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MANOJ MISRA
ASHISH KUMAR – Appellant
Versus
STATE OF U. P. – Respondent
Yes, based on the provided legal document, the order passed by the Magistrate refusing to take cognizance on the charge-sheet and returning it for presentation before the Special Court is not legally sustainable. The Magistrate should have taken cognizance of the offences mentioned in the police report and, if additional offences, including those under the Pocso Act, appeared to be made out subsequently, he could have committed the case to the appropriate Special Court under the provisions of the Code of Criminal Procedure. Returning the charge-sheet solely because it did not include offences punishable under the Pocso Act is not justified, especially when the police report did not include such offences initially (!) . The law permits the Magistrate to take cognizance of the offences in the police report and later, at the stage of framing charges, to include any other offences that may be established (!) . Therefore, the order was set aside, and the Magistrate is directed to pass a proper order in accordance with law (!) .
Hon’ble Manoj Misra, J.—Heard Learned counsel for the applicants; the learned AGA for the State; Sri Bimal Prasad for the opposite party No. 2 and perused the record.
2. In view of the order that is being passed as also the ground on which it is being passed, this Court does not consider it necessary to call for counter-affidavit. The learned counsel for the opposite parties also do not want time to file counter-affidavit as it would only delay the proceeding, particularly when the matter can be disposed of on a pure legal question.
3. Brief facts of the case are that a First Information Report was lodged by the opposite party No. 2 (victim’s father), which was registered as Case Crime No. 749 of 2014 at P.S. Rauja, district Shajahanpur, under Sections 147, 354 A, 352, 323 and 506 IPC and Sections 7/8 of The Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as Pocso Act). After investigation, the police laid charge-sheet under Sections 352, 323 and 506 IPC only. As a result, the opposite party No. 2 filed an affidavit alleging therein that on the date of the incident that is 30th October, 2014, the victim’s age was about 16 years and as she had
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