Neutral Citation No. - 2023:AHC:121629

Court No. - 81

Case :- CRIMINAL APPEAL No. - 5265 of 2023

Appellant :- Rajendra Vishwakarma @ Rajendra Sharma And

Another

Respondent :- State of U.P. and Another

Counsel for Appellant :- Pratibha Jaiswal

Counsel for Respondent :- G.A.

Hon'ble Mohd. Faiz Alam Khan,J.

Heard Ms. Pratibha Jaiswal, learned counsel for the appellants

as well as learned Additional Government Advocate for the

State only on the question of maintainability and jurisdiction of

this Court and perused the record.

The instant appeal under Section 14-A (1) of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

has been filed by the appellants, Rajendra Vishwakarma @

Rajendra Sharma and Kunti Devi with the prayer to quash

the impugned cognizance/ summoning order dated 6.1.2023

passed by learned Additional Sessions Judge/ Special Judge

(POCSO Act), Sonbhadra, impugned charge sheet dated

20.12.2022 as well as entire proceeding of Session Case No. 12

of 2023 (State Vs. Pradeep Kumar Vishwakarma), arising out of

Case Crime No. 130 of 2022, under Sections 147, 504, 506 IPC

and Sections 3(2)5 Ka & 3(1)Da & Dha of SC/ST Act, Police

Station Pipri, District Sonbhadra, pending before the learned

Additional Sessions Judge/ Special Judge (POCSO Act),

Sonbhadra.

Learned counsel for the appellants submits that the appellants in

this case are challenging the cognizance taken/ summoning

order passed by the Additional Session Judge/ Special Judge

POCSO Act of date 6.1.2023 passed on the charge sheet

submitted by the Investigating Officer under the relevant

provisions of the SC/ST Act and relevant provisions of POCSO

Act.

Learned AGA at the outset submits that summoning order

passed by the Special Court constituted under POCSO Act may

not be challenged by filing an appeal under Section 14-A of the

SC/ST Act and the remedy which is available to the appellants

is by challenging the summoning order by taking recourse to

any other remedy available to them under the law.

Having heard learned counsel for the parties the question which

falls for consideration of this Court is when the charge sheet has

been filed under the provisions of the Protection of Children

from the Sexual Offences, Act 2012 (herein after called

'POCSO Act') as well as under the provisions of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989 (herein after referred to as the SC/ST Act) and the

cognizance has been taken by the Special Court constituted

under the POCSO Act and the accused persons have been

summoned, whether an appeal under Section 14-A of the SC/ST

Act would lie or the accused persons may take remedy having

regard to the normal procedure provided under Cr.P.C., to

challenge the summoning order passed by Special Court

constituted under POCSO Act.

While considering the legal issue raised before this Court, it is

to be borne in mind that if the provisions of POCSO Act would

prevail then the appellants are entitled to challenge the

summoning order passed by Special Court constituted under

POCSO Act by adopting normal course and the procedure

provided in the Code of Criminal Procedure and if the

provisions of SC/ST Act would prevail then the summoning

order passed may only be challenged by filing an appeal under

Section 14-A of the SC/ST Act.

A perusal of the SC/ST Act and POCSO Act would reveal that

the SC/ST Act is enacted on 30.1.1990 while the POCSO Act

was enacted on 19.6.2012. Section 20 of the SC/ST Act deals

with overriding effect of the said statute, while Section 42 A of

the POCSO Act introduced with effect from 3.2.2013 refers to

the overriding effect of that statute. Section 31 of the POCSO

Act provides for application of the Cr.P.C. Thus both statutes

have provisions which provides an overriding effect.

The above provisions for ready reference are mentioned below:-

Section 31 of the POCSO