Md. Maksud v. The State of Jharkhand

: Mr. Sanjeev Kumar, Sr. Advocate : Mr. Shadab Ansari, Advocate : Mr. Imran Ansari, Advocate : Mr. V.K. Vashistha, Spl. P.P. : Mrs. Amrita Kumari, Addl. P.P. : Mr. H.K. Shikarwar, Advocate ….. By the Court:-

2. Heard the parties. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 04.07.2023 passed by the learned Special Judge, POCSO Act Cases, Hazaribagh by which order the learned Special Judge, POCSO Act Cases, Hazaribagh has taken cognizance of the offences punishable under Section 376 (3), 354D and 506 of Indian Penal Code and under Section 4 of POCSO Act. Cr.M.P. No.2521 of 2023 1

5. The brief fact of the case is that a written report was submitted by the victim, upon which Hazaribagh Mahila & Bal Sanrakhyan Barhi P.S. Case No. 12 of 2022 was registered and police took up investigation of the case. After completion of investigation, police exonerated the petitioner who was the accused person of the case finding the allegation to be not true. Learned Special Judge, POCSO Act Cases, Hazaribagh issued notices to the informant. The informant filed a protest-cum- complaint petition. The same was numbered as Protest-cum- Complaint Case No.68 of 2023. The learned Special Judge, POCSO Act Cases, Hazaribagh though registered the complaint case but did not follow the procedure prescribed under Section 200 and 202 of Code of Criminal Procedure but still found sufficient material to prima facie constitute the offence punishable under Sections 376 (3), 354D and 506 of Indian Penal Code and under Section 4 of POCSO Act and took cognizance of the said offences.

6. Learned Senior Advocate appearing for the petitioner drawing attention of this Court to Section 33 (1) of the Protection of Children from Sexual Offences Act, 2012 which reads as under:-

33. 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. (Emphasis supplied) Cr.M.P. No.2521 of 2023 2 submits that a Special Court may take cognizance of any offence either upon receiving the complaint of facts which constitute such offence or upon a police report of such facts and not on both.

7. It is next submitted by the learned Senior Advocate appearing for the petitioner that as has been held by the Hon’ble Supreme Court of India in the case of Bhagwant Singh vs. Commissioner of Police & Anr. reported in (1985) 2 SCC 537 that if the police report submitted under Section 173 of Code of Criminal Procedure state that in the opinion of the police no offence appears to have been committed, the Magistrate or in this case the learned Special Judge, POCSO Act Cases, Hazaribagh has the option to adopt one of the three courses (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under Section 156 (3) Cr.P.C. but in case if the learned Magistrate decides that there is no sufficient ground for proceeding further and drop the proceeding then in such case only the informant must be given an opportunity of being heard so he can make his submission to persuade the learned Magistrate to take cognizance of the offence and issue process but in this case the undisputed fact remains that the learned Special Judge, POCSO Act Cases, Hazaribagh has issued notice so this goes to show that the learned Special Judge, POCSO Act Cases, Hazaribagh has made up his mind to accept the report and drop the further proceeding but even though a protest-cum-complaint petition was filed and the Cr.M.P. No.2521 of 2023 3 same has been numbered but without following the procedure prescribed under Section 200 and 202 of Code of Criminal Procedure, the learned Special Judge, POCSO Act Cases, Hazaribagh has taken cognizance; hence, such cognizance order is not sustainable in law.

8. Relying upon paragraph no.42 of the judgment of Hon’ble Supreme Court of India in the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh through Secretary Home, Civil Secretariat, Lucknow & Anr. reported in (2019) 8 SCC 27 which reads as under:- the basis of “42. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, we cannot support the decision of the High Court.” (Emphasis supplied) Cr.M.P. No.2521 of 2023 4

9. It is submitted by the learned Senior Advocate appearing for the petitioner that the impugned order passed by the learned Special Judge, POCSO Act Cases, Hazaribagh is not in consonance with the principle of law settled. Hence, it is submitted that the order dated

04.07.2023 passed by the learned Special Judge, POCSO Act Cases, Hazaribagh being not sustainable in law be quashed and set aside.

10. Learned Special Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand opposes the prayer to quash the order dated 04.07.2023 passed by the learned Special Judge, POCSO Act Cases, Hazaribagh and submits that it is not necessary that a protest petition if filed has to be treated as a complaint and the Magistrate may not treat the same as a complaint. Hence, no illegality has been committed by the learned Special Judge, POCSO Act Cases, Hazaribagh and therefore this criminal miscellaneous petition being without any merit be dismissed.

11. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that as rightly submitted by the learned Senior Advocate appearing for the petitioner that the very fact that the learned Special Judge, POCSO Act Cases, Hazaribagh has issued notice to the informant upon receipt of the final report; goes to show that he made up his mind to accept the report and drop the proceeding or else there was no necessity of issuing the notice to the informant. The very fact that protest cum complaint petition has been numbered as Protest Cum Complaint Case No. 68 of 2023 as is evident from Annexure-4 of this criminal miscellaneous petition. So, this Court has no hesitation in Cr.M.P. No.2521 of 2023 5 holding that the learned Special Judge, POCSO Act Cases, Hazaribagh has treated the protest petition as a complaint. Once the learned Special Judge, POCSO Act Cases, Hazaribagh has treated the protest petition as a complaint and assigned a number, he has to follow the procedure under Section 200 and 202 of Code of Criminal Procedure and ought to have examined the complaint and the inquiry witnesses but without following the same the learned Special Judge, POCSO Act Cases, Hazaribagh having passed order of cognizance; by the impugned order, the learned Special Judge, POCSO Act Cases, Hazaribagh has committed a grave illegality. Under such circumstances, the order dated 04.07.2023 passed by the learned Special Judge, POCSO Act Cases, Hazaribagh is not sustainable in law. Accordingly, the order dated 04.07.2023 passed by the learned Special Judge, POCSO Act Cases, Hazaribagh is quashed and set aside. The learned Special Judge, POCSO Act Cases, Hazaribagh may proceed after following the procedure prescribed under Section 200

14. and 202 of Code of Criminal Procedure.

15. In the result, this criminal miscellaneous petition is allowed. High Court of Jharkhand, Ranchi Dated the 26th June, 2024 AFR/Sonu-Gunjan/- (Anil Kumar Choudhary, J.) Cr.M.P. No.2521 of 2023 6