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 alleged molestation, etc. in her statement, offences punishable under Sections 147 and 354 A IPC as also Sections 7/8 of Pocso Act were also made out. Upon receiving such affidavit, the learned Magistrate perused the police report and passed the impugned order dated 19.3.2015 thereby directing return of the charge-sheet for being laid before the Special Court constituted under the Pocso Act. In the order impugned it was observed that from the material available in the case diary offences punishable under Sections 323, 353, 354 and 506 IPC and Sections 7/8 of Pocso Act were, prima facie, made out, but as it was not empowered to take cognizance of the offences punishable under the Pocso Act, therefore, the charge-sheet is to be returned for presentation before the Special Court.

4. The applicants before this Court are the accused in the said case.

5. Assailing the impugned order, the learned counsel for the applicants submitted that at the stage of taking cognizance, the learned Magistrate ought to have taken cognizance of the offences for which the charge-sheet was laid, although, at a later stage, if he had come to a conclusion that other offences exclusively triable by a Court of Session or a Special Court constituted under the Pocso Act were also made out, he could have committed the case either under Section 209 of the Code of Criminal Procedure (hereinafter referred to as the Code) or under Section 323 of the Code. It has been submitted that returning the charge-sheet for being presented before the Special Court was not legally justified.

6. To support the aforesaid contention attention of the Court was invited to the provisions of the Pocso Act so as to demonstrate that a Special Court is deemed to be a Court of Session, therefore, under Section 209 of the Code there can be a commitment to the Special Court as well. It has been submitted that Section 28 of the Pocso Act, 2012 provides that there shall be a Special Court notified to try the offences under the Pocso Act. It has been submitted that though Section 33 of the said Act provides 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 but there is no such provision that the Special Court alone can take cognizance of an offence punishable under the said Act. It has been submitted that in any view of the matter the Court of Magistrate is competent to take cognizance of any offence even though the offence may be triable by a Court of Session. It has also been submitted that by virtue of Sections 31 and 33 of Pocso Act the Special Court is deemed to be a Court of Session and the provisions of the Code are applicable to it. Meaning ther