The Single Bench of Justice Sanjeev Kumar while answering a reference by the Sessions Judge (PDJ), Jammu held that a Special Court designated under the POCSO Act is by virtue of Section 28(2) of the POCSO Act, while trying offences under POCSO Act authorized to try any other offence with which the accused may, under Cr.P.C be charged in the same trial. Trial of such offences by the Special Court is permissible only along with offences under POCSO Act and not independently thereof.

The Reference was made in a case wherein Court of Special Judge under Protection of Children from Sexual Offences Act, 2012 [“POCSO Act”] charged the accused only with the commission of offence punishable under 302 IPC and discharged him of the offence under Section 3/4 POCSO Act, and due to alteration of the charge and deletion of Section 3/4 POCSO from the charge, Special Judge transmitted the records of the case to Sessions Judge (PDJ), Jammu for its disposal in accordance with law, on the ground that with the deletion of charge under Section 3/4 POCSO Act, the Court had lost jurisdiction to try the accused. 

However, the Sessions Judge, was of an opinion that notwithstanding the discharge of the accused under Section 3/4 POCSO Act, the Special Judge, being a Court of Sessions under Section 31 of the POCSO Act was competent to try the accused for an offence under Section 302 IPC, and that in terms of Section 28 of the POCSO Act, the Special Court was entitled to try along with offences under POCSO Act any other offence under Indian Penal Code. 

The High Court upon considering the case held that in terms of Section 28(2) of POCSO Act, while the Special Court is trying the offences under POCSO Act, it shall also have jurisdiction and competence to try an offence other than the POCSO offences under POCSO Act with which the accused may, under the Code of Criminal Procedure be charged in the same trial. However, it held that trial of such offences by the Special Court is permissible only along with offences under POCSO Act and not independently thereof.

Further, the Court observed, “Section 31 only regulates and prescribes procedure to be followed in the proceedings before Special Court. Section 31 does not confer any new jurisdiction on Special Court to try offences other than offences under POCSO Act independently and without there being any offence under POCSO being tried by the Special Court along with such offences.”

The Court held that upon a harmonious consideration of Section 28 and Section 31 of the POCSO Act, it is abundantly clear that “with a view to regulate the procedure and also to exercise other powers under the Code of Criminal Procedure including provisions as to bail and bonds, the Special Court shall be deemed to be a Court of Sessions but that does not mean that it can act as a Court of Sessions for trial of offences under the Indian Penal Code. The jurisdiction to try the offences under the Indian Penal Code including Section 302 IPC would be available to the Special Court when it is trying the said offence along with the offences under POCSO Act.”

The Court, therefore, held that the POCSO Court was perfectly justified in transmitting the record of the case to the Court of learned Sessions Judge (PDJ), Jammu for its disposal in accordance with law, while as the view taken by the Sessions Judge does not seem to be in accord with the provisions of Section 28 read with Section 31 of the POCSO Act.