POCSO-S.33(1) held, lifts embargo u/s193 CrPC- Special Court empowered to take cognizance as a court of original jurisdiction, without committal of accused: Allahabad High Court

The power of a Special Court as a court of original jurisdiction in order to take cognizance of a case without committal of the accused was held by the learned bench led by HONOURABLE JUSTICE DR. YOGENDRA KUMAR SRIVASTAVA in the case of Ravi and 2 Others vs State of U.P. and 2 Others (APPLICATION U/S 482 No.- 5009 of 2021) by the High Court Of Allahabad.

This application u/s 482 of the CrPC, was filed seeking to quash the proceedings of the Criminal Case pending before the Special Judge, POCSO, as well as summoning order arising out of Case under Sections 363, 366, 376D of the Indian Penal Code and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012, in terms of which learned Judge has summoned the applicant no.1, under Sections 366, 376D of IPC and Section 5/6 POCSO Act and also summoned the applicant nos. 2 and 3, under Sections 363, 366, 376D IPC and Section 5/6 POCSO Act.

FACTS OF THE CASE- An FIR was registered u/s 363 of IPC after which the case was investigated and a police report was submitted u/s 363 against applicant no.1. Then an application was filed by the opposite party prosecutrix stating that having regard cognizance may also be taken u/s 3/4 POCSO Act and Sections 376D, 366, 363 IPC and enclosed with the affidavit and her statement recorded u/s 164 of the Code along with placing reliance on the decisions of the Supreme Court in Balveer Singh and Another vs. State of Rajasthan and Another and Dharam Pal and Others vs. State of Haryana and Another.

The magistrate after examining the application filed by the opposite party stated that the power to take cognizance in this matter would be with the Special Court under the POCSO Act and not with the Magistrate. The papers were then transmitted to the Special Court, POCSO.

COURT’S OBSERVATION- It was pointed out that FIR discloses the age of the prosecutrix to be less than 18 years and her statement recorded u/s 164 of the Code supports the FIR and is also indicative of the offense u/s 376 IPC. The court observed that there cannot be any dispute on the point that on receiving the police report u/s 173 (2) of the Code, the Magistrate was under no obligation to accept the report and it was open to him to disagree with the report and take the view that there was sufficient ground to proceed further.

The designated Special Court, upon receipt of the police report, transmitted through the Magistrate, was fully empowered to take cognizance of the offense, without the requirement of the accused being committed to it for trial.

JUDGEMENT- The application was accordingly dismissed by the Hon’ble Court of Allahabad stating that the order of summons passed by the Special Judge as well as the proceedings in the criminal case in which the quashing request was made, are in accordance with statutory provisions and therefore are not voidable.


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