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IN THE HIGH COURT OF ALLAHABAD
YOGENDRA KUMAR SRIVASTAVA, J.
Ravi and Others - Applicants
Versus
State of U.P. and Others - Opposite Parties
Application U/s 482 No. 5009 of 2021
Decided On : 16-12-2021
Indian Penal Code, 1860 - Section 376D, 366, 363 - Code of Criminal Procedure, 1973 - Sections 173 (2), 193, 319, 465 and 482 - POCSO Act - Section 3/4 - Offence of Kidnapping and gang Rape - Commitment of case to Court of Session when offence is triable exclusively by it - Procedure in inquiries preparatory to commitment - Seeking quash entire proceedings of Criminal Case as well as summoning order - Prior to taking cognizance an application was filed by opposite party prosecutrix stating that having regard to facts of case, cognizance may also be taken under Section 3/4 POCSO Act and Section 376D, 366, 363 IPC - Whether act of Magistrate in transmitting record of case to Special Court and order of cognizance and issuance of process having been passed thereupon by Special Court can be said to have occasioned any "failure of justice", even assuming that there was an error or irregularity in procedure, as alleged on behalf of applicants.
Finding of the Court:
Court to take cognizance of any offence, without accused being committed to it for trial, marks a departure from general procedure under Code and in particular Section 193 thereof which stipulates that Court of Session cannot take cognizance of any offence as a court of original jurisdiction unless case has been committed to it by Magistrate under Code - procedure provided under Section 33 (1) with regard to power of Special Court to take cognizance without any committal of accused, to extent of any inconsistency, would override general provisions under Code, by virtue of provisions under Section 42-A read with Section 31 of POCSO Act - Police report relating to facts constituting an offence under POCSO Act having been placed before Special Court, upon being transmitted by Magistrate, Special Court was fully empowered to take cognizance of offence as per powers and procedure under Section 33 (1), without requirement of committal of accused - Diminished role of committing court under Code 1973 while committing case to Court of Session; particularly when a case is instituted on basis of a police report and it appears to Magistrate that offence is triable exclusively by Court of Session, would also be a reason to arrive at an inference that irregularity in procedure - Quashment is sought, being in accord with scheme of statutory enactment, cannot be said to suffer from any illegality so as persuade this Court to exercise its inherent jurisdiction under Section 482 of Code.
Result: Application dismissed
The legal document discusses the procedure for taking cognizance of offences under the POCSO Act in relation to the general provisions of the Criminal Procedure Code (CrPC). It clarifies that the procedure under Section 33(1) of the POCSO Act authorizes the Special Court to take cognizance of offences without the need for the accused to be committed for trial, which departs from the usual process outlined in the CrPC (!) (!) . This special provision, supported by the deeming clause, overrides the general requirement of committal and the procedures under Sections 193, 207, and 209 of the CrPC, to the extent of any inconsistency (!) (!) .
The document emphasizes that the provisions of the POCSO Act, particularly Sections 31 and 42-A, establish that the Act is in addition to and overrides conflicting provisions of the CrPC or other laws, ensuring that the special procedures for offences involving children are prioritized (!) (!) . The Special Court, once empowered under Section 33(1), can directly take cognizance based on a police report or complaint, without the need for prior committal by a Magistrate (!) (!) .
It also discusses the role of the Magistrate during the process, noting that the Magistrate's role is limited to assessing whether the offence is triable exclusively by the Court of Session and whether the facts disclosed in the police report or complaint warrant proceeding further (!) (!) . If the Magistrate finds that the case involves an offence triable by the Special Court under the POCSO Act, they are required to transmit the record to the designated Special Court, which then has the authority to proceed directly (!) (!) .
Furthermore, the document clarifies that irregularities or procedural errors, such as taking cognizance without strict adherence to the usual procedures, do not necessarily vitiate the proceedings or constitute a failure of justice unless such irregularities have caused prejudice or injustice (!) (!) . The overarching principle is that procedural lapses that do not impact the substantive fairness of the trial or cause prejudice to the accused are not grounds for quashing proceedings or reversing judgments.
In summary, the statutory scheme under the POCSO Act provides for a streamlined process where the Special Court can take immediate cognizance of offences without the usual requirement of prior committal, and this process is intended to facilitate speedy trials and protect the interests of children. Procedural irregularities that do not result in a failure of justice are generally not sufficient to invalidate the proceedings.
JUDGMENT :
1. Heard Sri Sudhir Dixit, alongwith Sri Anupam Shyam Dwivedi, Sri Utakarsh Dixit and Sri Shobhit Pratap Singh learned counsel for the applicants, Sri Vinod Kant, learned Additional Advocate General assisted by Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-opposite party no.1 and Sri Rajneesh Pratap Singh appearing alongwith Sri Ajit Kumar, learned counsel for the opposite party no.3.
2. The present application under Section 482 of the Code of Criminal Procedure, 1973, [The Code] has been filed seeking to quash the entire proceedings of Criminal Case No.2377 of 2020 pending before the Special Judge, POCSO, Aligarh as well as summoning order dated 17.10.2020 arising out of Case Crime No.428 of 2019, under Sections 363, 366, 376D of the Indian Penal Code, [Penal Code] and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012, [POCSO Act], Police Station Khair, District Aligarh in terms of which learned Judge has summoned the applicant no.1, under Sections 366, 376D 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, Police Station Khair, District Aligarh.
3. Pleadings in the case indicate that the proceedings were commenced pursuant to an FIR dated 02.09.2019, registered as Case Crime No.428/2019, under Section 363 IPC, Police Station Khair, District Aligarh, whereupon the case was investigated and a police report dated 04.06.2020 was submitted, under section 363 IPC, only against the applicant-no.1. Prior to taking cognizance an application was filed by the opposite party no.3-prosecutrix stating that having regard to the facts of the case, cognizance may also be taken under Section 3/4 POCSO Act and Section 376D, 366, 363 IPC and enclosing therewith her affidavit and her statement recorded under Section 164 of the Code and placing reliance on the decisions of the Supreme Court in Balveer Singh and Another vs. State of Rajasthan and Another, (2016) 6 SCC 680 and Dharam Pal and Others vs. State of Haryana and Another, (2014) 3 SCC 306.
4. The learned Magistrate upon examining the papers, placed alongwith the application filed by the opposite party no.3-prosecutrix, took the view that looking to the offences disclosed in the application the power to take cognizance in the matter would be with the Special Court constituted under the POCSO Act and not with the Magistrate and in view thereof the papers were transmitted to the Special Court, POCSO, Aligarh. The case was thereafter taken up by the Special Judge, POCSO and taking into consideration the facts of the case, hearing the parties concerned and also examining the legal position, the Special Judge, POCSO vide order dated 17.10.2020 directed registration of the case and issuance of summons to the applicants herein. It is at this stage that the present application under Section 482 of the Code has been filed seeking quashing of the entire proceedings of the criminal case and also the summoning order dated 17.10.2020 passed by the Special Judge, POCSO.
5. Learned counsel for the applicants has sought to assail the order passed by the Special Judge, POCSO in terms of which the applicants have been summoned and also quashing of the proceedings by submitting as under :-
5.1 The learned Magistrate while passing the order dated 16.09.2020 has neither taken cognizance of the offence as per the provisions under section 190 (1) of the Code nor committed the case after following the procedure under Sections 207 and 209 of the Code and in this manner the Magistrate has adopted a procedure which is not provided for under the Code. In this regard he has placed reliance on the judgment in the case of Minu Kumari and another vs. State of Bihar and others, (2006) 4 SCC 359.
5.2. It is pointed out that upon receiving the police report under section 173 (2) of the Code, the options available to the Magistrate were either to: (i) accept the report and ta
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