# Ravi & Ors v. State of U.P. & Ors. 320 INDIAN LAW REPORTS ALLAHABAD SERIES - **Citation:** (2022) 1 ILRA 319 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-12-16 - **Case number:** Application U/S 482 Cr.P.C. No. 5009 of 2021 - **Bench:** Dr. Yogendra Kumar Srivastava - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravi-ors-v-state-of-u-p-ors-320-indian-law-reports-allahabad-series-47685 - **Pages:** 39 ## Headnote (A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - -Sections 2(u),4,5,26,156(3),164,173,190,193,200,2 04,207,209,230,319,460,461 & 465 - Indian Penal Code, 1860 - Sections 363,366 & 376D - The Protection of Children From Sexual Offences Act, 2012 - Section 3/4 , 5/6 - Constitution of India - Article 15,21,39 - Inherent power noncommitment of the case, ipso facto, would not vitiate the trial by Sessions Court unless failure of justice has in fact been occasioned thereby or the accused can establish that he has been prejudiced as a result thereof - irregularity in procedure, if any, with regard to committal would not be a cause of injustice or prejudice to the applicants.(Para -75,83 ) (B) Criminal Law - The Protection of Children From Sexual Offences Act, 2012 - Section 33(1) - power of the Special Court to take cognizance - without any committal of the accused - to the extent of any inconsistency - would override the general provisions under the Code, by virtue of the provisions under Section 42A read with Section 31 of the POCSO Act. (Para -81) Application filed - seeking to quash entire proceedings as well as summoning order - passed by Special judge , POCSO - police report submitted - under section 363 IPC - only against applicant no. 1 - prior to taking cognizance - application filed by opposite party no. 3 (prosecutrix) - cognizance may also be taken under section 3/4 POCSO Act and Section 376D,366,363IPC - view of Magistrate - power to take cognizance with the Special Court constituted under the POCSO Act and not with the Magistrate - papers transmitted to Special Court, POCSO - directed registration of the case - issuance of summons to applicants - hence present application . HELD:-Order of summoning and also the proceedings of the criminal case, of which quashment is sought, being in accord with the scheme of the statutory enactment, cannot be said to suffer from any illegality so as persuade this Court to exercise its inherent jurisdiction under Section 482 of the Code.(Para -84 ) Application u/s 482 Cr.P.C. dismissed. (E-7) List of Cases cited:- ## Text _Characters 0–39,911 of 127,736. This is a partial read: ask again with offset=39911 for what follows._ 1 All. Ravi & Ors. Vs. State of U.P. & Ors. 319 "10 Power of Local Government to make certain offences cognizable and nonbailable.-(I) The Local Government may, by notification in the local official Gazette, declare that any offence punishable under Section 186, 188, 189, 190, 228, 295A, 298, 505, 506 or 507 of the Indian Penal Code, when committed in any area specified in the notification shall, notwithstanding anything contained in the Code Criminal Procedure, 1898, be cognizable and thereupon the Code of Criminal Procedure, 1898, shall, while such notification remains in force, be deemed to be amended accordingly. (2) The Local Government may, in like manner and subject to the like conditions and with the like effect, declare that an offence punishable under Section 188 or Section 506 of the Indian Penal Code shall be nonbailable." 12. The Full Bench proceeded to hold that "Section 10 of the Act of 1932 and Notification No. 777/VIII-9-4 (2) (87) dated July 31, 1989 are valid. 13. The aforesaid Full Bench decision in Meta Sewak Upadhyay (Supra) has been approved by the Hon'ble Supreme Court in Aires Rodrigues versus Vishwajeet P. Rane (2017) 11 SCC 62. 14. The validity of the aforesaid notification dated 31st July 1989 having been upheld by a Full Bench of this Court in Meta Sewak Upadhyay (Supra) and the Full Bench decision having been approved by the Hon'ble Supreme Court in Aires Rodrigues (Supra), there is no doubt that an offence under Section 506 IPC, if committed in the State of U.P. is a cognizable offence. 15. Therefore, the contention of the learned counsel for the applicant/accused has been charged with commission of noncognizable offences only based on the decision in Dr. Rakesh Kumar Sharma (Supra), is misconceived as in that case, the accused had been charged only with offence under Section 504 IPC, which is a non-cognizable offence whereas in the instant case, the applicant has been charged with the offences under Sections 504 and 506 IPC, one of which, i.e. the offence under Section 506 is a cognizable offence. 16. It is expressly provided in SubSection 4 of Section 155 Code of Criminal Procedure that "Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable." 17. In view of the aforesaid provisions of law, since the accused had been charged under Sections 504 and 506 IPC, he has to be tried for both the offences in the manner prescribed for trial of cognizable offences. 18. Therefore, the application lacks merit and it is accordingly rejected. ---------- (2022)01ILR A319 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 16.12.2021 BEFORE THE HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J. Application U/S 482 Cr.P.C. No. 5009 of 2021 Ravi & Ors. ...Applicants Versus State of U.P. & Ors. ...Opposite Parties 320 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Applicants: Sri Bipin Kumar, Ms. Deepti, Sri Shobhit Dubey, Sri Sudhir Dixit Counsel for the Opposite Parties: G.A., Sri Ajit Kumar (A) Criminal Law - The Code of Criminal Procedure, 1973 - Section 482 - -Sections 2(u),4,5,26,156(3),164,173,190,193,200,2 04,207,209,230,319,460,461 & 465 - Indian Penal Code, 1860 - Sections 363,366 & 376D - The Protection of Children From Sexual Offences Act, 2012 - Section 3/4 , 5/6 - Constitution of India - Article 15,21,39 - Inherent power noncommitment of the case, ipso facto, would not vitiate the trial by Sessions Court unless failure of justice has in fact been occasioned thereby or the accused can establish that he has been prejudiced as a result thereof - irregularity in procedure, if any, with regard to committal would not be a cause of injustice or prejudice to the applicants.(Para -75,83 ) (B) Criminal Law - The Protection of Children From Sexual Offences Act, 2012 - Section 33(1) - power of the Special Court to take cognizance - without any committal of the accused - to the extent of any inconsistency - would override the general provisions under the Code, by virtue of the provisions under Section 42A read with Section 31 of the POCSO Act. (Para -81) Application filed - seeking to quash entire proceedings as well as summoning order - passed by Special judge , POCSO - police report submitted - under section 363 IPC - only against applicant no. 1 - prior to taking cognizance - application filed by opposite party no. 3 (prosecutrix) - cognizance may also be taken under section 3/4 POCSO Act and Section 376D,366,363IPC - view of Magistrate - power to take cognizance with the Special Court constituted under the POCSO Act and not with the Magistrate - papers transmitted to Special Court, POCSO - directed registration of the case - issuance of summons to applicants - hence present application . HELD:-Order of summoning and also the proceedings of the criminal case, of which quashment is sought, being in accord with the scheme of the statutory enactment, cannot be said to suffer from any illegality so as persuade this Court to exercise its inherent jurisdiction under Section 482 of the Code.(Para -84 ) Application u/s 482 Cr.P.C. dismissed. (E-7) List of Cases cited:- 1. Balveer Singh & anr. Vs St. of Raj. & anr., (2016) 6 SCC 680 2. Dharam Pal & ors. Vs St. of Har. & anr., (2014) 3 SCC 306 3. Minu Kumari & anr. Vs St. of Bihar & ors., (2006) 4 SCC 359 4. Annu @ Smt. Anuradha & ors. Vs St. of U.P. & anr., (Application u/s 482 No. 32910 of 2019 5. Sudhir Kumar Jain & anr. Vs St. of U.P. & anr., (Application u/s 482 No. 137 of 2018, decided on 07.02.2018) 6. Minu Kumari & anr. Vs St. of Bihar & ors., (2006) 4 SCC 359 7. Raghubans Dubey Vs St. of Bihar, AIR 1967 SC 1167 8. Joginder Singh & anr. Vs St. of Punj. & anr., (1979) 1 SCC 345 9. S.K. Latfur Rahman& ors. Vs The St., 1985 CrLJ 1238 10. Kishun Singh & ors. Vs St. of Bihar, (1993) 2 SCC 16 11. Ranjit Singh Vs St. of Punj., (1998) 7 SCC 149 12. Dharam Pal& ors. Vs St. of Har. & anr., (2004) 13 SCC 9 1 All. Ravi & Ors. Vs. State of U.P. & Ors. 321 13. Dharam Pal& ors. Vs St. of Har. & anr., (2014) 3 SCC 306 14. Ajay Kumar Parmar Vs St. of Raj., (2012) 12 SCC 406 15. Balveer Singh & anr. Vs St. of Raj. & anr., (2016) 6 SCC 680 16. St. through Central Bureau of Investigation Chennai Vs Arul Kumar, (2016) 11 SCC 733 17. A.R.Antulay Vs Ramdas Sriniwas Nayak & anr., (1984) 2 SCC 500 18. Harshad S.Mehta& ors. Vs St. of Mah/, (2001) 8 SCC 267 19. Pradeep S. Wodeyar Vs The St. of Karn/, 2021 SCC Online SC 1140 20. A.R.Antulay Vs Ramdas Sriniwas Nayak & anr., (1984) 2 SCC 500 21. Santhosh De Vs Archana Guha, AIR 1994 SC 1229 22. St. of Madhya Pradesh Vs Bhooraji , (2001) 7 SCC 679 23. Rattiram & ors. Vs St. of M.P., (2012) 4 SCC 516 24. Hussainara Khatoon (1) Vs St. of Bihar, (1980) 1 SCC 81 25. Moti Lal Saraf Vs St. of J&K (2006) 10 SCC 560 26. Raj Deo Sharma Vs St. of Bihar (1998) 7 SCC 507 27. Balveer Singh & anr. Vs St. of Raj. & anr., (2016) 6 SCC 680 28. Dharam Pal& ors. Vs St. of Har. & anr. , (2014) 3 SCC 306 (Delivered by Hon'ble Dr. Yogendra Kumar Srivastava, J.) 1. Heard Sri Sudhir Dixit, alongwith Sri Anupam Shyam Dwivedi, Sri Utakarsh Dixit and Sri Shobhit Pratap Singh learned counsel for the applicants, Sri Vinod Kant, learned Additional Advocate General assisted by Sri Pankaj Saxena, learned Additional Government Advocate-I appearing for the State-opposite party no.1 and Sri Rajneesh Pratap Singh appearing alongwith Sri Ajit Kumar, learned counsel for the opposite party no.3. 2. The present application under Section 482 of the Code of Criminal Procedure, 19731 has been filed seeking to quash the entire proceedings of Criminal Case No.2377 of 2020 pending before the Special Judge, POCSO, Aligarh as well as summoning order dated 17.10.2020 arising out of Case Crime No.428 of 2019, under Sections 363, 366, 376D of the Indian Penal Code2 and Section 5/6 of the Protection of Children from Sexual Offences Act, 20123, Police Station Khair, District Aligarh in terms of which learned Judge has summoned the applicant no.1, under Sections 366, 376D IPC and Section 5/6 POCSO Act and also summoned the applicant nos. 2 and 3, under Sections 363, 366, 376D IPC and Section 5/6 POCSO Act, Police Station Khair, District Aligarh. 3. Pleadings in the case indicate that the proceedings were commenced pursuant to an FIR dated 02.09.2019, registered as Case Crime No.428/2019, under Section 363 IPC, Police Station Khair, District Aligarh, whereupon the case was investigated and a police report dated 04.06.2020 was submitted, under section 363 IPC, only against the applicant- no.1. Prior to taking cognizance an application was filed by the opposite party no.3- 322 INDIAN LAW REPORTS ALLAHABAD SERIES prosecutrix stating that having regard to the facts of the case, cognizance may also be taken under Section 3/4 POCSO Act and Section 376D, 366, 363 IPC and enclosing therewith her affidavit and her statement recorded under Section 164 of the Code and placing reliance on the decisions of the Supreme Court in Balveer Singh and Another vs. State of Rajasthan and Another4 and Dharam Pal and Others vs. State of Haryana and Another5. 4. The learned Magistrate upon examining the papers, placed alongwith the application filed by the opposite party no.3prosecutrix, took the view that looking to the offences disclosed in the application the power to take cognizance in the matter would be with the Special Court constituted under the POCSO Act and not with the Magistrate and in view thereof the papers were transmitted to the Special Court, POCSO, Aligarh. The case was thereafter taken up by the Special Judge, POCSO and taking into consideration the facts of the case, hearing the parties concerned and also examining the legal position, the Special Judge, POCSO vide order dated 17.10.2020 directed registration of the case and issuance of summons to the applicants herein. It is at this stage that the present application under Section 482 of the Code has been filed seeking quashing of the entire proceedings of the criminal case and also the summoning order dated 17.10.2020 passed by the Special Judge, POCSO. 5. Learned counsel for the applicants has sought to assail the order passed by the Special Judge, POCSO in terms of which the applicants have been summoned and also quashing of the proceedings by submitting as under:- 5.1 The learned Magistrate while passing the order dated 16.09.2020 has neither taken cognizance of the offence as per the provisions under section 190 (1) of the Code nor committed the case after following the procedure under Sections 207 and 209 of the Code and in this manner the Magistrate has adopted a procedure which is not provided for under the Code. In this regard he has placed reliance on the judgment in the case of Minu Kumari and another vs. State of Bihar and others6. 5.2. It is pointed out that upon receiving the police report under section 173 (2) of the Code, the options available to the Magistrate were either to: (i) accept the report and take cognizance of the offence and issue process, or (ii) disagree with the report and drop the proceedings, or (iii) direct further investigation under section 156 (3) and require the police to make a further report. 5.3 The police report having been submitted against the applicant no.1 only under Section 363 of the Code, the application moved by the prosecutrix could at best have been treated to be a protest petition and the Magistrate could have treated the same as a complaint case and taken cognizance under section 190 (1) (a) of the Code. 5.4 The judgment of the Hon'ble Supreme Court in the case of Balveer Singh (supra) which has been relied upon by the Magistrate has no application to the facts of the present case. 5.5 Referring to sub-section (1) of Section 28 of the POCSO Act, it is submitted that the Special Court designated under the sub-section is for the purpose of trying the offences under the Act and in view of the saving clause under section 31, the provisions of the Code would apply to 1 All. Ravi & Ors. Vs. State of U.P. & Ors. 323 proceedings before a Special Court. Accordingly, it is contended that the procedure adopted by the Special Court being contrary to the Code the same is legally unsustainable. 6. Controverting the aforesaid assertions the learned Additional Advocate General submits as under:- 6.1 A plain reading of the FIR discloses the age of the victim to be less then 18 years. The statement of the victim recorded under Section 164 of the Code supports the FIR version and also discloses the offence under section 376 IPC. The aforementioned material having been placed alongwith the police report, the Magistrate, upon taking notice thereof, has rightly held that the case would be covered within the ambit of the POCSO Act and in view of the procedure provided under section 33(1) the matter would be cognizable by the designated Special Court without the accused being committed to it for trial. In view of the aforesaid, the Magistrate having not been required under law to commit the accused for trial and the matter being cognizable by the designated Special Court under the POCSO Act, the Magistrate rightly transmitted the file to the designated Special Judge. 6.2 Referring to the decision in the case of Minu Kumari (supra) it is submitted that upon receiving the police report under section 173 (2) of the Code it was open to the Magistrate to disagree with the report and take the view that there is sufficient ground for proceeding further. Having taken that view and noticing that the offence disclosed would be covered under the special Act i.e. POCSO Act and the procedure prescribed under section 33 (1) was required to be followed, the Magistrate had no option but to transmit the records to the designated Special Judge inasmuch as the provisions of the Code are applicable only to the extent as provided under Section 31 of the said Act. 6.3 As regards the contention on behalf of the applicant that police report having been submitted against the applicant no.1 only under section 363, the application moved by the first informant could at best be treated to be a protest petition and the Magistrate could have treated the same as a complaint and taken cognizance under section 190(1) (a), reliance is placed on the Constitution Bench decision in the case of Dharam Pal and Others (supra) to submit that one of the choices open to the Magistrate upon disagreeing with the report would be to issue process and summon the accused or in case he is satisfied that a case has been made out, which was triable by a Court of Session, he may commit the case to the Court of Session to proceed further in the matter. 6.4 In the instant case, the Magistrate being satisfied that the facts of the case disclosed an offence under the special Act. i.e. POCSO Act and as per terms thereof the case was triable by the designated Special Court, and in view of the procedure under section 33(1) the accused was not required to be committed, the Magistrate has rightly transmitted the records to the designated Special Court. The designated Special Court upon receipt of the police report has thereafter followed the procedure under section 33(1) and acting as a court of original jurisdiction has taken cognizance and summoned the accused. 324 INDIAN LAW REPORTS ALLAHABAD SERIES 6.5 In view of the procedure prescribed under section 33(1) of the POCSO Act, which is a special Act, the provision with regard to taking cognizance under section 193 and the necessity of the case being committed to the Court of Sessions after completing the procedural requirement under sections 207 and 209 of the Code would not be applicable in view of the saving clause under section 5 of the Code. 6.6 The judgments in the case of Annu alias Smt. Anuradha and Others Vs. State of U.P. and Another7 and Sudhir Kumar Jain and Another vs. State of U.P. and Another8 relating to sections 207 and 209 were passed in the context of the general law and not with reference to the provisions of the special Act and therefore, would have no application to the facts of the present case. 6.7 Reliance is placed on the Constitution Bench judgment in the case of Dharampal (supra) and also the judgment in the case of Balveer Singh (supra) in so far as they lay down the law in the general context that the Magistrate in the event he disagrees with the report has an option to issue process and summon the accused or if he is satisfied that a case is made out, which is triable by the Court of Sessions, he may commit the case to the court concerned to proceed further in the matter. 6.8 As regards the contention that in case of an offence under the POCSO Act the police report ought to have directly been placed before the designated Special Court, it is pointed out that as per the chargesheet submitted by the Investigating Officer the offence under section 363 was only disclosed and accordingly the same was placed before the jurisdictional Magistrate. It was thereafter that the concerned Magistrate upon taking notice of the facts and the material placed before him disclosed commission of offence under the POCSO Act, which is triable by the designated Special Court, transmitted the file to the said Special Court for proceeding further. 7. Sri Rajnish Pratap Singh appearing alongwith Sri Ajit Kumar, learned counsel for the opposite party no.3, has supported the contention raised by the learned Additional Advocate General and points out that the POCSO Act being a special enactment the procedure prescribed therein would be required to be followed and in terms thereof the designated Special Court is fully empowered to take cognizance and issue summons upon receiving of the police report transmitted to him by the jurisdictional Magistrate. 8. The present application brings to fore interesting questions with regard to the manner of taking cognizance in the context of a special Act i.e. the POCSO Act, and its interplay with the general provisions under the Code. 9. The POCSO Act was enacted 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. 10. The statement of objects and reasons refers to Article 15 of the Constitution, which, interalia, confers upon the State powers to make special provision for children. Further, reference is made to Article 39, which, interalia, provides that the State shall in particular direct its policy 1 All. Ravi & Ors. Vs. State of U.P. & Ors. 325 towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. 11. It also contains reference to the United Nations Convention on the Rights of Children, ratified by India, which requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials. 12. Taking note of the data collected by the National Crime Records Bureau which showed an increase in cases of sexual offences against children and also noticing that sexual offences against children were not adequately addressed by the extant laws and a large number of such offences were neither specifically provided for nor adequately penalised, it was felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence and that the interests of the child, both as a victim as well as a witness, needs to be protected. 13. The POCSO Act was therefore enacted as a self contained comprehensive legislation interalia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Court for speedy trial of such offences. 14. The procedure for reporting of cases under the POCSO Act is provided for under Chapter V, and the relevant provisions thereunder are being extracted below :- "19. Reporting of offences. (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 sub-section (2) in a 326 INDIAN LAW REPORTS ALLAHABAD SERIES simple language so that the child understands contents being recorded. (4) In case contents are being recorded in the language not understood by 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). 20. Obligation of media, studio and photographic facilities to report cases. Any personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child (including pornographic, sexually-related or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police, as the case may be. 21. 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. 2. Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under subsection (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine. 3. The provisions of sub-section (1) shall not apply to a child under this Act 22. Punishment for false complaint or false information.-(1) Any person, who makes false complaint or provides false information against any person, in respect of an offence committed under Sections 3,5,7 and Section 9, solely with the intention to humiliate, extort or threaten or defame him, shall be punished with imprisonment for a term which may extend to six months or with fine or with both. 1 All. Ravi & Ors. Vs. State of U.P. & Ors. 327 2. Where a false complaint has been made or false information has been provided by a child, no punishment shall be imposed on such child. (3) Whoever not being a child, makes a false complaint or provides false information against a child, knowing it to be false, thereby victimising such child in any of the offences under this Act, shall be punished with imprisonment which may extend to one year or with fine or with both. 23. Procedure for media.-(1) No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy. (2) No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child: Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child. 3. The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee. 4. Any person who contravenes the provisions of sub-section (1) or subsection (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both." 15. Chapter VII of the POCSO Act relates to Special Courts, and the provisions thereunder are as follows :- "28. Designation of Special Courts.-(1) For the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act: Provided that if a Court of Session is notified as a children's court under the Commissions for Protection of Child Rights Act, 2005 or a Special Court designated for similar purposes under any other law for the time being in force, then, such court shall be deemed to be a Special Court under this section. 2. While trying an offence under this 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 of Criminal Procedure, 1973, be charged at the same trial. 3. The Special Court constituted under this Act, notwithstanding anything in the Information Technology Act, 2000 (21 of 2000), shall have jurisdiction to try offences under section 67-B of that Act in so far as it relates to publication or transmission of sexually explicit material depicting children in any act, or conduct or 328 INDIAN LAW REPORTS ALLAHABAD SERIES manner or facilitates abuse of children online. 29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3,5,7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. 30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. 2. For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation.- In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact. 31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court.- Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. 32. Special Public Prosecutors.- (1) The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act. 2. A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he had been in practice for not less than seven years as an advocate. 3. Every person appointed as a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of Section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and provision of that Code shall have effect accordingly." 16. It is pertinent to notice that in terms of sub-section (1) of Section 28, for the purposes of providing a speedy trial, for each district, designation of a Court of Session to be a Special Court to try the offences under the Act, has been provided for. Sub-section (2) of Section 28 makes it clear that while trying an offence under the Act, the Special Court shall also try an offence, with which the accused may, under the Code be charged at the same trial. 17. Section 31 makes the provisions of the Code applicable to proceedings before a Special Court and envisages that for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special 1 All. Ravi & Ors. Vs. State of U.P. & Ors. 329 Court, shall be deemed to be a Public Prosecutor. 18. The procedure and powers of Special Courts and the manner of recording of evidence is provided for under Chapter VIII of the POCSO Act. The procedure and powers of Special Courts is provided under Section 33, which reads as follows :- "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. 2. The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child. 3. The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial. 4. The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court. 5. The Special Court shall ensure that the child is not called repeatedly to testify in the court. 6. The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial. 7. The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial: Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child. Explanation.- For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed. 8. In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child. 9. Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973(2 of 1974) for trial before a Court of Session." 19. Sub-section (1) of Section 33 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 330 INDIAN LAW REPORTS ALLAHABAD SERIES constitute such offence, or upon a police report of such facts. 20. Sub-section (9) of Section 33 mandates that subject to the provisions of the Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code for trial before a Court of Session. 21. Section 42-A makes it clear that the provisions of the special enactment shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of the Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency. Section 42-A reads as follows :- "42-A. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency." 22. As per the general provisions under the Code after completion of the stage of investigation and placing of the final report by the police to a competent Magistrate, the stage of trial is to begin. As a precursor of the stage, the steps which are envisaged under the Code are as follows : (i) taking cognizance of the offence; (ii) ascertaining whether any prima facie case exists against the accused person; and in case it exists, then (a) to issue process against the accused person in order to secure his presence at the time of his trial, (b) to supply to the accused person copies of police statements; (iii) consolidating different proceedings pertaining to the same case; and (iv) if the case is exclusively triable by a Sessions Court, committing the case to that court. 23. The provisions under the Code contemplate two alternative modes in which the criminal law can be set in motion -- by giving information to the police under Section 154 or on receipt of a complaint or information by a Magistrate. The former would lead to investigation by the police and may be followed by forwarding of a police report under Section 173 on the basis whereof cognizance may be taken by the Magistrate under Section 190 (1) (b). In the case of the latter, the Magistrate may either direct investigation by the police under Section 156 (3) or inquire into the case under Section 202 before taking cognizance of the offence under Section 190 (1) (a) or Section 190 (1) (c), as the case may be. The Magistrate, upon taking cognizance of the offence, may proceed to try the offender except where the case is transferred under Section 191, or commit him for trial under Section 209 if the offence is triable exclusively by a Court of Session. 24. Chapter XIV of the Code relates to conditions requisite for initiation of proceedings. Section 190 provides as to when a Magistrate may take cognizance of any offence. Section 190reads as follows :- "190. Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second 1 All. Ravi & Ors. Vs. State of U.P. & Ors. 331 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. (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try." 25. Section 190, as aforestated, sets out the different ways in which a Magistrate can take cognizance of an offence i.e. take notice of an allegation disclosing commission of a crime with a view to setting the law in motion to bring the offender to book. The manner in which cognizance can be taken, of an offence alleged to have been committed, is described in clauses (a), (b) and (c) of subsection (1) of the Section. 26. The meaning of the expression 'take cognizance', though not defined, has been held to be referable to a stage where the Magistrate takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence, decides to initiate judicial proceedings against the alleged offender. Cognizance is to be in regard to the offence and not the offender. It has also been held that mere application of mind by the Magistrate would not amount to taking cognizance unless the same is done for the purpose of proceeding under Sections 200/204 of the Code. 27. The Magistrate's power to take cognizance of an offence upon a report forwarded by the police was subject matter of consideration in Minu Kumari and another Vs. State of Bihar and others6, and it was held that even when police report is filed stating that no offence is made out, the Magistrate can ignore the conclusion arrived at by the Investigating Officer and would be competent to apply its independent mind and take cognizance of the case, if he thinks fit that the facts emerging from the investigation lead to a prima facie view that commission of an offence is made out. In such a situation, the Magistrate would not be bound to follow the procedure under Sections 200 and 202 for taking cognizance of the case under Section 190 (1) (a), though it would be open for him to act under Section 200 or Section 202 as well.