In a recent ruling, the Allahabad High Court stated that a Special POCSO Court has the power to treat an application filed under Section 156 (3) of the CrPC as a complaint case under Section 190 (1) (a) of the CrPC.
Brief Facts:
On August 26, 2021, the second party (the victim's mother) submitted an application in the court of ASJ/Special Judge (POCSO Act) invoking Section 156 (3) of the Criminal Procedure Code (CrPC). The application claimed that the accused and the applicant are relatives. According to her statement, she also claimed that on August 6, 2021, when her 11-year-old daughter (the victim) was alone at their residence, the accused unlawfully entered the house. He proceeded to violate her dignity, forcefully pushing her to the ground, undressing her, and committing.
The need to submit an application under Section 156 (3) of the Criminal Procedure Code (CrPC) arose due to the refusal of the police to register an FIR in the case, and even the concerned Superintendent of Police (SP) failed to take any action. The court treated the application as a complaint case and recorded the statements of the complainant and other witnesses. Based on these statements, the trial court issued a summoning order against the accused. The accused subsequently filed a plea challenging this order before the High Court.
Contentions of the Applicant:
The applicant's counsel objected, stating that the POCSO Court lacked jurisdiction to entertain the application under Section 156 (3) CrPC as a complaint case under Section 190 (1) (a) CrPC. They argued that the POCSO Court's only option is to direct the relevant police station to register and investigate the matter. Additionally, they contended that the POCSO Court can issue a cognizance order and summoning order solely based on the investigation conducted by the Investigating Officer and the report submitted under Section 173 (2) CrPC.
Contentions of the Respondent:
The AGA representing the state and the counsel for respondent no. 2 referred to Section 33(1) of the POCSO Act, which states that a Special Court can take cognizance of an offense based on a complaint or a police report, without the accused being committed to it for trial. They also mentioned a previous case, Naresh Kumar Valmiki Vs. State of U.P. and others (2023), where the HC observed that the argument claiming that an application under Section 156(3) CrPC cannot be considered a complaint case is incorrect.
Observations of the Court:
Regarding the lodging of an FIR or filing an application under Section 156 (3) CrPC in cases of sexual harassment/POCSO Act, the Court emphasized that it is the responsibility of the police officer to promptly file an FIR. This is crucial because victims of sexual assault face social stigma and have already experienced trauma. The Court also referred to Section 33 of the POCSO Act, which allows a Special Court to take cognizance of an offense based on a complaint or a police report without the accused being committed to trial.
The Court concluded that the previous stance of the High Court, which stated that cognizance cannot be taken under the POCSO Act, is no longer valid. Additionally, after examining the available evidence and considering the facts of the case, the Court determined that it cannot be concluded at this stage that no offense has been committed by the petitioners. Consequently, the request to dismiss the summoning order and the ongoing proceedings was denied. However, the Court did instruct the trial court to consider and decide the bail application of the applicant/petitioner in accordance with the legal principles established by the Supreme Court in the case of Satender Kumar Antil.
The decision of the Court:
The Allahabad High Court disposed of the application under Section 482 Cr.P.C.
Case Title: Mohd. Aarif Alias Aarif vs. State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
Coram: Hon’ble Justice Suresh Kumar Gupta
Case no.: APPLICATION U/S 482 No. - 3922 of 2023
Advocate for the Applicant: Manoj Kumar Singh
Advocate for the Respondent: - G.A.,Abhishek Srivastava
Read Judgment @LatestLaws.com
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