[POCSO] POCSO Court Has Ample Power To Treat An Application Under Section. 156(3) Cr.P.C. As A Complaint Case: Supreme Court

Hon’ble Supreme Court has observed that the POCSO Court being a Special Court is completely empowered to entertain an application under S. 156(3) Cr.PC as a complaint case in S. 190 (1) (a) Cr.PC and after taking cognizance the Special Court can initiate the proceedings of complaint case.

BRIEF FACTS OF THE CASE

The present case is related to the alleged rape of a minor girl. Mother of the minor girl on failure of action from Police made an application under S. 156(3) of Cr.PC to the POCSO Court. The POCSO Court considering the application as a complaint case issued the summoning order after recording the statement of victim, complainant and witnesses against the accused. Upon that the applicant-accused made an application under S. 482 Cr.PC for quashing the summoning order.

CONTENTION OF APPLICANT

The preliminary objections made by the learned Counsel for the applicant that the POCSO Court is not empowered to entertain the application under S. 156(3) Cr.PC as a complaint case under S. 190 (1) (a) Cr.PC.

Further he quoted S.19 & S.21 of the POCSO Act as to mention the procedural flaws made by Special Court that the Court has no power to treat the application under Section 156 (3) Cr.PC as complaint case and it can only pass the summoning order after the investigation done by Police upon the report submitted under S 173(2) Cr.PC. To support his argument the counsel for the applicant relied on the observations made in Soni Vs. State of U.P. and Anand Vs. State of U.P. that POCSO Court cannot take cognizance on the basis of complaint.

CONTENTION OF THE OPPOSITE PARTY

Learned AGA and learned Counsel for the respondent mother contented that as per the procedure laid down in S. 33(1) of the POCSO Act, the POCSO Court in either case whether on receiving complaint or on police report can take cognizance of any such offence. Further it was submitted that the Special Court applying its discretion considers the application under S. 156(3) Cr.PC as a complaint case and could pass the appropriate orders.

HON’BLE COURT’S OBSERVATIONS

Firstly the Hon’ble Supreme Court in its order expressed her view over the lodging of FIR in the matter of sexual harassment that it is the mandatory duty of the Police to register the case in such matters. Furthermore, it was expressed that under the mandate of S. 154 Cr.PC Police has no option to apply any discretion in registering FIR if the information received discloses the commission of cognizable offence.

Further the Hon’ble Supreme Court on the basis of submissions made by the learned counsel for the both side held,

“Concludingly, I am of the view that the trial court has ample power to treat the application under Section 156 (3) Cr.P.C. as a complaint case, therefore, in the POCSO Act proceedings of complaint case can be launched, as in this regard a statutory provisions under Section 33 of the POCSO Act already exists. As per Section 33 of the POCSO Act, 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.”

The bench of Hon’ble Justice Suresh Kumar Gupta considered the cognizance taken by POCSO Court and summoning order issued as totally justiciable and refused to quash the same.

Law points Involved

• 156(3) Cr.PC : Any Magistrate who is empowered to take cognizance under Section 190 of Code may order investigation for the cognizable offence.
• 190 (1) (a) Cr.PC : Cognizance of offences by magistrates upon receiving a complaint of facts which constitute such offence.
• 19 POCSO Act : Reporting of Offences
• 21 POCSO Act: Punishment for failure to report or record a case

CASE TITLE : Mohd. Aarif Alias Aarif vs State of U.P. and Another

APPLICATION U/S 482 No. : 3922 of 2023

ORDER DATE: 23.05.2023