Case title:
Mohd. Aarif Alias Aarif vs State Of U.P Thru. Prin. Secy. Home, Lko. And Another
Date of Order:
23.5.2023
Bench:
Hon'ble Suresh Kumar Gupta, J.
Parties:
Appellant - Mohd. Aarif Alias Aarif
Respondent - State Of U.P Thru. Prin. Secy. Home, Lko. And another.
SUBJECT
POCSO stands for Protection of Children from Sexual Offences. It is an Act enacted by the Indian Parliament in 2012. The Act is intended to protect children from sexual abuse, exploitation, and harassment. It covers a wide range of sexual offenses against children, including sexual assault, sexual harassment, and pornography. The POCSO Act defines a child as any person below the age of 18 years. The Act makes it mandatory for all sexual offenses committed against a child to be reported to the police. It also mandates the establishment of special courts to deal with cases of child sexual abuse. The Act provides for the appointment of special public prosecutors to conduct cases under the Act.
IMPORTANT PROVISIONS
Code of Criminal Procedure 1973
- · Section 482
- · Section 156 (3)
- · Section 190 (1) (a)
Protection of Children from Sexual Offences Act
- Section 5 (m)/6
- Section 33
OVERVIEW
- Respondent No.2 alleged that the appellants are their relatives and moved an application under Section 156 (3) Cr. P.C. before the POCSO court, Bahraich.
- The application stated that Petitioner and his family members used to come to the respondent's house when their minor daughter, aged 11, was alone at the home.
- The petitioner entered the house and outraged the modesty of the minor girl and forcefully committed rape on her, and extended abuses and threats of life if she told about the same to anyone.
- The respondent, upon knowing this, provided the information to Police Station-Hardi on the same day, but no action was taken. The application was moved to the Superintendent of Police, Bahraich. However, the status remained the same.
- Following this, the application was moved to the trial court, where it was considered a complaint case.
- The present application under Section 482 of Cr.P.C. has been filed against the impugned summoning order passed by/pending in the court of learned Additional Sessions Judge/Special Judge (POCSO Act) Bahraich.
ISSUE RAISED
- Whether the trial court has the power to treat an application under Section 156 (3) Cr.P.C. as a complainant case?
ARGUMENTS ADVANCED BY THE APPELLANT
- Advocate Manoj Kumar Singh represented the applicants.
- The counsel contended that the POCSO Court had no jurisdiction to entertain the application under Section 156 (3) Cr.P.C.
- According to the counsel, the POCSO Court can only pass the cognizance order and summoning order based on the investigation conducted by the Investigating Officer and the report submitted under Section 173 (2) Cr.P.C.
- Reliance was placed on Soni Vs. The state of U.P. and ten others [No. 12864 of 2021] held that the POCSO Act is a special act similar to the S.C./S.T. Act. Hence, the trial court has no authority to treat the application under Section 156 (3) Cr.P.C. as a complaint case.
- He further cited the case Ram Karan Vs. State of U.P. and four others [Criminal Revision No. 1052 of 2022] to submit that the grievance of the revisionist was the same as raised by the applicant in the present case, and in that revision, proceedings against the revisionist were stayed based on the principles laid down in Soni Vs. State of U.P. and 10 others (Supra).
- Lastly, counsel for the applicant submitted that only F.I.R. can be lodged against the applicant, and a complaint case cannot be lodged.
ARGUMENTS ADVANCED BY THE RESPONDENT
- G.A., Abhishek Srivastava represented the respondents.
- The counsel contended that a Special Court could exercise its judicial discretion to treat the application as a complaint case.
- The counsel cited the case Naresh Kumar Valmiki vs. State of U.P. and others [(2023) 241 AIC 946], where it was held that the submission of an application under Section 156(3) Cr.P.C. cannot be treated as a complaint case is incorrect.
- The counsel submitted that in sexual harassment cases, the police have a binding duty to file the F.I.R. as the victims are already traumatized and face social stigma.
JUDGEMENT ANALYSIS
- The Hon'ble Allahabad High Court disposed of the present application.
- The court viewed that a cognizance/summoning order may be passed against the applicant in the complaint case.
- It was held that the trial court has enough power to treat the application under Section 156 (3) Cr.P.C. as a complaint case. Section 33 of the POCSO Act was interpreted to state that Upon receiving a complaint of facts constituting the offense or upon receiving a police report of such facts, a Special Court may take cognizance of the offense without committing the accused to trial.
- The court ruled that there is no bar to treating the application under Section 156 (3) Cr.P.C. as a complaint case under Section 190 (1) (a) Cr.P.C. and this, according to the court, was a settled law.
- Reliance was placed on the case Satender Kumar Antil Vs. Central Bureau of Investigation and another [Special Leave to Appeal (Crl.) No.5191 of 2021] to state that if the applicant appears before the trial court and applies for bail, then bail application shall be considered.
CONCLUSION
According to Section 156(3) of the CrPC, an investigation for the cognizable offense may be ordered by a Magistrate authorized to take cognizance under Section 190 of the Code. The preliminary question of law for deliberation, in this case, was whether a trial court had the authority to treat an application under Section 156(3). The Allahabad High Court ruled that trial courts have ample power to consider a matter under Section 156(3). Furthermore, it was stated that there is no bar to prosecution and cognizance in the matter related to the complaint under Section 190 (1) (a) Cr. P.C. under the POCSO Court.
