Dinesh Maheshwari, J. - (1.) THE petitioner, an accused in Sessions Case No. 152/2013 said to be pending before the Sessions Judge, Jodhpur District has filed this writ petitioner seeking the following reliefs: - (a) that this Hon'ble Court may be pleased to issue a writ of mandamus, certiorari or any other appropriate writ directing respondent No. 2 to produce all relevant documents and information which is relevant for the trial of the case, from Shree Shanker Mumukshu Vidyapeeth at Shahjahanpur (UP) and also to submit a further report under Sec. 173 CrPC inter alia covering investigation about age of the complainant girl in Session Case No. 152 of 2013 in a time frame to be prescribed by this Hon'ble Court. (b) that this Hon'ble Court be pleased to direct the trial Court to adjourn the trial of Session Case No. 152 of 2013 till the report as per "a" is received from Respondent No. 2 and to decide the issue of age of the complainant girl thereafter by making an inquiry in a time frame to be prescribed by this Hon'ble Court and pass appropriate orders to transfer the case as a regular Session Case if the trial Court comes to a conclusion that POCSO is inapplicable to the case. (c) In alternative to "a" and/or "b" this Hon'ble Court be pleased to hold that the provisions of POCSO are ultra vires the Constitution of India. (d) This Hon'ble Court be pleased to order that the trial of Session Case No. 152 of 2013 on the file of the District & Session Court at Jodhpur be stayed pending hearing and disposal of this writ petition. (iii) Any other appropriate writ, order or direction which this Hon'ble Court consider just and proper, in the facts and circumstances of the case may kindly be passed. Having gone through the material placed on record and upon our posing question to the grounds in relation to the relief (c) as claimed in this petition, so as to hold the provisions of the enactment Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'POCSO') as ultra vires the Constitution of India, the learned counsel for the petitioner has referred to grounds G, I, J, K and M in this petition in particular and has also referred to the other contents of the writ petition generally. The grounds G, I, J, K and M read as under: - G. Section 34 of POCSO empowers the Special Court under POCSO to determine the age of an accused if question arises over the age of a juvenile accused whereas there is no provision for the accused person to seek determination of age of victim despite there being a valid and sustainable question and dispute over the age of victim and such an anomaly in POCSO creates a serious prejudice for the accused person particularly in an instance where the Investigating Agency for the reasons best known to it is intentionally withholding vital documents and information from the Court instead of coming out with clean hands for furthering fair and just trial for the accused. I. A Special Court under POCSO would not have jurisdiction to try an offence when the victim is major and therefore when a dispute or question arises over the age of victim, there ought to be a procedure for deciding the same and denial of such remedy to the accused would be serious infringement of the fundamental right of accused under Arts. 14 & 21 of the Constitution of India. J. Once a report under Sec. 173 CrPC is submitted by police and cognizance is taken by the trial Court, it is unfair and unjust for the police to either deliberately and/or negligently withhold a supplementary report which would factually result in creating a handicap in the exercise of the trial Court's powers to make inquiries over its own jurisdiction. K. POCSO does not provide for any procedure whereby the Special Court could decide on jurisdictional issue raised by accused unlike other special enactments such as MCOCA neither does it provide for transfer of case as a regular Session Case upon satisfaction about non -applicability of POCSO and this lacuna in POCSO creates a serious prejudice against the accused person who has to undergo his trial under stringent and one -sided provisions even in an instance where there is conspiracy by the complainant to falsely implicate the accused. M. The Procedures to be followed by the Special Court under Chapter VIII of POCSO and the special rights available to the victims under the provisions of Chapter VIII are meant only for a child and unless there are checks and controls to screen the victims for ensuring that POCSO is not abused by non -children, the said provisions of POCSO as also the other stringent provisions of POCSO clearly result in grave injustice as against the accused by depriving the accused of the rights that are available to persons accused by a non -child i.e. a major of having committed the very same act.
(2.) IT is submitted that the provisions in the enactment, POCSO are offending fundamental rights guaranteed by Articles 14 and 21 of the Constitution of India particularly when rather stringent provisions have been made with presumption against the accused but with no corresponding safeguard for free and fair trial. It is submitted that no provisions have been made for determination of the question of the age of the victim at the instance of the accused, and for transfer of the case for regular trial as provided in several other enactments like the Disturbed Areas (Special Courts) Act, 1976 and the Terrorist Affected Areas (Special Courts) Act, 1984. Thus, according to the learned counsel, the procedure provided in the enactment offends the rights guaranteed in the Constitution of India. Having given thoughtful consideration to the submissions made and after having examined the provisions of the enactment POCSO as also the other enactments, we are clearly of the view that the suggestions about unconstitutionality of the provisions with reference to some so -called shortcomings, anomaly or lacuna in the procedure as provided, remain bereft of substance and do not make out a case against the constitutionality of the enactment.
(3.) IT remains trite that a statutory provision could be challenged as ultra vires on the grounds either on the legislative competence or if the provision offends any of the provision of the Constitution. Legislative competence is not in question in the present case; and on the submissions as made, we are unable to find any of the constitutional provision being offended by the enactment.;