P. Shanmugavel Raj v. State
(2014) 140 AIC 689
In the High Court of Madras
Cri. RC (M.D.) 743/2013 and M.P. (M.D.) 1-2/2013
Before Justice P. N. Prakash
Decided on March 14, 2014

Relevancy of the case: Appointment of a Special Public Prosecutor for conducting trials before the POCSO Special Courts

Statutes and Provisions Involved

• The Information Technology Act, 2000 (Section 67B)
• The Immoral Traffic (Prevention) Act, 1956 (Section 5(1)(D))
• The Protection of Children from Sexual Offences Act, 2012 (Section 4)
• The Indian Penal Code, 1860 (Section 109, 376, 506)

Relevant Facts of the Case

• The Tirunelveli All Women Police Station registered a case against the petitioner and two other accused persons for sexually assaulting a 13-year-old child.
• After completing the investigation, the police filed the final report before the Special Sessions Court (Mahila Court), Tirunelveli.
• The petitioner filed a petition before the trial court, claiming that the public prosecutor was not competent to conduct the trial before the said court. This claim was because her appointment was not under Section 32(1) of the POCSO Act.
• The petitioner has filed a criminal revision petition against the trial court’s order that dismissed his petition.

Prominent Arguments by the Advocates

• The petitioner’s counsel argued that Section 32(1) of the POCSO Act requires the State Government to appoint a Special Public Prosecutor to conduct the trial before the Special Court. However, this has not happened in the present case.
• The respondent’s counsel submitted that:

Opinion of the Bench

• The court went through Sections 28, 31, 32, and 33, and noted that a state government could designate a court of sessions as a special court under the POCSO Act. However, the act does not empower a state government to set up new courts to try offences under POCSO. This special court can also undertake trials for Section 67B of the Information Technology Act, 2000, insofar as it relates to child sexual abuse material.
• On the High Court’s proposal, all the state’s districts had a designated Mahila Court for speedy trial and disposal of cases.
• A Government Order dated March 20, 2009, declared the Mahila Court, Tirunelveli, as the Children’s Court as well. Accordingly, a special court can take cognisance without committal as required under Section 33(1).
• Section 32(1) of the POCSO Act places a statutory duty on the State Government to appoint sufficient Special Public Prosecutors. Section 2(u) of the Code of Criminal Procedure, 1973 defines the term public prosecutor.
• The appointment order of public prosecutor is traceable to Section 24(8) of the Code of Criminal Procedure, 1973. Moreover, it also satisfies requirements under Section 32(2) of the POCSO Act.

Final Decision

• The bench dismissed the petition and closed the connected miscellaneous petitions.