‘No application of mind, precious time of police & Court wasted’; Gujarat HC slams Police, Prosecution and Trial Court for invoking POCSO Act after 8 yrs of FIR

Gujarat High Court: In an application seeking quashing of FIR registered under Sections 354¹, 504², 427³, and 114⁴ of the Penal Code, 1860, (‘IPC’) and the subsequently added Sections 11 and 12 of the Prevention of Children from Sexual Offences Act, 2012 (‘POCSO Act’) and the quashing of the order passed by the Trial Court allowing the transfer of the case to POCSO Court, the Single Judge Bench of Sandeep N. Bhatt, J., stated that it strange and shameful on the part of the entire law enforcement and adjudicating machinery that the case transfer application was filed eight years after the trial had proceeded substantially before the Trial Court under IPC. Rebuking the authorities involved, the Court disposed of the application while holding that the prayers sought were not required to be considered at this stage, but the accused could avail the appropriate remedy according to law.

Background

An FIR was filed on 14-01-2016 against the accused persons under Sections 354, 504, 427, 114 of IPC. The trial was conducted for eight years before an application was filed by the prosecution (‘transfer application’) seeking transfer of the matter to the POCSO Court concerned as the victim was 15 years old at the time of the incident and offences under the POCSO Act were made out. The transfer application was allowed and charges under Sections 11 and 12 of the POCSO Act were added by the Trial Court vide impugned order dated 19-07-2024. Aggrieved, the accused filed the present application.

During the proceedings of the present application, this Court, vide order dated 18-12-2024, directed the State to call for an explanation from the Investigating Officer concerned regarding lapses, if any. The Court further directed the Trial Court to provide a detailed report clarifying why the transfer application was considered at such a belated stage when the trial had already been going on for eight years and why such material aspect was not considered earlier by the Trial Court and the prosecution.

Analysis

After considering the reports, the Court stated that prima facie, it was very strange and shameful on the part of the entire law enforcement and adjudicating machinery that the transfer application was filed eight years later when the trial had proceeded substantially before the Trial Court under IPC.

Upon perusal of the charge sheet, the Court noted that only offences under IPC were mentioned. The Court further noted that during her deposition in 2018, the victim categorically stated that she was 15 years old at the time of the incident. Despite such deposition, neither did the APP took any action nor did the Trial Court Judge, who was conducting the trial, take cognizance of such fact. Even the defence failed to point out the relevant aspects before the Trial Court.

The Court stated that during the investigation, it was mentioned nowhere that the age of the victim was 15 years at the time of the incident. The Court further stated that prima facie it transpired that the Investigating Agency (‘IA’), prosecution and to some extent, the Trial Court failed in appropriately discharging their duties. There was no proper application of mind at any level, thus, the precious time of the IA and the Trial Court was wasted from 2016 to 2024. The Court also said that it was at the fag end of the trial when oral arguments were ongoing, that the transfer application was made.

The Court noted that when the age of the victim was pointed out before the Trial Court, it considered the same and allowed the transfer application. Noting this, the Court found that there was no error committed by the Trial Court while deciding the transfer application. Thus, the Court held that the prayers sought in the present application were not required to be considered at this stage. However, the Court stated that all rights and contentions of the petitioners were kept open to be agitated at the time of further proceedings before the POCSO Court concerned.

The Court noted that this was a glaring example that a causal approach was adopted by the IA who worked mechanically without properly applying its mind during the investigation and at the time of filing of the charge sheet. Further, neither of the Public Prosecutors who were in charge of the matter applied their minds before the Trial Court, even though such factum was clearly stated in the victim’s deposition during examination in 2018. Furthermore, unfortunately, neither of the Presiding Officers of the Trial Court considered this aspect. Therefore, the precious working hours were wasted and now the POCSO Court would have to consider the case accordingly after proper opportunities to the parties.

The Court asked the higher authorities concerned to look into the matter and ensure that such incidents are not repeated, and if required, carry out some exercise to find out whether any similar incidents are happening anywhere across the State. Stating this, the Court directed a copy of this order to be forwarded to the Director General of Police of the State, Home Secretary, Law Secretary, and Registrar General of this Court, for necessary consideration.

Stating the aforesaid, the Court disposed of the present petition while stating that the accused were not at fault, and they were allowed to avail appropriate remedy in accordance with law.

[Thakor Vipulji Gamaji v. State of Gujarat, Special Criminal Application (Quashing) No. 16545 of 2024, decided on 24-12-2024]

Advocates who appeared in this case :

For the applicants: Keval H Maharaja

For the respondent: Hardik Dave, PP and Manan Maheta, APP

Buy Protection of Children from Sexual Offences Act, 2012   HERE

Buy Penal Code, 1860   HERE