DATE OF JUDGEMENT:
12th November, 2021
Justice Manoj Kumar Ohri
Hari Dev Acharya (Appellant)
The Court dealt with the issue of combining two separate incidents in a single FIR. The Court held that the Protection of Children from Sexual Offenses (POCSO) Act, 2012 is silent on whether two separate incidents can be combined in a single First Information Report (FIR) and hence, the provisions of the Code of Criminal Procedure, 1973 (CrPC) would apply, allowing joint trial if the offences were committed during the same transaction.
- An FIR was initially lodged under Section 377 of Indian Penal Code and Section10 of the POCSO Act against Nikhil Arya and the petitioners.The child victim alleged that he was harassed and sexually exploited by Nikhil Arya during his stay at the concerned Gurukul.
- However, at the police station, a compromise was reached between the accused persons and the victim.
- Thereafter, a month later, another incident of sexual assault was allegedly committed by Nikhil Arya among others.A common charge sheet was lodged under Section 377 of Indian Penal Code and Section 6 of POCSO Act. The statements of the victim were recorded under Section 161 and 164 of Code of Criminal Procedure.
- The Trial Court summoned the petitioners and co accused Nikhil Arya after clubbing the two complaints. The petitioners filed an appeal before the High Court contending that the FIRs could not be clubbed as the two incidents were distinct and there was no involvement of the petitioners in the second incident. They were accused only in the first incident.
- With respect to the first incident, the petitioner contended that the two essentials under Section 21 of the POCSO Act, that is, commission of an offense and knowledge, were missing. The petitioner that he was not in India at the time of commission.
- The respondents contended that the victim and his family were forced to enter into a compromise and that the medical report of the victim supported his case.
Code of Criminal Procedure:
- Section 223(d): Persons who are accused of separate offences committed in the same transaction can be tried jointly
Protection of Children from Sexual Offences Act, 2012
- Section 31: The provisions of the Code of Criminal Procedure would be applicable in the proceedings before the Special Court, except where otherwise provided.
- Whether the two FIRs could be clubbed by the Trial Court?
- The Court held that under Section 19 of the POCSO Act, three ingredients have to be proved that an offense was committed by a person.
- Firstly, that the commission under POCSO Act was committed or likely to be committed. Secondly, that the person had knowledge of such commission or likelihood of commission. Thirdly, that the person, despite having knowledge of the commission, did not inform the authorities about the same.
- In the present case, the key accused Nikhil Arya was guilty of committing the offense and the petitioners were accused of not informing the authorities about the commissioning of the offense.
- The Court pointed out that the presence of the victim at the concerned Gurukul at the time of commission of offense and the fact that he was a minor at that time are undisputed.
- The Court held that since the POCSO Act remains silent on such clubbing of separate complainants, recourse would be taken to Code of Criminal Procedure as per Section 31 of the POCSO Act.
- The Court held that the two complaints could be clubbed together as Section 223(d) of the Code of Criminal Procedure provides that where separate offenses, which were a part of the same transaction, were committed by separate persons, then such complaints can be clubbed together.
- The Court further explained that the separate offenses can be considered to be a part of the same transaction if there was proximity of time, place or time and continuity of actions with respect to the concerned acts.
- Since both the offenses took place in the same place and by the same person and since they were punishable under the same Sections, the Court held that the two offenses were a part of the same transaction and hence could be jointly tried.
The Court rightly held that the FIRs could be clubbed together. The POCSO Act provides that media personnel, hospitals, people in charge of hotels, etc., are to report any instance, of sexual assault of children, that they have knowledge of, to the police officials. This obligation is placed on the society as the society is also responsible to ensure the protection and well-being of the children.
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