Causal Approach Adopted By Investigating Agency; Precious Working Hours Wasted: Gujarat HC On Transfer Of Case To POCSO Court After 8-year Delay
The Gujarat High Court highlighted the causal approach adopted by the investigating agency in carrying out the investigation in a mechanical manner while dealing with a criminal matter where the case was transferred to the POCSO Court after a delay of 8 years when the trial was at the fag end.
The Petition was filed for the High Court seeking quashing of all the proceedings arising out of the FIR registered under Sections 354, 504, 427, 114 of the Indian Penal Code, and along with the subsequently added Sections 11 and 12 of the POCSO Act.
The Single-Judge Bench of Justice Sandeep N. Bhatt said “Prima facie, it transpires that the investigating Agency as well as prosecution and to some extent, the Presiding Officer have failed in discharging their duties in appropriate manner.
Advocate Keval H Maharaja represented the Applicant while Public Prosecutor Hardik Dave represented the Respondent.
One of the striking aspects of this case was that the proceedings continued for 8 years and thereafter an application was filed to transfer the present case to the POCSO court.
“Prima facie, it is very strange and also shameful on the part of the entire law enforcing and law adjudicating machinery that after eight years when the trial is proceeded substantially before the learned Judicial Magistrate First Class (J.M.F.C.) under the provisions of Sections 354, 504, 427 and 114 of the Indian Penal Code, the application at Exh.99 is filed to transfer the case to the POCSO Court as offences are made out under the provisions of the Protection of Children from Sexual Offences Act, as the age of the victim at the time of incident was 15 years”, the Bench, at the outset, observed.
It was noticed that the charge sheet was filed only with regard to the offences under the provisions of IPC. Offences were meted out and thereafter, the investigation was carried out and the chargesheet came to be filed by the Investigating Officer. The trial commenced before the concerned Magistrate for framing of the charges and the trial proceeded, evidence was led.
The victim had deposed in the year 2018 categorically stating that at the time of the incident, she was aged 15 years. “Even no action is taken by the learned Assistant Public Prosecutor neither cognizance of such fact is taken by the learned Presiding Officer who was conducting the trial. Even the defence has failed to point out the relevant aspects before the concerned Court”, the Bench said.
It was further noticed by the Bench that when the investigation was carried out, this aspect was nowhere referred to that at the time of the incident, the girl was aged 15 years. “It can be said that there is no proper application of mind at any level, either by the Investigating Agency or by the prosecution, thereby, the precious time of the investigating agency as well as the concerned Court is wasted from 2016 to 2024”, it added.
It was also noted by the Bench that the trial is at the fag end and the oral arguments are going on. However, considering that when the fact was pointed out before the concerned trial Court, the trial Court allowed the application. It was also found by the High Court thereafter that there was no error committed by the concerned trial Court while deciding the application. The Court thus held, “Therefore, the prayers sought in the present petition are not required to be considered, at this stage, by keeping all rights and contentions of the petitioners open to agitate at the time of further proceedings before the concerned POCSO Court.”
“It is also required to be noted that this is a glaring example that causal approach is adopted by the investigating agency and it has carried out investigation in mechanical manner without properly applying its mind while carrying out investigation and at the time of filing of charge-sheet”, it further added.
As per the Court, neither of the Public Prosecutors who were in charge of the matter applied their mind before the trial Court, though such factum was clearly stated in the deposition of the victim in the year 2018 during the course of examination. “Furthermore, unfortunately, neither of the Presiding Officer/s of the trial Court have considered this aspect and therefore, the precious working hours are wasted and now the POCSO Court has to consider the case accordingly by giving proper opportunities to the parties”, it said.
The Bench disposed of the Petition by concluding, “Let the concerned higher authorities may look into the matter and shall do the needful in the matter with a view to avoid repetition of such incidents and if requires, to do the needful to carry out some exercise to find out any similar incident/s is/are happening anywhere across the State.”
Cause Title: Thakor Vipulji Gamaji & Ors. v. State of Gujarat & Anr. (Neutral Citation: 2024:GUJHC:71043)
Appearance:
Petitioner: Advocate Keval H Maharaja
Respondents: Public Prosecutor Hardik Dave