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2025 DIGILAW 1064 (ALL)

Bhavlesh v. State of U. P.

2025-08-19

SAURABH SRIVASTAVA

body2025
JUDGMENT : Saurabh Srivastava, J. 1. Heard Sri Jay Prakash Yadav, learned counsel for applicants and Sri Sandeep Kumar, learned AGA for State. 2. Present application has been preferred with prayer to quash summoning order dated 05.04.2022 as well as entire proceeding registered as Criminal Case no. 90 of 2021 (Smt. Laxmi Devi vs. Mukesh and others) arising out of Case Crime no. 0626 of 2021 under sections 328, 354, 504, 506 and 7/8 POCSO Act, PS- Loni Border, District Ghaziabad pending in court of learned Special Judge (POCSO Act), Additional District and Sessions Judge, Ghaziabad. 3. Learned counsel for applicants submitted that in present case, in pursuance to FIR bearing Case Crime no. 0626 of 2021 registered at the behest of opposite party no. 2 against applicants and another co-accused, concerned Investigating Officer submitted final report before learned court concerned. Being aggrieved with the final report, opposite party no. 2 preferred protest petition which has been allowed vide impugned order dated 05.04.2022 passed by learned Special Judge (POCSO Act)/Additional District and Sessions Judge, Ghaziabad whereby applicants have been summoned. 4. It is contended by learned counsel for applicants that once final report has been rejected while allowing the protest petition, learned Special Judge (POCSO Act)/Additional District and Sessions Judge, Ghaziabad has no authority to summon the applicants over the protest petition itself and as such impugned order is liable to be quashed and set aside. 5. Per contra, Sri Sandeep Kumar, learned AGA submitted that learned Special Judge is empowered to take cognizance by way of summoning the accused in pursuance to Section 190(1)(b) of Cr.P.C. since the learned Session Court while exercising power under Section 33(1) of POCSO Act, 2012 is conferred with all the powers available as the original powers as defined under the statue under Section 190 of Cr.P.C. It is also submitted by Sri Sandeep Kumar, learned AGA that while rejecting Final Report preferred at the behest of concerned Investigating Officer, if the documents available during course of investigating has been relied upon by learned Special Court, the power under Section 191(b) can be exercised at the time of rejecting Final Report and accepting protest petition for summoning the accused. In the instant matter, the finding recorded by learned Special Judge for rejecting Final Report and accepting protest petition was only the basis of the statement recorded by the victim under sections 161 and 164 Cr.P.C. and no other evidence has been made the basis of summoning the applicants and for proceeding with the case as State case which directly is in exercise of power under Section 191(b) Cr.P.C. 6. After hearing rival submissions extended by learned counsels for the parties and perusing the records, this Court finds that in absence of any police report which has already been rejected by learned Special Judge(POCSO Act)/Additional District and Sessions Judge, Ghaziabad at the time of accepting the protest petition preferred at the behest of victim, cognizance of offence has been taken up by learned concerned court under Section 33(1) of POCSO Act is not maintainable. For clear consideration of the issue section 33 of POCSO Act is reproduced herein below: " Section 33 of POCSO Act, 2012 - 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. (2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in- chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child. (3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial. (4) The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court. (5) The Special Court shall ensure that the child is not called repeatedly to testify in the court. (6) The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial. (5) The Special Court shall ensure that the child is not called repeatedly to testify in the court. (6) The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial. (7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial: Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child. Explanation.--For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed. (8) In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child. (9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session." 7. By plain reading of Section 33(1) of POCSO Act, it specifically deals with the power conferred to the Special Judge, POCSO Act, to take cognizance of offence only on two basis, firstly complaint, secondly on police report. In the instant matter, once the police report in shape of final report submitted by concerned Investigating Officer has been rejected and the protest petition preferred at the behest of informant/victim has been allowed, the scope available before learned Special Judge is only to treat the matter as Complaint Case and the summoning of the applicant might be ensured after consideration of the statements recorded under sections 200, 202 Cr.P.C and as such impugned order dated 05.04.2022 is not sustainable in the eye of law and is hereby set aside. 8. The instant application u/s 482 Cr.P.C. stands allowed accordingly. 9. 8. The instant application u/s 482 Cr.P.C. stands allowed accordingly. 9. However, it is made clear that this order will not preclude, learned Special Judge(POCSO Act)/Additional District and Sessions Judge, Ghaziabad to proceed against the applicants by way of treating the matter as Complaint Case and the summoning of the applicants shall be dependent upon the free set of judicious conscious of court concerned after recording statements under sections 200/202 Cr.P.C.