed “It is also required to be noted that this is a glaring example that causal approach is adopted by the investigating agency and it has carried out investigation in mechanical manner without properly applying its mind while carrying out investigation and at the time of filing of charge-sheet. Thereafter, neither of the Public Prosecutors who were in charge of the matter have applied their mind before the trial Court, though such factum was clearly stated in the deposition of the victim in the year 2018 during the course of examination. Furthermore, unfortunately, neither of the Presiding Officer/s of the trial Court have considered this aspect and therefore, the precious working hours are wasted and now the POCSO Court has to consider the case accordingly by giving proper opportunities to the parties.”

The Court then directed the concerned higher authorities to look into the matter with a view to avoid repetition of such incidents and to carry out some exercise to find out any similar incidents is/are happening anywhere across the state.

With the above observations, the Court disposed of the petition with the direction to serve the copy of the Order to DGP of the State, Home Secretary, Law Secretary and also to the Registrar General of the High Court, for necessary consideration.

Case Title: Thakor Vipulji Gamaji & Ors. vs State of Gujarat

Click Here To Read/Download Order