# Sitam @ Prince Minor v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 1834
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-30
- **Case number:** Application U/S 528 BNSS No. 36693 of 2024
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sitam-prince-minor-v-state-of-u-p-ors-53364
- **Pages:** 4

## Headnote

Suraksha Sanhita, 2023, Sections 210 &
213 - Protection of Children from Sexual
Offences Act, 2012, Sections 31, 33 & 42A
- Cognizance - Power of Special Court -
Whether Special Judge under POCSO Act
can summon an accused not chargesheeted on the basis of victim's statement
under Section 183 BNSS - Held, Special
Court
derives
cognizance
power
exclusively from Section 33 POCSO Act; it
may take cognizance only upon complaint
or police report, not upon its own
"knowledge"
-
Section
210
BNSS
inapplicable in view of Section 42A POCSO
Act - Summoning order based on victim's
statement
under
Section
183
BNSS
unsustainable - Matter remanded for
fresh order. (Paras 4, 5, 7, 8 and 9)

HELD:
After hearing the rival submissions extended by
learned counsel for the parties, one thing is
crystal clear that there is slight difference
between the normal procedure available under
BNSS, 2023 as well as in comparison to the
procedure available under POCSO Act, 2012.
However, it is mentioned under Section 31 of
Protection of Children From Sexual Offences Act,
2012 that application of Code of Criminal
Procedure, 1973 to proceeding before a Special
Court shall be applicable, is related to the
procedure for commencement of trial so far as
regarding the procedure for taking cognizance
of offence, it is specifically mentioned under
Section 33 of POCSO Act, 2012 and so far as
5 All. Sitam @ Prince Minor Vs. State of U.P. & Ors.
1835
regarding power vest with Section 33 of POCSO
Act, 2012 is concerned, it deals with Section
42(A) of POCSO Act, 2012 wherein, it is
specifically mentioned that the provision of
this Act shall be in addition and not in
derogation 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 provision of any such law to the
extent
of
inconsistency.
In
the
strict
consonance of Section 42(A), it is Section 33
of POCSO Act, 2012 which will be applicable
before the learned Session Court for taking
cognizance of offence, if the same has been
taken in pursuance to the certain offences
made out in pursuance to Protection of
Children From Sexual Offences Act, 2012.
(Para 7)

In
view
of
aforementioned
facts
and
circumstances,
impugned
cognizance/
summoning order dated 07.10.2024 is not
sustainable in the eye of law since the same has
been passed not in pursuance to the police
report or the complaint which attracted the
offence carried out by the applicant whereas the
same has been passed in pursuance to the
statement record by the victim under Section
183 BNSS, 2023. (Para 8)

Application allowed. (E-14)

## Text

1834 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed on procedural grounds and that
liberty was granted to initiate fresh
proceedings in accordance with law.
From the record, it appears that the
authorities have now complied with the
requisite procedural mandates including
completion of base case investigations,
preparation of gang-chart, convening of
a joint meeting, approval by the District
Magistrate after application of mind.
The petitioner has a long-standing
criminal history and the allegations
pertain
to
organized
crime
across
multiple districts.

17. In view of the above, the
submission of the learned counsel the
petitioner, that he has been falsely
implicated in all the cases due to political
rivalry, is not sustainable as in majority of
the criminal cases, which form part of his
long criminal history, are of similar nature
and encompasses ingredients of criminality.
Suffice to say that there can be no smoke
without fire.

18. Upon careful consideration of
the record, the legal provisions, and the
binding
precedents,
we
are
of
the
considered opinion that no procedural
illegality
or
arbitrariness
has
been
demonstrated in the initiation of the present
proceedings under the Act, 1986. The
impugned FIR does not call for interference
under Article 226 of the Constitution of
India.

19. The writ petition, being devoid
of merit, is hereby dismissed.

20. No order as to costs.
----------
(2025) 5 ILRA 1834
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2025
BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Application U/S 528 BNSS No. 36693 of 2024

Sitam @ Prince Minor ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Amit Kumar Srivastava

Counsel for the Opposite Parties:
G.A.

Criminal Procedure - Bhartiya Nagrik
Suraksha Sanhita, 2023, Sections 210 &
213 - Protection of Children from Sexual
Offences Act, 2012, Sections 31, 33 & 42A
- Cognizance - Power of Special Court -
Whether Special Judge under POCSO Act
can summon an accused not chargesheeted on the basis of victim's statement
under Section 183 BNSS - Held, Special
Court
derives
cognizance
power
exclusively from Section 33 POCSO Act; it
may take cognizance only upon complaint
or police report, not upon its own
"knowledge"
-
Section
210
BNSS
inapplicable in view of Section 42A POCSO
Act - Summoning order based on victim's
statement
under
Section
183
BNSS
unsustainable - Matter remanded for
fresh order. (Paras 4, 5, 7, 8 and 9)

HELD:
After hearing the rival submissions extended by
learned counsel for the parties, one thing is
crystal clear that there is slight difference
between the normal procedure available under
BNSS, 2023 as well as in comparison to the
procedure available under POCSO Act, 2012.
However, it is mentioned under Section 31 of
Protection of Children From Sexual Offences Act,
2012 that application of Code of Criminal
Procedure, 1973 to proceeding before a Special
Court shall be applicable, is related to the
procedure for commencement of trial so far as
regarding the procedure for taking cognizance
of offence, it is specifically mentioned under
Section 33 of POCSO Act, 2012 and so far as
5 All. Sitam @ Prince Minor Vs. State of U.P. & Ors.
1835
regarding power vest with Section 33 of POCSO
Act, 2012 is concerned, it deals with Section
42(A) of POCSO Act, 2012 wherein, it is
specifically mentioned that the provision of
this Act shall be in addition and not in
derogation 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 provision of any such law to the
extent
of
inconsistency.
In
the
strict
consonance of Section 42(A), it is Section 33
of POCSO Act, 2012 which will be applicable
before the learned Session Court for taking
cognizance of offence, if the same has been
taken in pursuance to the certain offences
made out in pursuance to Protection of
Children From Sexual Offences Act, 2012.
(Para 7)

In
view
of
aforementioned
facts
and
circumstances,
impugned
cognizance/
summoning order dated 07.10.2024 is not
sustainable in the eye of law since the same has
been passed not in pursuance to the police
report or the complaint which attracted the
offence carried out by the applicant whereas the
same has been passed in pursuance to the
statement record by the victim under Section
183 BNSS, 2023. (Para 8)

Application allowed. (E-14)

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Sri Aryan Srivastava, learned
counsel appearing on behalf of applicant
and learned AGA for State.

2. Present application has been
preferred with prayer to set aside the
impugned cognizance/summoning order
dated 7.10.2024 passed by learned Special
Judge, POCSO Act/Additional Sessions
Judge,
Bareilly
as
well
as
entire
proceedings arising out of Case Crime no.
375 of 2024 (State vs. Arun & another)
under sections 70(2), 89, 123, 351(3) of
BNS and 4(2), 5(j)(ii)/6 and 5(1)/6 of
POCSO Act, 2012, PS- Aonla, District
Bareilly, pending in court of Special Judge,
POCSO Act/Additional Sessions Judge,
Bareilly.

3. It is the case of the applicant that
after institution of case at Case Crime no.
375 of 2024 which culminated into
conduction of the detailed investigation by
concerned
Investigating
Officer
who
preferred charge sheet in pursuance to
sections 123/65(1)/351(3)/89 of Bhartiya
Nyaya Sanhita (in short "BNS"), 2023 and
4(2) of Protection of Children From Sexual
Offences Act, 2012 only against one Arun
son of Mahesh and the applicant has been
exonerated at the time of preferring charge
sheet. But later on, once, charge sheet
along with entire Case Diary has been put
before learned court of Special Judge,
POCSO Act, 2012 by taking cognizance of
offence, applicant has been summoned on
the basis of the statement recorded by the
victim herself under Section 183 BNS,
2023 in pursuance to Section 70(2), 89,
123, 351(3) of BNS, 2023 and Section 4(2),
5(j)(ii)/6, 5(l)/6 of POCSO Act, 2012.

4.
Learned
counsel
for
the
applicant submitted that the summoning of
the applicant once, not implicated in the
charge sheet is bad in the eye of law since
provision available under Section 210 of
Bhartiya Nagrik Suraksha Sanhita (in short
"BNSS"), 2023 shall apply in mutatis
mutandis while taking cognizance by
learned court of Session under Section 213
of BNSS, 2023 but at the same time,
applicability of the Special Act, i.e. the
Protection
of
Children
from
Sexual
Offences Act, 2012 wherein the procedural
power of Special Court in respect of taking
cognizance of offence is mentioned under
Section 33 and it has been mentioned that
Special Court may take cognizance of any
offence
without
the
accused
being
1836 INDIAN LAW REPORTS ALLAHABAD SERIES
committed for trial, upon receiving a
complaint of facts which constitute such
offence or upon a police report of such
facts and as such the scope available under
Section 210 of BNSS, 2023 which
automatically covered under Section 213
of BNSS, 2023 is not available in respect of
Section 210(1)(c) of BNSS, 2023 wherein
the cognizance of offence can be taken up
upon information received from any person
other than a police officer, or "upon his
own knowledge".

5.
Learned
counsel
for
the
applicant
submitted
that
the
word
knowledge has been derived in the instant
matter from the statement recorded under
Section 183 BNSS, 2023 which might be in
judicious conscious applied by learned
Sessions Court being a Special Court for
taking cognizance of offence in pursuance
to the Protection of Children from Sexual
Offences Act, 2012 but at the same time it
is apparent error of law on face of record
that while exercising power vested under
Section 33 of POCSO Act, 2012 there is no
scope for exercising power vest with
Section 210 which is applicable under
Section 213 of BNSS, 2023 also, since
section 33 of POCSO Act, 2012 deals only
with the taking cognizance of offence in
respect of receiving a complaint of fact
which constitutes such offences or upon a
police report of such facts and there is
hardly any word available "upon his own
knowledge" which is mentioned under
Section 210 of BNSS, 2023.

6.
Per
contra,
learned
AGA
vehemently opposed the prayer as made in
the application and rebutted the stand taken
up by learned counsel for the applicant and
submitted that learned Special Court
summoned the applicant in pursuance to
the section mentioned in the order dated
07.10.2024 in pursuance to BNS, 2023 and
there is hardly any illegality involved
therein and the instant application is liable
to be dismissed.

7.
After
hearing
the
rival
submissions extended by learned counsel
for the parties, one thing is crystal clear that
there is slight difference between the
normal procedure available under BNSS,
2023 as well as in comparison to the
procedure available under POCSO Act,
2012. However, it is mentioned under
Section 31 of Protection of Children From
Sexual Offences Act, 2012 that application
of Code of Criminal Procedure, 1973 to
proceeding before a Special Court shall be
applicable, is related to the procedure for
commencement of trial so far as regarding
the procedure for taking cognizance of
offence, it is specifically mentioned under
Section 33 of POCSO Act, 2012 and so far
as regarding power vest with Section 33 of
POCSO Act, 2012 is concerned, it deals
with Section 42(A) of POCSO Act, 2012
wherein, it is specifically mentioned that
the provision of this Act shall be in
addition and not in derogation 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
provision of any such law to the extent of
inconsistency. In the strict consonance of
Section 42(A), it is Section 33 of POCSO
Act, 2012 which will be applicable before
the learned Session Court for taking
cognizance of offence, if the same has been
taken in pursuance to the certain offences
made out in pursuance to Protection of
Children From Sexual Offences Act, 2012.

8. In view of aforementioned facts
and circumstances, impugned cognizance/
summoning order dated 07.10.2024 is not
sustainable in the eye of law since the same
5 All. Saumya Sajiv Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1837
has been passed not in pursuance to
the police report or the complaint which
attracted the offence carried out by the
applicant whereas the same has been
passed in pursuance to the statement record
by the victim under Section 183 BNSS,
2023.

9.
Impugned
order
dated
07.10.2024 is set aside. Matter is remitted
back to learned Special Judge, POCSO
Act/Additional Sessions Judge, Bareilly for
passing fresh order in pursuance to strict
consonance of the Section 33 of Protection
of Children From Sexual Offences Act,
2012.

10. The instant application stands
allowed accordingly.
---------
(2025) 5 ILRA 1837
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2025

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Application U/S 482 No. 41453 of 2024

Saumya Sajiv Kumar Sharma & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Mahendra Bahadur Singh, Vijeta Singh

Counsel for the Opposite Parties:
G.A.

Family Law - Protection of Women
from Domestic Violence Act, 2005,
Sections 12, 21 & 23 - Hindu Minority
and Guardianship Act, 1956, Section 6
- Guardians and Wards Act, 1890 -
Custody
of
minor
female
child
-
Welfare
of
child
-
Paramount
consideration - Female child entering
puberty - Custody to mother preferred
- Father deceitfully taking custody
through
manipulation
-
Digital
evidence
(SMS,
WhatsApp
chats,
Google Maps timeline) corroborating
mother's case - Custody directed to be
handed to mother within three days -
Child's
welfare
not
subservient
to
patriarchal presumption under Section
6 of Hindu Minority and Guardianship
Act
-
Visitation
rights
to
father
reserved. (Paras 15, 18, 19, 20, 21, 23,
24, 26 and 28)

HELD:
The principle that the father is the natural
guardian of the minor child-boy or unmarried
girl, and after him, the mother is primarily
derived from section 6 of the Hindu Minority and
Guardianship Act, 1956, though seminal at its
time. Now it smacks patriarchal bias, therefore,
become obsolete in the progressive realities of
21st- century in India. The judicial interpretation
has commendably filled the legislative void,
especially
in
recognizing
the
preferential
custodial rights of mothers of girl children.
However, true progress demands that the
legislature codify these evolving norms to
ensure
a
consistent
and
gender-neutral
approach across the country. (Para 15)

In
child
custody
proceedings,
especially
involving a minor girl entering puberty, the role
of the family court judge is not merely
adjudicative
but
deeply
protective
and
facilitative. The transition into adolescence is a
sensitive period marked by profound emotional
and physical changes, and the law recognises
the need for careful, child centric engagement
by the judiciary. The judge is tasked with
upholding not just statutory rights but also the
child's dignity, safety, emotional well-being, and
evolving autonomy. (Para 19)

When deciding custody of a girl who has just
entered puberty, courts shall consider: (i) who
the primary caregiver has been, (ii) the girl's
schooling, community ties, and stability, (iii)
allegations of abuse, neglect, or inappropriate
behaviour, and (iv) demeanour and conduct of
the parities to the litigation. The judicial role in