# Mohd. Aarif @ Aarif v. State of U.P. & Anr. Opp. Parties 814 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 5 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-23
- **Case number:** Application u/s 482 No. 3922 of 2023
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-aarif-aarif-v-state-of-u-p-anr-opp-parties-814-indian-law-reports-50297
- **Pages:** 7

## Headnote

A. Criminal Law - Protection of Children
from Sexual Offences Act, 2012 -
Sections 19, 21(1) & 33 - Criminal
Procedure Code,1973 - Section 190(1)
- Complaint case - Summoning order
u/s 204 Cr.P.C. was issued by the Trial
court
after
record
of
St.ment
u/s
200/202 Cr.P.C. - Validity challenged -
Jurisdiction
of
POCSO
Court
to
entertain
a
complain
case
was
questioned - Held, although it is duty of
the Magistrate as well as police officer
concerned
to
pass
the
order
for
registration of F.I.R. but if it is not done
so,
then
it
cannot
be
said
that
allegation
against
the
applicant/accused is not maintainable -
High
Court
opined
that
the
cognizance/summoning order can be
passed
against
the
applicant
in
complaint case - S. 33 of POCSO Act
also relied upon. (Para 14 and 15)

Application disposed of. (E-1)

List of Cases cited:

## Text

5 All. Mohd. Aarif @ Aarif Vs. State of U.P. & Anr.
813
which may extend to five thousand
rupees. Therefore, for breach of any
provision of the U.P. Rules, 2011, the
State Government may provide by rules
for imposition of fine which may extend
to five thousand rupees.

32. Section 16 of the Act, 2009
provides for forfeiture of unverified weight
or measure. Section 33 provides for penalty
to a maximum of Rs.5,000/- for use of
unverified weight or measure. Thus, in
absence of a substantive provision in the
Act, 2009 providing for penalty of the
nature and for amount as provided in Rule
17(3), the penal provision of Rule 17(3) of
the U.P. Rules, 2011 being beyond rule
making power, is ultra vires to the Principal
Act, i.e. the Act, 2009. That apart, Rule 25
of the U.P. Rules, 2011 itself provides that
wherever the Rules are in conflict with the
provisions of the Act, the Act will prevail
upon the Rules.

33. For all the reasons aforestated,
we hold that the respondents may levy
stamp verification/re-verification fee only
up to Rs.5,000/- for each storage tank once
in 60 months. No additional fee in the
form of penalty under Rule 17(3) can be
levied since it is not permitted by the
Principal Act. Therefore, the impugned
orders are arbitrary and illegal and
deserves to be quashed. Consequently, all
the impugned appellate orders dated
23.08.2016 and also other orders/notices
impugned in all the abovenoted writ
petitions, except Writ Petition No.33571
of 2018, are hereby quashed. Sub-rule (3)
of Rule 17 of the Uttar Pradesh Legal
Metrology (Enforcement) Rules, 2011 is
declared ultra vires. WRIT - C No. -
52674 of 2016, WRIT - C No. - 54682 of
2016, WRIT - C No. - 54685 of 2016,
WRIT - C No. - 54687 of 2016, WRIT -
C No. - 57179 of 2016, WRIT - C No. -
57180 of 2016, WRIT - C No. - 57203 of
2016, WRIT - C No. - 57208 of 2016,
WRIT - C No. - 57210 of 2016, WRIT -
C No. - 57766 of 2016, WRIT - C No. -
61624 of 2016, and WRIT - C No. -
32799 of 2018, are allowed.

34. Respondents are directed to
determine fees payable by the petitioners
under Rule 17(1) of the U.P. Rules, 2011
within three weeks from today in terms of
this judgment and communicate it to the
petitioners
within
next
one
week.
Petitioners are directed to deposit the
entire verification/reverification fees under
Rule 17(1) of the U.P. Rules, 2011, within
next one month and shall continue to get
verified/reverified storage tanks in time as
per provisions of the Act, 2009 and the
U.P. Rules, 2011. Liberty is granted to the
respondents for initiating action against
the petitioners for penalty/fine for delayed
verification/reverification of storage tanks
in accordance with the relevant provisions
of Chapter-V of the Act, 2009 and relevant
provisions of the U.P. Rules, 2011.

35. The Writ Petition No.33571 of
2018 being merely against notice, is
dismissed.
----------

(2023) 5 ILRA 813
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.05.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Application u/s 482 No. 3922 of 2023

Mohd. Aarif @ Aarif ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties
814 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Manoj Kumar Singh

Counsel for the Opp. Parties:
G.A., Abhishek Srivastava

A. Criminal Law - Protection of Children
from Sexual Offences Act, 2012 -
Sections 19, 21(1) & 33 - Criminal
Procedure Code,1973 - Section 190(1)
- Complaint case - Summoning order
u/s 204 Cr.P.C. was issued by the Trial
court
after
record
of
St.ment
u/s
200/202 Cr.P.C. - Validity challenged -
Jurisdiction
of
POCSO
Court
to
entertain
a
complain
case
was
questioned - Held, although it is duty of
the Magistrate as well as police officer
concerned
to
pass
the
order
for
registration of F.I.R. but if it is not done
so,
then
it
cannot
be
said
that
allegation
against
the
applicant/accused is not maintainable -
High
Court
opined
that
the
cognizance/summoning order can be
passed
against
the
applicant
in
complaint case - S. 33 of POCSO Act
also relied upon. (Para 14 and 15)

Application disposed of. (E-1)

List of Cases cited:

1. Application u/s 482 Cr.P.C. No. 12864 of
2021; Soni Vs St. of U.P. & 10 ors. decided on
07.04.2022

2. Application u/s 482 Cr.P.C. No. 2804 of 2022;
Anand Vs St. of U.P. & anr. decided on
19.5.2022

3. Naresh Kumar Valmiki Vs St. of U.P. & ors.;
(2023) 241 AIC 946

4. R.P. Kapur Vs St. of Pun.; A.I.R. 1960
S.C.866

5. St. of Haryana Vs Bhajan Lal; 1992 SCC (Cr.)
426

6. St. of Bihar Vs P.P.Sharma; 1992 SCC (Cr.)
192

7. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr.; 2005 SCC (Cr.) 283 (Para
10)

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. Heard Sri Manoj Kumar Singh,
learned counsel for the applicant, Sri
Abhishek Srivastava, learned counsel for
the opposite party no.2 and Shri Vijai
Prakash Dwivedi, learned AGA for the
State as well as perused the material
available on record.

2. The present application under
Section 482 Cr.P.C. has been preferred
against the impugned summoning order
dated 31.5.2022 passed by/pending in the
court of learned Additional Sessions
Judge/Special
Judge
(POCSO
Act)
Bahraich in Complaint Case No. 97 of
2021 in Re:- Smt. Karima Vs. Aarif under
Sections 452, 376 (AB), 323, 504, 506
I.P.C. and Section 5 (m)/6 of the Protection
of Children from Sexual Offences Act (in
short " the POCSO Act"), Police Station-
Hardi, District- Bahraich as well as
application under Section 156 (3) Cr.P.C.
dated 26.8.2021 vide complaint no. 97 of
2021 and further proceedings of the case in
pursuance thereof.

3. Brief facts of the case is that the
opposite party no 2 filed an application
under Section 156 (3) Cr.P.C. on 26.8.2021
in the court of learned Additional Sessions
Judge/Special
Judge
(POCSO
Act)
Bahraich. The application under Section
156 (3) Cr.P.C. has been moved alleging
that the opposite party no. 2 and the
petitioner are relatives. Petitioner and his
family members used to come at house of
the opposite party no. 2. On 6.8.2021 at
about 1:00 p.m. minor daughter of the
5 All. Mohd. Aarif @ Aarif Vs. State of U.P. & Anr.
815
opposite party no. 2, aged about 11 years
was alone at the house. Petitioner entered
into the house and started outraging
modesty of her daughter, on objection,
petitioner pushed her on earth, undressed
her, and forcefully committed rape against
her wishes and extended abuses and threat
of life in case she told about the same to
anywhere. When the opposite party no. 2
reached her house, then her daughter told
the whole story to the opposite party no.2.
Immediately, the opposite party no. 2 gave
information at Police Station-Hardi on the
same day but when no action was taken
then on 11.8.2021 she gave an application
to the Superintendent of Police, Bahraich
through registered post, but till date no
action has been taken. Then, the application
under Section 156 (3) Cr.P.C. has been
moved then the trial court treated the
application under Section 156 (3) Cr.P.C. as
a complaint case.

4. In the aforesaid complaint case, the
statement of the complainant was recorded
under Section 200 Cr.P.C. on 22.10.2021
(annexed as Annexure No. 4). The
statement of the witnesses, namely, P.W.-1Jakir and P.W.-2-Aarif were also got
recorded under the provisions of Section
202 Cr.P.C. on 23.11.2021 and 17.12.2021
respectively. The statement of the P.W.-3
victim was also recorded under Section 202
Cr.P.C. on 5.4.2022. On the basis of the
statement recorded under Section 200 and
202 Cr.P.C., the trial court passed the
summoning order under Section 204
Cr.P.C. as aforesaid on 31.5.2022

5. Learned counsel for the applicant
raises the preliminary objection that the
POCSO Court has no jurisdiction to
entertain the application under Section 156
(3) Cr.P.C. as a complaint case under
Section 190 (1) (a) Cr.P.C., because the
only option is available to the POCSO
Court to direct the concerning police
station to register and investigate the
matter. He further submitted that the
POCSO Court may pass the cognizance
order and summoning order only on the
basis of the investigation done by the
Investigating
Officer
and
the
report
submitted under Section 173 (2) Cr.P.C. He
further submitted that in this regard in
POCSO Act special procedure has also
been mentioned under Section 19 of the
POCSO Act. The procedure of Section 19
of the POCSO Act reads as under:-

"(1)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974) any person
(including
the
child),
who
has
apprehension that an offence under this Act
is likely to be committed or has knowledge
that such an offence has been committed,
he shall provide such information to,--

(a) the Special Juvenile Police Unit;
or

(b) the local police.

(2) Every report given under subsection(1)shall be--

(a) ascribed an entry number and
recorded in writing;

(b) be read over to the informant;

(c) shall be entered in a book to be
kept by the Police Unit.

(3) Where the report under subsection(1)is given by a child, the same shall
be recorded under subsection(2)in a simple
language so that the child understands
contents being recorded.

(4) In case contents are being
recorded in the language not understood by
816 INDIAN LAW REPORTS ALLAHABAD SERIES
the child or wherever it is deemed
necessary, a translator or an interpreter,
having such qualifications, experience and
on payment of such fees as may be
prescribed, shall be provided to the child if
he fails to understand the same.

(5) Where the Special Juvenile Police
Unit or local police is satisfied that the
child against whom an offence has been
committed is in need of care and protection,
then, it shall, after recording the reasons in
writing, make immediate arrangement to
give him such care and protection including
admitting the child into shelter home or to
the nearest hospital within twenty-four
hours of the report, as may be prescribed.

(6) The Special Juvenile Police Unit
or local police shall, without unnecessary
delay but within a period of twenty-four
hours, report the matter to the Child
Welfare Committee and the Special Court
or where no Special Court has been
designated, to the Court of Session,
including need of the child for care and
protection and steps taken in this regard.

(7) No person shall incur any liability,
whether civil or criminal, for giving the
information in good faith for the purpose of
sub-section (1)."

6. To give the strengthen to his
submissions for the procedure under
Section 19 of the POCSO Act, learned
counsel for the applicant drew the attention
of the Court to the procedure of Section 21
(1) of the POCSO Act. The provision of
Section 21 (1) of the POCSO Act reads as
under :-

" Punishment for failure to report or
record a case.-

(1) Any person, who fails to report the
commission of an offence under sub-section
(1) of section 19 or section 20 or who fails
to record such offence under sub-section
(2) of section 19 shall be punished with
imprisonment of either description which
may extend to six months or with fine or
with both."

7. In support of his submission he
relied upon a judgment and order dated
7.4.2022
of
this
Court
passed
in
Application under Section 482 Cr.P.C. No.
12864 of 2021 (Soni Vs. State of U.P. and
10 others) in which this Court is of the
view that in the case related to the
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act (in short " the
S.C./S.T. Act"), if an application under
Section 156 (3) Cr.P.C. is moved by the
aggrieved party then it is bounden duty of
the trial court to pass the order for register
the case and to direct the police authority to
investigate the matter, as apart from this the
trial court has no other option. He further
submitted that the POCSO Act is also an
special Act and the provision of POCSO
Act is also analogous to the S.C./S.T. Act.
So, the trial court has no power to treat the
application under Section 156 (3) Cr.P.C. as
complaint case.

8. In support of his submission he
also relied upon a judgment dated
19.5.2022 passed in Application under
Section 482 Cr.P.C. No. 2804 of 2022
(Anand Vs. State of U.P. and another).
The relevant paragraph of the said
judgment is extracted below:-

"Learned counsel for the applicant has
further
submitted
that
as
per
the
prosecution case, victim was doing the
course of B.Pharma. She was a prudent girl
and was in relation with the applicant on
her own, and some dispute arose in
between them, then the applicant was
challaned under Sections 151/107/116
5 All. Mohd. Aarif @ Aarif Vs. State of U.P. & Anr.
817
Cr.P.C.
on
23.09.2020.
He
further
submitted that the application of the
prosecutrix under Section 156(3) Cr.P.C. was
treated as a complaint case and after
recording the statement under Sections 200 &
202 Cr.P.C., summoning order was passed by
the learned court below. He also drew
attention of the court on the provision of
Sections 19 & 21 of Chapter- V of the POCSO
Act and submitted that Section 19 of the
POCSO Act provides that in case any offence
related to the provision of POCSO Act is
reported to the local police, then the same
shall be registered and Section 21 of the
POCSO Act also provides that in case,
complaint is not registered, then officer
concerned shall be prosecuted meaning
thereby that if any offence is alleged under the
provision of POCSO Act, then registration of
the F.I.R. is mandatory and no such case can
be treated as a complaint case, as done by the
learned court below. Therefore, the learned
court below has committed error in treating
the application of the prosecutrix as a
complaint case. In such circumstances, kind
indulgence of this Court is necessary."

9. In support of his submission, learned
counsel for the applicant also relied upon a
judgment dated 11.10.2022 of this court
passed in Criminal Revision No. 1052 of
2022 (Ram Karan Vs. State of U.P. and 4
others). He submitted that in that revision the
grievance of the revisionist was same as
raised by the present applicant and in that
revision, proceedings against the revisionist
was stayed on the basis of the law laid down
by this Court in Soni Vs. State of U.P. and
10 others (Supra) and Anand Vs. State of
U.P. and another (Supra) and it was also
observed that POCSO Court cannot take
cognizance on the basis of complaint.

10. Lastly, learned counsel for the
applicant submitted that only F.I.R. can be
lodged against the applicant and complaint
case cannot be lodged, therefore, only on
this account the summoning order against
the applicant may be quashed.

11. Learned A.G.A. and learned
counsel for the respondent no. 2 in support
of his submission relied upon the procedure
of Section 33 (1) of the POCSO Act. As per
Section 33 (1) 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.
Learned counsel for the respondent no. 2
relied upon the procedure of Section 33 (1)
of the POCSO Act submitted that POCSO
court exercising its power of complaint
case can pass appropriate order. In support
of his submission, learned counsel for the
respondent no.2 relied upon the judgment
of this Court passed in the case of Naresh
Kumar Valmiki Vs. State of U.P. and
others (2023) 241 AIC 946 in which this
Court has held that that the submission that
an application under Section 156(3) Cr.P.C.
cannot be treated as a complaint case is
incorrect. The court concerned while
exercising its judicial discretion can treat
the said application as a complaint case
also and can pass appropriate order.

12. So far as question of lodging of
the F.I.R. or filing of an application under
Section 156 (3) Cr.P.C. in the case of sexual
harassment/POCSO Act is concerned, I am
of the view that specially in the case of
sexual harassment and violence it is
bounden duty of the police officer to lodge
F.I.R. because in the case of sexual assault,
the victim faces social stigma and she has
already been traumatized, therefore, the
court concerned should not be give further
burden upon the complainant/victim and
818 INDIAN LAW REPORTS ALLAHABAD SERIES
the court concerned/special court should
direct the police authority concerned to
investigate the matter fairly. The court
should pass the order for investigation,
because
the
documentary
and
other
evidence are generally in the physical
possession
of
the
accused
or other
individual and on the basis of those
evidences, the police should investigate the
matter and retrieve its power under the
Code of Criminal Procedure.

13. Under Section 154 Cr.P.C. the
Police
Officer
cannot
exercise
any
discretion when they receive a complaint
which
discloses
the
commission
of
cognizable offence- whether or not offence
complained is made out is to be determined
at the stage of investigation and/or trial.
After conducting the investigation the
police found that no offence is made out
then they may submit final report under
Section under Section 173 (2) Cr.P.C.,
however, it is not open to them to decline to
register an F.I.R.

14. Considering the entire facts and
circumstances of the case and considering
the fact that although it is duty of the
Magistrate as well as police officer
concerned to pass the order for registration
of F.I.R. but if it is not done so then it
cannot be said that allegation against the
applicant/accused
is
not
maintainable,
therefore,
I
am
of
the
view
that
cognizance/summoning
order
may
be
passed against the applicant in complaint
case.

15. So far as regards the contention of
the learned counsel for the applicant is
concerned that only to harass the applicant
the present case has been lodged by the
mother of the victim is concerned, I am of
the view that it cannot be said that such
type of offence cannot be committed by the
applicant, therefore, such type of every
defence cannot be entertained necessarily.
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. Thus, on the
perusal of the entire provisions of POCSO
Act it appears that there is no bar for
prosecution and cognizance in the matter
related to complaint under Section 190 (1)
(a) Cr.P.C. Ultimately, I am of the view that
the previous view of the courts that in
POCSO Act cognizance cannot be taken is
not a good law, as this question has already
been settled that there is no bar for treating
the application under Section 156 (3)
Cr.P.C. as a complaint case under Section
190 (1) (a) Cr.P.C. Thus, the preliminary
objection of the learned counsel for the
applicant
that
in
the
POCSO
Act
proceedings of complaint case is not
maintainable has no substance.

16. Before arguing the case on merits,
learned counsel for the petitioners while
pressing the present petition submits that
the trial court while summoning the
petitioner has materially erred and did not
follow the dictum of law as propounded by
the Hon'ble Supreme Court in various cases
that summoning in criminal case is a
serious matter and the trial court without
dwelling into material and visualizing the
case on the touch stone of probability
5 All. Sallahuddin Vs. State of U.P. & Ors.
819
should not summon accused person to face
criminal trial. It is further submitted that
the
trial
court
has
not
taken
into
consideration the material placed before the
trial court and, therefore, the trial court has
materially
erred
in
summoning
the
petitioner.

17. So far as quashing of entire
proceedings is concerned, from the perusal of
the material on record and looking into the
facts of the case at this stage, it cannot be said
that no offence is made out against the
petitioners. All the submission made relates
to the disputed question of fact, which cannot
be adjudicated upon by this Court. At this
stage, only prima facie case is to be seen in
the light of the law laid down by Supreme
Court in cases of R.P. Kapur Vs. State of
Punjab, A.I.R. 1960 S.C. 866, State of
Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)
426, State of Bihar Vs. P.P.Sharma, 1992
SCC
(Cr.)
192
and
lastly
Zandu
Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another (Para-10) 2005
SCC (Cr.) 283. The disputed defence of the
accused cannot be considered at this stage.
Moreover, the petitioners have got a right of
discharge
according
to
the
provisions
prescribed in Cr.P.C., as the case may be,
through a proper application for the said
purpose and he is free to take all the
submissions in the said discharge application
before the trial court.

18. So far as the summoning order passed
by the learned trial court is concerned, at the
stage of taking cognizance, trial court can simply
form an opinion as to whether the case is fit for
taking and committing the matter for trial or not.
In the present case, learned trial court clearly
expressed his opinion that he perused all the
record and clearly indicated that the material
placed before him is sufficient to proceed the
case. Thus, the cognizance order is not a
proforma order. Every aspect is touched by
learned trial court and petitioner failed to adduce
any evidence which caused prejudiced to him.
So, the cognizance and summoning order is
perfectly valid and there is no occasion to quash
the same.

19. The prayer for quashing the impugned
summoning order as well as impugned
proceedings is refused.

20. However, considering the facts and
circumstances of the case, it is provided that if
the applicant/petitioner appear before the trial
court and apply for bail, then bail application
shall be considered and decided in accordance
with law propounded by the Apex Court in
Satender Kumar Antil Vs. Central Bureau of
Investigation and another (Special Leave to
Appeal (Crl.) No.5191 of 2021, decided on
07.10.2021. In this case Hon'ble the Apex Court
has already laid down guidelines for grant of
bail, without fettering the discretion of the
courts concerned and the statutory provisions
governing consideration in grant of bail, no
specific directions need be issued by this Court
as it is expected that the court concerned will
take into consideration the necessary guidelines
already issued by the Apex Court.

21. Accordingly, the application under
Section 482 Cr.P.C. is disposed of.
----------
(2023) 5 ILRA 819
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.04.2023

BEFORE

THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J.

Application u/s 482 No. 4201 of 2023

Sallahuddin ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties