Cognizance under POCSO Act requires a valid police report or complaint; reliance solely on victim's statement is insufficient if the applicant is not named in the charge sheet.

JUDGMENT :

Saurabh Srivastava,J.

1. Heard Sri Aryan Srivastava, learned counsel appearing on behalf of applicant and learned AGA for State.

2. Present application has been preferred with prayer to set aside the impugned cognizance/summoning order dated 7.10.2024 passed by learned Special Judge, POCSO Act/Additional Sessions Judge, Bareilly as well as entire proceedings arising out of Case Crime no. 375 of 2024 (State vs. Arun & another) under sections 70(2), 89, 123, 351(3) of BNS and 4(2), 5(j)(ii)/6 and 5(1)/6 of POCSO Act, 2012, PS- Aonla, District Bareilly, pending in court of Special Judge, POCSO Act/Additional Sessions Judge, Bareilly.

3. It is the case of the applicant that after institution of case at Case Crime no. 375 of 2024 which culminated into conduction of the detailed investigation by concerned Investigating Officer who preferred charge sheet in pursuance to sections 123/65(1)/351(3)/89 of Bhartiya Nyaya Sanhita (in short "BNS"), 2023 and 4(2) of Protection of Children From Sexual Offences Act, 2012 only against one Arun son of Mahesh and the applicant has been exonerated at the time of preferring charge sheet. But later on, once, charge sheet along with entire Case Diary has been put before learned court of Special Judge, POCSO Act, 2012 by taking cognizance of offence, applicant has been summoned on the basis of the statement recorded by the victim herself under Section 183 BNS, 2023 in pursuance to Section 70(2), 89, 123, 351(3) of BNS, 2023 and Section 4(2), 5(j)(ii)/6, 5(l)/6 of POCSO Act, 2012.

4. Learned counsel for the applicant submitted that the summoning of the applicant once, not implicated in the charge sheet is bad in the eye of law since provision available under Section 210 of Bhartiya Nagrik Suraksha Sanhita (in short "BNSS"), 2023 shall apply in mutatis mutandis while taking cognizance by learned court of Session under Section 213 of BNSS, 2023 but at the same time, applicability of the Special Act, i.e. the Protection of Children from Sexual Offences Act, 2012 wherein the procedural power of Special Court in respect of taking cognizance of offence is mentioned under Section 33 and it has been mentioned that Special Court may take cognizance of any offence without the accused being committed for trial, upon receiving a complaint of facts which constitute such offence or upon a police report of such facts and as such the scope available under Section 210 of BNSS, 2023 which automatically covered under Section 213 of BNSS, 2023 is not available in respect of Section 210(1)(c) of BNSS, 2023 wherein the cognizance of offence can be taken up upon information received from any person other than a police officer, or "upon his own knowledge".

5. Learned counsel for the applicant submitted that the word knowledge has been derived in the instant matter from the statement recorded under Section 183 BNSS, 2023 which might be in judicious conscious applied by learned Sessions Court being a Special Court for taking cognizance of offence in pursuance to the Protection of Children from Sexual Offences Act, 2012 but at the same time it is apparent error of law on face of record that while exercising power vested under Section 33 of POCSO Act, 2012 there is no scope for exercising power vest with Section 210 which is applicable under Section 213 of BNSS, 2023 also, since section 33 of POCSO Act, 2012 deals only with the taking cognizance of offence in respect of receiving a complaint of fact which constitutes such offences or upon a police report of such facts and there is hardly any word available "upon his own