Research › Search › Judgment

Rajasthan High Court · body

2024 DIGILAW 787 (RAJ)

Teja Ram v. State of Rajasthan

2024-05-13

FARJAND ALI

body2024
ORDER : Farjand Ali, J. The instant Criminal Writ Petition has been preferred on behalf of the complainant/victim of a case seeking indulgence of this Court for issuance of certain directions to the police officials concerned to conduct further investigation in the matter. 2. Bereft of elaborate details, briefly stated the facts of the case are that an FIR got lodged at the instance of the petitioner herein for an offence of gang rape, kidnapping, illegal confinement punishable under Section 376(D), 365, 342 & 34 of the IPC as well as the offence of penetrative sexual assault punishable under Section 3/4 of the POCSO Act. The matter was investigated by the police, however, after investigation, to a large extent, the offence was not found proved. It was the opinion of the Investigating Officer that only the offence under Section 363 of the IPC and 84 of the Juvenile Justice (Care and Protection of Children) Act, was found against Mahendra Bishnoi and Ashok Bishnoi and accordingly, a report under Section 173 Cr.P.C. came to be submitted in the Court of Judicial Magistrate, First Class. 3. While going through the niceties of the matter, a serious deformity and processual error has been noticed. It was the grief of the victim/complainant that an offence punishable under POCSO Act was committed upon her. After investigation the said allegation was not found proved. This court feels that an opportunity to make protest against the investigational approach and finding has to be provided to the victim/complainant so that he or she may have an occasion to plead for taking cognizance of the alleged offence before the court competent to take cognizance. Assuming for a movement that it was a simpliciter case of offences related to POCSO Act in which after investigation a negative final report is chalked out than the Final Report ought to have been submitted in the POCSO Court. Being a Special Cout, the cognizance of offence can be taken by the Special Court only. Even in such cases, after lodging of the FIR the same is supposed to be forwarded to the Court of Special Judge POCSO Act cases in compliance of Section 157 of the Cr.P.C. Here in this case, though there were allegations pertaining to POCSO Act also but to the extent of the above, a negative Final Report has been submitted in the Court of Judicial Magistrate 1st class. Judicial Magistrate 1st class who is not empowered to take cognizance of offence under POCSO Act. In this situation the victim/complainant has been debarred and deprived of making a protest against Final Report and pray for taking cognizance which is against the spirit of law and justice. 4. There is no conflict in the legal position that upon filing of the negative Final Report/Closure Report; the victim/complainant has a right to move a protest petition. The said protest petition can be taken and treated as a criminal complaint. In the event of receiving a closure report the criminal court has power to send the matter back to the police to conduct further investigation in the matter. The court may take cognizance of the offence based on report under Section 173 Cr.P.C. because the opinion of the Investigating Officer is neither conclusive nor binding upon the Court. If the Court feels that inquiry should be done as contemplated under chapter XV of the Cr.P.C. It shall treat the protest petition as a criminal complaint and where after victim/complainant can be examined under Section 200 and other witnesses under Section 202 of Cr.P.C. If any assistance is sought from the agency then under Section 202(2) of Cr.P.C. directions can be given to the concerned which is not limited to the police only. After completion of inquiry, it may either dismiss the complaint under Section 203 or issue process against the accused under Section 204 of Cr.P.C. In view of the above proposition of law it can be said that in this case the victim has been debarred from taking resort of law and she has been deprived from making prayer for ventilation of her grievance regarding offence under the POCSO provisions. 5. In the case of Bhagwant Singh v. commissioner of Police & Anr. reported in 1985 AIR(SC) 1285 passed by the Hon'ble Supreme Court it has been propounded that in the case of partial Final Report also, the complainant/victim should be informed. The reason is that the informant who sets the machinery of investigation into motion by filing the First Information Report must know what is the result of the investigation initiated on the basis of the First Information Report lodged at his instance. The reason is that the informant who sets the machinery of investigation into motion by filing the First Information Report must know what is the result of the investigation initiated on the basis of the First Information Report lodged at his instance. The informant having taken the initiative in lodging the First Information Report with a view to carry investigation by the police for the purpose of ascertaining whether any offence has been committed and, if so, by whom, is vitally interested in the result of the investigation and hence the law requires that the action taken by the officer-in-charge of a police station on the First Information Report should be communicated to him and the report forwarded by such officer to the Magistrate under sub-section (2)(i) of Section 173 should also be supplied to him, so that he or she may seek justice or may make complaint for redressal of his or her grievances. He or she is also entitled under Principle of Natural Justice i.e. Audi Alteram Partem, a right to be heard, but the same has not been complied because a competent forum was not made available to her by the police in this matter which is reflecting from the order dated 11.01.2024 passed by the learned Judicial Magistrate. 6. According to the POCSO Act, on the lodging of FIR alleging offence under Section 3/4 of POCSO Act along with other offences provisions of POCSO Act being a special Act are attracted and the procedure contemplated in the Statute ought to have been taken place according to the said Act. Where under Section 28(2) of POCSO Act the Special Court established under POCSO Act is empowered to try other offences also in which accused is charged under the same trial. It is also pertinent that under Section 33(1) of POCSO Act the Special Court is vested with the power to 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, providing an inclusive power to try other offences in the same trial. As the above mentioned provision clearly states that the proceeding took place in the case in hand was erroneous as to the point of Jurisdiction as well as the competency of court to take cognizance. 7. As the above mentioned provision clearly states that the proceeding took place in the case in hand was erroneous as to the point of Jurisdiction as well as the competency of court to take cognizance. 7. In light of the above mentioned legal provision under the POCSO Act and the Judgement of Hon'ble Supreme Court it is clear that procedural error indeed has been committed in this matter. The report under Section 173 Cr.P.C in this case was supposed to be submitted in the Special Court POCSO Act cases mentioning therein, not proving the case under POCSO Act but for offences under 89 Juvenile Justice Act and 363 IPC only and in that situation the learned judge would send a notice to the victim/ complainant to make her able to protest for closure report under POCSO Act. Whereupon, if she makes a protest than the learned judge is suppose to hear and pass an appropriate order. In case, offence under POCSO Act is not found proved than he would remit the case with the direction to submit the same before an appropriate forum. 8. This Court is of the opinion that the Magistrate was not supposed to act as a post man or as a receiver, rather it was incumbent upon him to apply his independent mind. In case he feels that the negative Final Report to the extent of offence under Section 376D, 365, 342 and 34 of IPC as well as offence under Section 3/4 of POCSO Act was perfect, even then an opportunity of hearing ought to have been granted to the complainant/victim. Having not done so the learned Judicial Magistrate has indeed committed an error of law. Thus, the order dated 11.01.2024 passed by the learned Judicial Magistrate, Kolayat deserves to be set aside to the extent it relates to take cognizance of the offence. 9. As an upshot of the discussion made herein above the miscellaneous petition is allowed. The order dated 11.01.2024 passed by learned Judicial Magistrate is quashed and set aside to the extent it relates to take cognizance of offence. The order of Bail to the accused shall remain in force. The Learned Judicial Magistrate shall send the report under Section 173 Cr.P.C. back to the Station House Officer and thereafter the SHO shall submit the report in the court of Special Judge POCSO Act cases without unnecessary delay. The order of Bail to the accused shall remain in force. The Learned Judicial Magistrate shall send the report under Section 173 Cr.P.C. back to the Station House Officer and thereafter the SHO shall submit the report in the court of Special Judge POCSO Act cases without unnecessary delay. After receiving the police report, the learned Judge POCSO Act cases will provide opportunity of hearing to the victim. Whereafter only he shall pass an order on the point of cognizance. If offence under POCSO is proved than he shall proceed further in the matter as prescribed by law but if the said offence is not proved than he will return the case to the police for filing the same before the appropriate forum. It is made clear that the accused person shall remain on bail. 10. To avoid such circumstances in future it is felt appropriate that a copy of this order shall be forwarded to the Director General of Police, for issuance of directions to the Station House Officers of all the police stations across the state. Hereinafter, if a case is registered with composite charges for the offence covered under POCSO Act along with other offences in which a negative Final Report with regards to POCSO offences is chalked out then also it is necessary to forward the final report for the disposal before the Court of learned Judge POCSO Act cases and the same shall be followed by the police. This order is issued with a view to avoid such contingent situation, procedural error in future and safeguarding the rights of Victim/Complainant by providing him/her fair investigation and proper compliance of justice delivery system established on the principles of natural justice.