Summary General Court Martial Can Try Cases Under POCSO Act, Must Protect Identity, Dignity & Psychology Of Victim Child: J&K&L High Court

Judge Rajnesh Oswal observed that

"There is no provision in the Act of 2012 that bars the jurisdiction of SGCM to try the offences under the Act of 2012. Rather section 42-A of Act of 2012 provides that the provisions of this Act shall be in addition to and not in derogation of provisions of any other law for the time being in force and in case of any inconsistency only, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of inconsistency."

The Court was further of the opinion that there is no conflict between the POCSO Act and the Army Act 1950, and hence, so long as the identity, dignity and psychology of victim child is preserved duirng the course of trial, the SGCM is very well entitled to hear the cases.

The observations come in a plea assailing the order of SGCM rejecting the plea of jurisdiction raised by the petitioner therein.

The petitioner argued that POCSO Act is the special enactment that provides for the constitution of special courts for the trial of offences under the POCSO Act and as the SGCM is not a special court, so the petitioner cannot be tried under the POCSO Act in SGCM.

The respondents had filed a response stating that the petitioner has wrongly invoked the writ jurisdiction of this Court as after the rejection of the plea with regard to the jurisdiction, the petitioner should have filed the petition under section 164 (1) before the confirming authority. Thereafter, if not satisfied with the decision, then the petitioner has an option to file a petition under section 164 (2) before the Chief of Army Staff or before the Armed Forces Tribunal.

Further they relied on Col. Hardeep Singh Bindra vs Union of India and others, wherein it was held by Armed Forces Tribunal, Mumbai that the SGCM has jurisdiction to try the offences under the POCSO Act. It was also stated that the SGCM has jurisdiction to try the case against the accused who is charged with two charges under section 69 of the Army Act. In the response, reference was also been made to the relevant sections of the Army Act. Precisely, it is stand of the respondents that the SGCM has jurisdiction to try the offence under the POCSO Act.

Petitioner argued that as per the mandate of section 28 of the POCSO Act, only the special court has jurisdiction to try the offences under the POCSO Act and further that the POCSO Act, 2012 has an overriding effect over all other Acts including the Army Act.

Mr. Vishal Sharma, ASGI vehemently argued that the petitioner has been charged for commission of a civil offence under section 69 of the Army Act as the petitioner has acted contrary to section 11(i) of Protection of Children from Sexual Offence Act, as such, the SGCM has jurisdiction to try the offences under the POCSO Act as well.

The issue before court was to decide whether the SGCM has jurisdiction to try the offences under the POCSO Act, 2012.

Court first went into the purpose of the Act and stated that the very purpose of the Act was to protect the children from offences of the sexual assault, sexual harassment and pornography and to provide for establishment of special court for trial of such offences. The enactment was made taking into consideration the convention on the rights of the child adopted by the General Assembly of the United Nations that has prescribed the set of standards to be followed by all the state parties in securing the best interest of child.

Court said that it was through the medium of this Act that the right to privacy and confidentiality of the child has been protected through all the stages of judicial process involving the child. This enactment was made so as to ensure the healthy, physical, emotional, intellectual and social development of the child. The Act itself is the victim specific and to ensure the well being of the victim child and to protect him from any emotional and social harassment, certain safeguards have been provided in the Act itself even during the trial of said offences. The main stress of the Act is on providing the child-friendly procedure.

The Court also noted that a perusal of the charge sheet reveals that that there are two charges against the petitioner for commission of offences under section 69 of the Army Act.

"Section 69 of the Act (supra) deals with civil offences and provides that any person, who is subject to Act (supra), who at any place in or beyond India commits civil offence, shall be deemed to be guilty of an offence against this Act and if charged with this section, shall be liable to be tried by a courtmartial. Exception to section 69 is provided by section 70 of the Act(supra), that provides that if a person subject to this Act commits murder of a person not subject to military, naval or air force law, or of culpable homicide not amounting to murder against such a person or of rape of such a person, he shall not be deemed to be guilty of an offence under this Act and shall not be tried by a court-martial unless he commits offences while on active service, or at any place outside India, or at a frontier post specified by the Central"

With regard to offenses under POCSO, Court observed that they are civil offences, notwithstanding the fact that section 28 of Act 2012, provides for designation of Court of Sessions as Special Court.

"The Special Courts have been created under the Act of 2012 with an avowed purpose of conducting speedy trial and to protect the dignity, psychology and honour of victim child. The Court of Sessions is a criminal court and once the offences under the Act of 2012 are triable by the Court of Sessions though designated as Special Court by the State Government in consultation with the Chief Justice of the High Court, the offences under the Act of 2012 would constitute a civil offence for the purpose of section 69 of the Act of 1950."

Court said that Section 28 of the Act of 2012 does provide for designation of Court of Sessions in each district as Special Court but at the same time, the Act of 2012 does not provide for any bar upon the court-martial to try the offences under Act of 2012. It was further observed that there is in fact no head on collision between the Act of 1950 and Act of 2012 so that both these Acts cannot operate in the same field. The court martial, of course, has to comply with the provisions meant for purpose of protecting the identity, dignity and psychology of victim child during the course of trial so that the trial by the court-martial is not inconsistent with the provisions contained under the Act of 2012.

Court observed that in view of section 164 of the Army Act 1950, the petition is not maintainable which provides that any person subject to this Act, who is aggrieved by any order passed by any Court-Martial, the said person may present a petition to the officer or authority empowered to confirming any finding or sentence of such courtmartial and the confirming authority thereafter may satisfy itself as to the correctness, legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.

"Once equally efficacious remedy is available to the petitioner by virtue of section 164 of the Army Act 1950, the petitioner is well within its right to avail said remedy. On this account also, the petition is not maintainable."

In view of what has been discussed above, the Court was of the considered opinion that there is no error on the part of SGCM to reject the plea of jurisdiction raised by the petitioner.

Case Title : Naik Bibhu Prasad v Union of India and others

Citation : 2022 LiveLaw (JKL) 42

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