A Special Judge under the POCSO Act cannot summon an accused solely based on a protest petition after a police report has been rejected; proper cognizance must follow the statutory procedures.

JUDGMENT :

Saurabh Srivastava, J.

1. Heard Sri Jay Prakash Yadav, learned counsel for applicants and Sri Sandeep Kumar, learned AGA for State.

2. Present application has been preferred with prayer to quash summoning order dated 05.04.2022 as well as entire proceeding registered as Criminal Case no. 90 of 2021 ( Smt. Laxmi Devi vs. Mukesh and others ) arising out of Case Crime no. 0626 of 2021 under sections 328, 354, 504, 506 and 7/8 POCSO Act, PS- Loni Border, District Ghaziabad pending in court of learned Special Judge (POCSO Act), Additional District and Sessions Judge, Ghaziabad.

3. Learned counsel for applicants submitted that in present case, in pursuance to FIR bearing Case Crime no. 0626 of 2021 registered at the behest of opposite party no. 2 against applicants and another co-accused, concerned Investigating Officer submitted final report before learned court concerned. Being aggrieved with the final report, opposite party no. 2 preferred protest petition which has been allowed vide impugned order dated 05.04.2022 passed by learned Special Judge (POCSO Act)/Additional District and Sessions Judge, Ghaziabad whereby applicants have been summoned.

4. It is contended by learned counsel for applicants that once final report has been rejected while allowing the protest petition, learned Special Judge (POCSO Act)/Additional District and Sessions Judge, Ghaziabad has no authority to summon the applicants over the protest petition itself and as such impugned order is liable to be quashed and set aside.

5. Per contra, Sri Sandeep Kumar, learned AGA submitted that learned Special Judge is empowered to take cognizance by way of summoning the accused in pursuance to Section 190 (1)(b) of Cr.P.C. since the learned Session Court while exercising power under Section 33 (1) of POCSO Act, 2012 is conferred with all the powers available as the original powers as defined under the statue under Section 190 of Cr.P.C. It is also submitted by Sri Sandeep Kumar, learned AGA that while rejecting Final Report preferred at the behest of concerned Investigating Officer, if the documents available during course of investigating has been relied upon by learned Special Court, the power under Section 191(b) can be exercised at the time of rejecting Final Report and accepting protest petition for summoning the accused. In the instant matter, the finding recorded by learned Special Judge for rejecting Final Report and accepting protest petition was only the basis of the statement recorded by the victim under sections 161 and 164 Cr.P.C. and no other evidence has been made the basis of summoning the applicants and for proceeding with the case as State case which directly is in exercise of power under Section 191(b) Cr.P.C.

6. After hearing rival submissions extended by learned counsels for the parties and perusing the records, this Court finds that in absence of any police report which has already been rejected by learned Special Judge(POCSO Act)/Additional District and Sessions Judge, Ghaziabad at the time of accepting the protest petition preferred at the behest of victim, cognizance of offence has been taken up by learned concerned court under Section 33 (1) of POCSO Act is not maintainable. For clear consideration of the issue section 33 of POCSO Act is reproduced herein below:

" Section 33 of POCSO Act, 2012 - Procedure and powers of Special Court:

(1) 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.

(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the e