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

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. Disclaimer
Views expressed in
this document are
for information and
academic purpose
only.
2

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. 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. 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. First we will discuss
on the production
and Remand of the
Accused.
6

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. “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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Thank
You
41