Special POCSO Court Can Treat Application Filed U/S 156 (3) CrPC As A Complaint Case U/S 190 (1) (a) CrPC: Allahabad High Court

The bench of Justice Suresh Kumar Gupta observed thus:

“Concludingly, I am of the view that the trial court has ample power to treat the application under Section 156 (3) CrPC as a complaint case, therefore, in the POCSO Act proceedings of complaint case can be launched, as in this regard a statutory provision under Section 33 of the POCSO Act already exists. As per Section 33 of the POCSO Act, 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. Thus, on the perusal of the entire provisions of the POCSO Act, it appears that there is no bar for prosecution and cognizance in the matter related to the complaint under Section 190 (1) (a) CrPC”

The Court held thus while refusing to quash a summoning order issued against the Accused as well as proceedings in a POCSO Case pending before the Additional Sessions Judge/Special Judge (POCSO Act) Bahraich.

The case in brief

The opposite party no 2 (Mother of the victim) filed an application under Section 156 (3) CrPC on August 26, 2021, in the court of ASJ/Special Judge (POCSO Act) alleging that she and the accused are relatives.

She further alleged that on August 6, 2021, while his 11-year-old daughter (victim) was alone at his home, the accused entered her house and outraged her modesty, pushed her onto the earth, undressed her, and forcefully committed rape against her wishes.

The occasion to file an application under Section 156 (3) CrPC arose as the police refused to file an FIR in the case and even the SP concerned also took no action in the case.

The Court concerned treated the application as a complaint case and recorded the statement of the complainant under Section 200 CrPC and the statement of the other witnesses were also recorded under the provisions of Section 202 CrPC.

On the basis of such statements, the trial court passed the summoning order under Section 204 CrPC against the accused. Challenging the same, the Accused moved the instant plea before the HC.

The arguments raised before the Court

The counsel for the applicant raised the preliminary objection that the POCSO Court had no jurisdiction to entertain the application under Section 156 (3) CrPC as a complaint case under Section 190 (1) (a) CrPC as the only option is available to the POCSO Court to direct the concerning police station to register and investigate the matter.

It was further argued that the POCSO Court may pass the cognizance order and summoning order only on the basis of the investigation done by the Investigating Officer and the report submitted under Section 173 (2) CrPC.

In support of his submission, the Court relied upon three rulings of the Allahabad High Court wherein it was observed that the POCSO Court could not have taken cognizance of the offence on the basis of the complaint.

On the other hand, the AGA, for the state and the counsel for respondent no. 2, referred to the procedure of Section 33 (1) of the POCSO Act which says that 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 was further submitted in the case of Naresh Kumar Valmiki Vs. State of U.P. and others (2023), the HC had observed that the submission that an application under Section 156(3) CrPC. cannot be treated as a complaint case is incorrect.

High Court’s observations

So far as the question of lodging of the FIR or filing of an application under Section 156 (3) CrPC in the case of sexual harassment/POCSO Act was concerned, the Court observed that in such cases, it is the bounden duty of the police officer to lodge FIR because in the case of sexual assault, the victim faces social stigma and she has already been traumatized.

“…therefore, the court concerned should not give further burden upon the complainant/victim and the court concerned/special court should direct the police authority concerned to investigate the matter fairly. The court should pass the order for investigation, because the documentary and other evidence are generally in the physical possession of the accused or other individual and on the basis of those evidences, the police should investigate the matter and retrieve its power under the Code of Criminal Procedure,” the Court added.

Further, referring to Section 33 of the POCSO Act, the Court noted that 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.

Resultantly, the Court opined that the previous view of the HC that in the POCSO Act, cognizance cannot be taken, is not a good law.

Further, so far as quashing of entire proceedings was concerned, the Court said that from the perusal of the material on record and looking into the facts of the case at this stage, it cannot be said that no offence is made out against the petitioners.

“Every aspect is touched by learned trial court and petitioner failed to adduce any evidence which caused prejudice to him. So, the cognizance and summoning order is perfectly valid and there is no occasion to quash the same,” the Court further remarked.

Consequently, the prayer for quashing the impugned summoning order as well as impugned proceedings was refused, however, the Court did direct the trial court that if the applicant/petitioner appears before the trial court and applies for bail, then bail application shall be considered and decided in accordance with law propounded by the Apex Court in Satender Kumar Antil.

Appearances

Counsel for Applicant: Manoj Kumar Singh

Counsel for the opposite party: AGA Vijai Prakash Dwivedi, Abhishek Srivastava

Case title - Mohd. Aarif Alias Aarif vs. State Of U.P. Thru. Prin. Secy. Home, Lko. And Another 2023 LiveLaw (AB) 192 [APPLICATION U/S 482 No. - 3922 of 2023]

Case Citation: 2023 LiveLaw (AB) 192

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