Ashish Kumar And Another Vs. State Of U.P. And Another

Allahabad High Court (Single Judge)

APPLICATION U/s 482, 12482 of 2015, Judgment Date: May 07, 2015

HIGH COURT OF JUDICATURE AT ALLAHABAD 

"A.F.R." 
Court No. - 41 
Case :- APPLICATION U/S 482 No. - 12482 of 2015 
Applicant :- Ashish Kumar And Another 
Opposite Party :- State Of U.P. And Another 
Counsel for Applicant :- Ved Mani Sharma 
Counsel for Opposite Party :- Govt. Advocate 

Hon'ble Manoj Misra,J. 

Heard Learned counsel for the applicants; the learned AGA for the State; Sri Bimal Prasad for the opposite party no.2 and perused the record. 
In view of the order that is being passed as also the ground on which it is being passed, this Court does not consider it necessary to call for counter affidavit. The learned counsel for the opposite parties also do not want time to file counter affidavit as it would only delay the proceeding, particularly when the matter can be disposed of on a pure legal question. 
Brief facts of the case are that a first information report was lodged by the opposite party no.2 (victim's father), which was registered as Case Crime No.749 of 2014 at P.S. Rauja, district Shajahanpur, under sections 147, 354 A, 352, 323 and 506 IPC and Sections 7/8 of The Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as Pocso Act). After investigation, the police laid charge-sheet under Sections 352, 323 and 506 IPC only. As a result, the opposite party no.2 filed an affidavit alleging therein that on the date of the incident that is 30th October, 2014, the victim's age was about 16 years and as she had alleged molestation, etc. in her statement, offences punishable under sections 147 and 354 A IPC as also sections 7/8 of Pocso Act were also made out. Upon receiving such affidavit, the learned Magistrate perused the police report and passed the impugned order dated 19.03.2015 thereby directing return of the charge-sheet for being laid before the Special Court constituted under the Pocso Act. In the order impugned it was observed that from the material available in the case diary offences punishable under Sections 323, 353, 354 and 506 IPC and Sections 7/8 of Pocso Act were, prima facie, made out, but as it was not empowered to take cognizance of the offences punishable under the Pocso Act, therefore, the charge sheet is to be returned for presentation before the Special Court. 
The applicants before this Court are the accused in the said case. 
Assailing the impugned order, the learned counsel for the applicants submitted that at the stage of taking cognizance, the learned Magistrate ought to have taken cognizance of the offences for which the charge sheet was laid, although, at a later stage, if he had come to a conclusion that other offences exclusively triable by a Court of Session or a Special Court constituted under the Pocso Act were also made out, he could have committed the case either under section 209 of the Code of Criminal Procedure (hereinafter referred to as the Code) or under section 323 of the Code. It has been submitted that returning the charge sheet for being presented before the Special Court was not legally justified. 
To support the aforesaid contention attention of the Court was invited to the provisions of the Pocso Act so as to demonstrate that a Special Court is deemed to be a Court of Session, therefore, under section 209 of the Code there can be a commitment to the Special Court as well. It has been submitted that section 28 of the Pocso Act, 2012 provides that there shall be a Special Court notified to try the offences under the Pocso Act. It has been submitted that though section 33 of the said Act provides that 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 but there is no such provision that the Special Court alone can take cognizance of an offence punishable under the said Act. It has been submitted that in any view of the matter the Court of Magistrate is competent to take cognizance of any offence even though the offence may be triable by a Court of Session. It has also been submitted that by virtue of sections 31 and 33 of Pocso Act the Special Court is deemed to be a Court of Session and the provisions of the Code are applicable to it. Meaning thereby that the Magistrate after taking cognizance of the offences could always commit the case for trial to the Special Court, but the Magistrate cannot refuse to take cognizance on the police report and straight away direct laying of charge sheet before the Special Court. 
The learned AGA as well as learned counsel for the opposite party no.2 supported the impugned order by contending that special procedure has been prescribed for dealing with offences punishable under the Pocso Act. 
Before considering the weight of the submissions of the learned counsel for the parties, it would be useful to first examine the powers of a Magistrate of the first class to take cognizance of an offence. In this regard it would be useful to first refer to the provisions of section 190 of the Code. Section 190 of the Code provides that any Magistrate of the first class, and any Magistrate of second class specially empowered in this behalf under sub section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. Section 2(n) of the Code provides that offence means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871. Sub section (2) of section 4 of the Code provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. A conspectus of the aforesaid provisions would go to show that a Magistrate of the first class or the empowered Magistrate of the second class is fully competent to take cognizance of any offence that is not only of offences under the Indian Penal Code but also of offences punishable under any law unless there is a special procedure prescribed for inquiring into, trying or otherwise dealing with such offences. 
Therefore, the question that emerges for adjudication is whether a special procedure has been carved out for inquiry and trial of offences under the Pocso Act. 
The Pocso Act has been enacted as an Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Chapter V of the Pocso Act provides for special procedure for reporting of cases relating to an offence under the Act whereas Chapter VI of the Act provides for special procedure for recording of statement of the Child. Chapter VII provides for Special Courts to be notified for speedy trial of the offences under the Act. Sub section (2) of section 28 provides that while trying an offence under the Pocso Act, a Special Court shall also try an offence other than the offence referred to in sub section (1), with which the accused may, under the Code, be charged at the same trial. Meaning thereby that by virtue of section 220 of the Code read with sub section (2) of section 28 of Pocso Act if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, and if one or more of those offences is an offence punishable under the Pocso Act, then the accused could be tried by the Special Court. Section 31 of the Pocso Act provides that Special Court constituted under the Act would be deemed to be Court of Session. Chapter VIII of the Pocso Act provides for procedure and powers of Special Courts and for recording of evidence. Sub section (1) of section 33 of the Pocso Act provides that 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 word offence though is not defined under the Pocso Act but sub section (2) of section 2 of the Pocso Act provides that the words and expressions used in the Act and not defined but defined in the Indian Penal Code, the Code of Criminal Procedure, 1973, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Information Technology Act, 2000 shall have the meanings respectively assigned to them in the said Codes or the Acts. Thus a conjoint reading of sections 2(2), 28(2) and 33(1) of the Pocso Act read with section 4(2) of the Code would go to show that if a police report or complaint relates to an offence punishable under the Pocso Act it will have to be presented before the Special Court constituted under the said Act even though it may also relate to offences other than those punishable under the Pocso Act. 
But the question that arises for consideration in this application is whether in the instant case, the learned Magistrate was justified in refusing to take cognizance on the charge sheet and return the same for presentation to the Special Court straight away even though the charge sheet related only to offences punishable under the Indian Penal Code and not under the Pocso Act. 
Before answering the said question it would be useful to first consider certain observations made by the Apex Court in the case of State of Gujarat v. Girish Radhakrishnan Varde, (2014) 3 SCC 659, especially in paragraphs 12 to 17 of the report, which are being reproduced herein below: 
"12. Section 190(1) CrPC contains the provision for cognizance of offences by the Magistrates and it provides three ways by which such cognizance can be taken which are reproduced hereunder: 
(a) upon receiving a complaint of facts which constitute such offence; 
(b) upon a police report in writing of such facts--that is, facts constituting the offence--made by any police officer; 
(c) upon information received from any person other than a police officer or upon the Magistrate's own knowledge or suspicion that such offence has been committed. 
An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which constitute such offence, a case is instituted in the Magistrate's court and such a case is one instituted on a complaint. Again, when a Magistrate takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate's court on a police report. The scheme underlying CrPC clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a police station. If the offence complained of is a non-cognizable one, the police officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus, two agencies have been set up for taking offences to the court. 
13. But the instant matter arises out of a case which is based on a police report as a first information report had been lodged before the police at Deesa Police Station under Section 154 CrPC and, therefore, the investigation was conducted by the police authorities in terms of procedure prescribed under Chapter XII CrPC and thereafter charge-sheet was submitted. At this stage, the Chief Judicial Magistrate after submission of the charge-sheet appears to have entertained an application of the complainant for addition of three other sections into the charge-sheet, completely missing that if it were a complaint case lodged by the complainant before the Magistrate under Section 190(1)(a) CrPC, obviously the Magistrate had full authority and jurisdiction to conduct enquiry into the matter and if at any stage of the enquiry, the Magistrate thought it appropriate that other additional sections also were fit to be included, the Magistrate obviously would not be precluded from adding them after which the process of cognizance would be taken by the Magistrate and then the matter would be committed for trial before the appropriate court. 
14. But if a case is registered by the police based on the FIR registered at the police station under Section 154 CrPC and not by way of a complaint under Section 190(1)(a) CrPC before the Magistrate, obviously the magisterial enquiry cannot be held in regard to the FIR which had been registered as it is the investigating agency of the police which alone is legally entitled to conduct the investigation and, thereafter, submit the charge-sheet unless of course a complaint before the Magistrate is also lodged where the procedure prescribed for complaint cases would be applicable. In a police case, however after submission of the charge-sheet, the matter goes to the Magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial in a case which is lodged before the police by way of FIR and the Magistrate cannot exclude or include any section into the charge-sheet after investigation has been completed and charge-sheet has been submitted by the police. 
15. The question, therefore, emerges as to whether the complainant /informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge-sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet. 
16. In the alternative, if a case is based on a complaint lodged before the Magistrate under Sections 190 or 202 CrPC, the Magistrate has been conferred with full authority and jurisdiction to conduct an enquiry into the complaint and thereafter arrive at a conclusion whether cognizance is fit to be taken on the basis of the sections mentioned in the complaint or further sections were to be added or subtracted. CrPC has clearly engrafted the two channels delineating the powers of the Magistrate to conduct an enquiry in a complaint case and police investigation based on the basis of a case registered at a police station where the investigating authorities of the police conduct investigation under Chapter XII and there is absolutely no ambiguity in regard to these procedures. 
17. In spite of this unambiguous course of action to be adopted in a case based on police report under Chapter XII and a magisterial complaint under Chapters XIV and XV, when it comes to application of the provisions of CrPC in a given case, the affected parties appear to be bogged down often into a confused state of affairs as it has happened in the instant matter since the magisterial powers which are to deal with a case based on a complaint before the Magistrate and the police powers based on a police report/FIR have been allowed to overlap and the two separate course of actions are sought to be clubbed which is not the correct procedure as it is not in consonance with the provisions of CrPC. The affected parties have to apprise themselves that if a case is registered under Section 154 CrPC by the police based on the FIR and the charge-sheet is submitted after investigation, obviously the correct stage as to which sections would apply on the basis of the FIR and the material collected during investigation culminating into the charge-sheet, would be determined only at the time of framing of charge before the appropriate trial court. In the alternative, if the case arises out of a complaint lodged before the Magistrate, then the procedure laid down under Sections 190 and 200 CrPC clearly shall have to be followed. 

Upon consideration of the observations made by the Apex Court, quoted herein above, the law that emerges is that when a police report is presented before the Magistrate for forming an opinion as to whether it is a fit case for taking cognizance and committing the matter for trial, the Magistrate cannot exclude or include any section into the charge-sheet after investigation has been completed and charge-sheet has been submitted by the police. The same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge-sheet it is open for the prosecution to contend before the appropriate trial court at the stage of framing of charge that on the given state of facts the charge of certain other offences should also be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet. In a case which is triable by a Court of Session though the Magistrate cannot add or alter a charge but he is empowered by sections 209 and 323 of the Code to commit the case to a Court of Session. Since under section 31 of the Pocso Act a Special Court constituted under the said Act is deemed to be a Court of Session, the Magistrate, if he finds that offences triable by a Special Court under the Pocso Act are also made out, he is empowered to commit the case to the Special Court by taking aid of the provisions of section 209 of the Code. But such commitment arises after the Magistrate takes cognizance of the offences laid in the charge sheet. 
Therefore, in my view since the police report of the instant case did not include any offence punishable under the Pocso Act, the learned Magistrate could have taken cognizance of the offences mentioned in the police report and, thereafter, if he had found that other offences were also made out which were triable by a Court of Session or a Special Court, could have committed the matter to the Special Court under the provisions of the Code. But returning the charge sheet for presentation before the Special Court even though it did not challan the accused with offences punishable under the Pocso Act, cannot be legally sustained. 
In view of the above, the application is allowed. The order dated 19th March, 2015 passed by Additional Civil Judge (Jr.Div.)-III/Judicial Magistrate, Shahjahanpur is set aside. The learned Magistrate is directed to pass a fresh order on the police report submitted in reference to case crime no.749 of 2014, P.S. Rauja, district Shajahanpur in accordance with law and in the light of the observations made herein above. 
Order Date :- 7.5.2015.