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Powers of the Special Court to Remand the Accused

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POCSO, Atrocities Act SC ST Prevention Protection Child, Sexual abuse act law Remand production powers magistrate special court judgment reference

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Powers of the Special Court to Remand the Accused

  1. 1. Jurisdiction of Special Court and Exclusive Courts – Production, Remand, Taking Cognizance and Private complaint for the offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 2015 :Prepared by: H. S. MULIA 1
  2. 2. Disclaimer Views expressed in this document are for information and academic purpose only. 2
  3. 3. The provisions contained under the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (Atrocities Act) and the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) are almost similar in nature therefore, same are discussed simultaneously in this session. 3
  4. 4. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (Atrocities Act) which came into effect from 26th January, 2016. Whereas, the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) came into effect on 14th November, 2012. 4
  5. 5. Both the Acts provide for stringent punishment. The most confusing part is with respect to the production and remand of arrested accused. Both the Acts do not have any direct provision as to who is the competent court to remand the accused. Both the Acts do not give jurisdiction to the Magistrate in this regard. 5
  6. 6. First we will discuss on the production and Remand of the Accused. 6
  7. 7. In the normal circumstance following provisions contained u/s 56 and 57 of the Criminal Procedure Code, 1978 (CrPC) deal with the after effect of the arrest of any person. 7
  8. 8. Whereas, Article 22(2) of the Constitution of India, 1950 provides as under: “22(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.” 8
  9. 9. It is the constitutional mandate that an arrested person has to be produced before a Magistrate within 24 hours and there cannot be any escape from it. What will be the procedure after production of the accused has been dealt with in Section 167 of the CrPC. And, same provides that the IO shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary relating to the case, and shall at the same time forward the accused to such Magistrate. 9
  10. 10. Section 167(2) of the CrPC further provides that if such Magistrate does not have jurisdiction to commit or try the case, he may forward the accused to the Magistrate having such jurisdiction. 10
  11. 11. Above referred provisions make the situation clear that even if the Magistrate does not have jurisdiction to commit or try the case, for the first production of the accused, such Magistrate may authorize detention irrespective of his jurisdiction. It is therefore, clear that such Magistrate has to consider jurisdictional prescription upon first remand and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a magistrate having Jurisdiction. 11
  12. 12. There is no provision in the Atrocities Act or the POCSO Act corresponding to or similar in nature of Section 56, 57 and 167 of the CrPC. Therefore, by virtue of Section 4(2) of the CrPC, the procedure prescribed in the CrPC for production and remand of accused u/s 167 has to be followed. 12
  13. 13. Now the question which is required to be answered is, which Magistrate has power and jurisdiction to take cognizance? The obvious answer is the Magistrate who is empowered u/s 190 of the CrPC, can take cognizance. The same Magistrate shall also have the jurisdiction to commit the case. 13
  14. 14. In this context we have to look at the proviso of Section 14(1) of the Atrocities Act and Section 33(1) of the POCSO Act. 14
  15. 15. The Second Proviso of Section 14(1) of the Atrocities Act reads as under: “Provided further that the Courts so established or specified shall have power to directly take cognizance of offences under this Act.” 15
  16. 16. Section 33(1) of the POCSO Act reads as under: Procedure and powers of Special Court : Section 33(1):- “A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts”. 16
  17. 17. The Atrocities Act or the POCSO Act do not provide anything about the procedure to be adopted before/after taking cognizance by the Special Court. Therefore, as discussed hereinabove, by virtue of Section 4(2) of the CrPC, the procedure prescribed in CrPC has to be followed. 17
  18. 18. Taking Cognizance:- In a complaint case, the CrPC requires that procedure prescribed in Section 200 to 204 of the CrPC has to be complied with. There is no doubt that a Special Court under the Atrocities Act or the POCSO Act can take cognizance upon a complaint. As such it has to follow the procedure prescribed in Section 200 to 204 of the CrPC. 18
  19. 19. Even upon taking cognizance on police report, a process (summons or warrant) has to be issued under Section 204 of the CrPC. Even this section uses the expression “Magistrate”. Since the Special Court has to follow the same procedure, we have to read “Special Court” in all such sections instead of “Magistrate”. 19
  20. 20. Hon'ble Supreme Court in Harshad S. Mehta v. State of Maharashtra, (2001) 8 SCC 257, though in the context of Criminal Law Amendment Act, 1952 has taken a similar view. Following extract may be relevant: 20
  21. 21. “We may note an illustration given by Mr Salve referring to Section 157 of the Code. Learned counsel submitted that the report under that section is required to be sent to a Magistrate empowered to take cognizance of offence. In relation to offence under the Act, the Magistrate has no power to take cognizance. That power is exclusively with the Special Court and thus report under Section 157 of the Code will have to be sent to the Special Court though the section requires it to be sent to the Magistrate. It is clear that for the expression “Magistrate” in Section 157, so far as the Act is concerned, it is required to be read as “Special Court” and likewise in respect of other provisions of the Code. If the expression “Special Court” is read for the expression “Magistrate”, everything will fall in line. This harmonious construction of the provisions of the Act and the Code makes the Act work. That is what is required by principles of statutory interpretation.” 21
  22. 22. Now if we are reading the expression “Special Court” in place of “Magistrate” in several provisions of the CrPC on the basis of jurisdictional competence of taking cognizance, there seems to be no reason as to why we should not read the same expression “Special Court” in Section 167 of the CrPC. 22
  23. 23. We should and have to read section167 of the CrPC, as if it uses “Special Court” instead of “Magistrate” for the purpose of the Atrocities Act. Once read in such manner, no doubt will remain on the board. Upon expiry of first 15 days, the “Magistrate” who does not have powers to take cognizance has to forward the accused to the “Special Court” having jurisdiction. 23
  24. 24. Hon'ble Supreme Court was once dealing with special judge's power to remand under Section 167 of the CrPC in the context of Criminal Law Amendment Act 1952 and made following observations in para Nos. 6, 7 and 10 of the State of T.N. v. V. Krishnaswami Naidu, (1979) 4 SCC 5: 24
  25. 25. Para 6 - The Special Judge in the Criminal Law (Amendment) Act 1952 is for some purposes deemed to be a Sessions Judge and for some other purposes deemed to be a Magistrate and some powers exercised by the Magistrate are conferred on him. The special Judge is empowered to take cognizance without the accused being committed and in trying the accused persons he is required to follow the procedure for trial of warrant cases by a Magistrate. Under Section 8 (3) except as regards the provisions in sub-sections (1) and (2) the provisions of Code of Criminal Procedure are made applicable in so far as they are not inconsistent with the Criminal Law (Amendment) Act, 1952. 25
  26. 26. Para 7 - The Criminal Law (Amendment) Act being an amending Act the provisions are intended to provide for a speedy trial of certain offences. The Criminal Law (Amendment) Act is not intended to be a complete code relating to procedure. The provisions of the Cr. P.C. are not excluded unless they are inconsistent with the Criminal Law (Amendment) Act. Thus the Cr. P.C. is applicable when there is no conflict with the provisions of Criminal Law (Amendment) Act. If the context otherwise requires the word "Magistrate" may include Magistrates who are not specified u/s 3, of the CrPC. Read along with definition of the Magistrate in the General Clauses Act there can be no difficulty in construing the Special Judge as a Magistrate for the purposes of Section 167 of the CrPC. 26
  27. 27. It has been finally held that the Magistrate to whom the accused is forwarded if he is not the Magistrate having jurisdiction to try the case may authorize the detention of the accused in such custody as he thinks fit for a term not exceeding 15 days on the whole. If he has no jurisdiction to try the case and if he considers that further detention is necessary he may order the accused to be forwarded to any Magistrate having jurisdiction. 27
  28. 28. Totality of the above referred discussion leaves no room for the doubt that we have to read “Special Court” instead of “Magistrate” in Section 167 of the CrPC. So even the nearest “Special Court” can be treated as nearest “Magistrate” under Section 167 of the CrPC. And, when accused is produced before the Magistrate who does not have power to take cognizance, can for the first production of the accused, such Magistrate may authorize detention irrespective of his jurisdiction, for the initial period of 15 days. 28
  29. 29. Powers of the Special Court u/s 156(3) of the CrPC:- Like Section 156(3) of the CrPC, there is no provision in the Atrocities Act or POCSO Act explicitly empowering the Special Court under these Acts to refer a complaint to the police for investigation. Section 156(3) of the CrPC speaks only of the power of a Magistrate and it has no specific reference to a Special Court under the Special Acts. If it is so narrowly interpreted that Section 156(3) of the CrPC is applicable only to a Magistrate and not to the Special Courts, then, the Special Court cannot refer any complaint to the police at all for investigation. Thus, the term Magistrate as employed in Section 156(3) of the CrPC should be read as the special court in the context of the Atrocities Act or the POCSO Act. 29
  30. 30. At this stage reference is required to be made to the ratio laid down by the Hon'ble Division Bench of the Madras High Court in the case of The Registrar (Judicial) vs Krishnnaswami Naidu, Reference No.1 of 2017, dated 28th April, 2017. 30
  31. 31. In para No.40 it has been observed as under:- Thus, the Special Court shall exercise original jurisdiction exclusively to take cognizance of any offence under the Special Act and try the case not being hindered by Section 193 of the CrPC. Such Courts shall have power to remand the accused by exercising the power under 167(2) of the CrPC. Such power shall not, however, exclude the power of a Judicial Magistrate from passing an initial order of remand of an accused for a period not exceeding 15 days. 31
  32. 32. Answering the reference, it is held that whenever any person is arrested for any offence under the Atrocities Act or the POCSO Act and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours as prescribed in Section 57 of the Code, and if, the other conditions enumerated in Section 167(1) of the CrPC are satisfied, the investigating officer shall forthwith transmit the accused to the Special Court under the Atrocities Act or the POCSO Act and the said court shall deal with the accused as provided in Section 167(2) of the CrPC. 32
  33. 33. It has been further held that if, the accused could not be produced within 24 hours before the jurisdictional Special Court under the Atrocities Act or the POCSO Act, the investigating officer may produce him before the nearest Judicial Magistrate as provided in Section 167(1) of the CrPC, who may remand the accused to such custody, as he thinks fit for a term not exceeding 15 in the whole and he shall, as provided in Section 167(2), order the accused to be forwarded to the Special Court under the Atrocities Act or the POCSO Act for further proceedings. 33
  34. 34. Finally it has been held in para 54(v) that... The administrative instruction vide circular No. R.O.C.No.640/2014/G4, dated 12.02.2016, to an effect that upon arrest of the accused pursuant to registration of a case which involves or also involves an offence under the POCSO Act, 2012, the accused is to be produced before the jurisdictional Magistrate for purposes of remand has been directed to forthwith withdraw. 34
  35. 35. From the discussion held above, we can safely say that a person arrested for the offence under the Atrocities Act or the POCSO Act has to be produced and dealt with in the following manner: 35
  36. 36. If the Special Court of the area is available, the production shall be before only such court and remand shall be dealt with by such Special Court only; 36
  37. 37. If the accused could not be produced within 24 hours before the Special Court, for the reasons natural calamity, strife etc. the investigating officer may produce the accused before the nearest Magistrate as provided in Section 167(1) of the CrPC, who may remand the accused to such custody, as he thinks fit for a term not exceeding 15 days in the whole and he shall, as provided in Section 167(2), order the accused to be forwarded to the Special Court for further proceedings; 37
  38. 38. In case if the need for further remand arises after the first order of remand, same shall be dealt with only by the Special Court; 38
  39. 39. If the Special Court grants remand for a period less than 15 days on first production and for further remand, it is not available for any reason, Magistrate cannot extend the custody. Reason is obvious, only the first production can be made irrespective of jurisdiction and not further production. 39
  40. 40. It is desirable to make necessary arrangement for such situation by assigning “Charge” of the Special Court appropriate judges who in the absence of presiding officer of the Special Court can deal with his work. 40
  41. 41. Thank You 41

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