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2016 DIGILAW 2640 (ALL)

NADIRAJA v. STATE OF U. P.

2016-08-01

HARSH KUMAR

body2016
JUDGMENT Hon’ble Harsh Kumar, J.—Heard learned counsel for the applicants, learned AGA and perused the record. 2. Present application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned order dated 6.8.2013 passed by the Judicial Magistrate, Jalaun in case No. 952 of 2013 (State of U.P. v. Nadiraja), under Sections 452, 354 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012, P.S. Jalaun, District Jalaun. 3. Learned counsel for the applicant contends that the applicant has been falsely implicated and upon investigation the Investigating Officer without collecting any material submitted charge-sheet against the applicant under Sections 452, 354 IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012; that the Investigating Officer ought to have submitted charge-sheet before the Special Sessions Judge, Jalaun at Orai; that in view of provisions of Section 33 of the POCSO Act, the Judicial Magistrate had no jurisdiction to take cognizance upon the charge-sheet; that in view of provisions of POCSO Act the Magistrate had no jurisdiction to subtract/exclude any Section of offence mentioned in the charge-sheet at the time of taking cognizance so as to create and avail jurisdiction to try the case; that while the charge-sheet was submitted under Sections 452, 354 IPC and Section 6 of the POCSO Act, the Magistrate had no jurisdiction to take cognizance and it was not permissible for him to take cognizance under Sections 452 and 354 IPC after exclusion of Section 6 of the POCSO Act because of having no jurisdiction to try offence under Section 6 of the POCSO Act; that the provisions of Section 33 of the POCSO Act provides that only a Special Court designated under Section 28 of the Act may take cognizance of an offence under the Act. 4. 4. Per contra learned A.G.A. submitted that issues of fact raised by the accused/applicant for quashing of proceedings only relates to the irregularity and does not relate to any illegality; that for above reasons proceedings of criminal case in furtherance of submission of charge-sheet may not be quashed and the accused/applicant may not be acquitted or discharged of the offences; that since the Magistrate has no inherent jurisdiction to try the case, the matter may be transferred to the competent Special Sessions Judge under POCSO Act, Jalaun at Orai, who may proceed with the trial after taking cognizance in the matter. 5. Upon hearing learned counsel for the parties, I find that since pure legal question of jurisdiction of trial Court is involved, so no useful purpose would be served by issuing notices to the opposite party No. 2, the first informant when A.G.A. is present to look after the interests of prosecution. 6. Upon hearing learned counsel for the applicant and learned A.G.A. for the State and perusal of record, I find that the enactment of ‘Protection of Children from Sexual Offences Act, 2012’ received the assent of the Hon’ble President on 19.6.2012 and come into force from the date of its publication in gazette of India i.e. from 20.6.2012. The Section 28 of the POCSO Act provides that for the purposes of providing a speedy trial, the State Government shall, in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act and Section 33 of the Act provides the procedure and powers of Special Court. The relevant provisions of Sections 28 and 33 of the Act are being reproduced hereinunder: “28. The relevant provisions of Sections 28 and 33 of the Act are being reproduced hereinunder: “28. Designation of Special Courts : (1) For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act: Provided that if a Court of Session is notified as a children?s Court under the Commissions for Protection of Child Rights Act, 2005 or a Special Court designated for similar purposes under any other law for the time being in force, then, such Court shall be deemed to be a Special Court under this section. 33. Procedure and powers of Special Court : (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.” It may not be disputed that upon submission of charge-sheet, the Magistrate after considering the material on record may take cognizance of the offences under the relevant Sections of IPC or other Acts, for which offences he is empowered to do so. However, upon submission of charge-sheet the Magistrate has no jurisdiction to take cognizance of part of the offence leaving another part (by method of pick and choose) without assigning any reason or giving any finding in this regard just to create jurisdiction to try the case, in itself. It is not permissible to any Magistrate/Court, under law, to take cognizance in piecemeal, of part of offence, for trial of which he is competent and leave the other part of offence from taking cognizance of which he has no jurisdiction. In such cases the Magistrate has every authority to return the charge-sheet for proper presentation before the competent Court of Special Sessions Judge or otherwise as the case may be. Since the Act provides that a Court of Session will be designated as Special Court for trying the offences under the Act only such Special Court of the rank of Sessions Judge may take cognizance of the offence and the Magistrate or any Court below the rank of Sessions Judge may have no jurisdiction at all to take cognizance of the offence or to proceed with the trial. 7. 7. In view of the discussions made above, the impugned order of taking cognizance of part of the offence, upon submission of charge-sheet dated 6.8.2013 passed by the Magistrate, Jalaun is wrong, illegal and without jurisdiction and may not be permitted to continue. The above cognizance order, if allowed to stand, will not only prejudice to the rights of the parties but may also occasion in failure of justice. 8. In these circumstances the exercise of inherent powers by this Court appears necessary in order to prevent the abuse of process of Court and to secure the ends of justice. 9. Accordingly, the impugned order dated 6.8.2012 passed by Judicial Magistrate, Jalaun in criminal case No. 752 of 2013 (State v. Nadiraja), arising out of case crime No. 695 of 2013 upon submission of charge-sheet under Sections 354, 452 IPC and Section 6 of the POCSO Act is quashed without prejudice to the rights of the parties and the learned Magistrate is directed to return the charge-sheet to Investigating Officer/Station Officer of Police Station concerned for proper presentation to the Special Sessions Judge (under POCSO Act) at Jalaun for taking cognizance or necessary action as required in accordance with law and proceed with the trial. The charge-sheet will be returned by Judicial Magistrate/Magistrate concerned, Jalaun to the Investigating Officer/Station Officer of Police Station concerned within 3 days of receipt of copy of the order and further on receiving the charge-sheet back from the Court of Judicial Magistrate/Magistrate concerned, Jalaun, the Investigating Officer/Station Officer concerned shall submit the charge-sheet before the Special Sessions Judge, Jalaun, who has been designated as Special Sessions Judge under POCSO Act on 11th August, 2016. On 11th August, 2016, the applicant is directed to remain present before the above mentioned Special Sessions Judge. 10. Upon receipt of charge-sheet as above, the Special Sessions Judge (POCSO Act) shall pass necessary orders for taking cognizance or otherwise in accordance with law. 11. If the applicant is on bail, he shall continue to remain on bail on same terms and bail bonds. 10. Upon receipt of charge-sheet as above, the Special Sessions Judge (POCSO Act) shall pass necessary orders for taking cognizance or otherwise in accordance with law. 11. If the applicant is on bail, he shall continue to remain on bail on same terms and bail bonds. The bail bonds and personal bond shall be called by Special Sessions Judge from the Court of Judicial Magistrate/Magistrate concerned and if the applicant is not on bail in all or any of the Sections mentioned in charge-sheet, he shall be at liberty to move application for bail, which shall be decided by the Special Sessions Judge (POCSO Act), Jalaun at Orai expeditiously in accordance with law. 12. Let a copy of this order be sent to Sessions Judge, Jalaun at Orai immediately through Fax and other process, for ascertaining necessary compliance by Courts concerned. After ascertaining compliance, the Sessions Judge, Jalaun at Orai will obtain report of compliance for Courts concerned and will send his compliance report upto 23.8.2016 through Registrar General of the Court. 13. The application under Section 482 Cr.P.C. is disposed of accordingly.