Delhi District Court
Rajan Kataria @ Golu vs . on 13 September, 2018
In the court of Sh. Prayank Nayak, MM02 (SHD), Delhi.
CC No. 3770/18
PS.: Harsh Vihar
Rajan Kataria @ Golu
vs.
Hemlata etc.
13.09.2018
Present: Complainant in person with counsel.
Status report received. Copy supplied.
Arguments on application u/s. 156 (3) Cr.P.C heard. Put up for orders at 4 pm today itself.
(Prayank Nayak) MM02(KKD/SHD)/Delhi 13.09.2018 At 4.00 PM.
Present: None.
By this order I shall dispose off an application U/s 156(3) Cr. P.C. In this case, it is alleged by the complainant that four years back accused Hemlata forcibly made physical relations with him and extended threat to implicate the complainant in a false rape case.
Ld. counsel for the complainant submits that accused was minor at the time when Hemlata forced him to make physical relations with her and hence POCSO Act will be applicable. He has placed on record copy of his Aadhar Rajan Kataria @ Golu vs. Hemlata etc. Page No . 3 of 3 Card to show that complainant was minor four years ago. Hence, he prays for registration of FIR under section 4 of POCSO Act.
In this case, the allegations are that accused forcibly made physical relations with the complainant, who was minor at that point of time. Hence, the offence alleged to have been committed by the accused, falls within the ambit of POCSO Act. Accordingly, it is required to be decided whether this court can direct registration of FIR with respect to offences punishable under POCSO Act.
Under the scheme of POCSO Act, section 28 of the POCSO Act provides for constitution of Special Courts to try the offence under the said act. Further Sec 33(1) of the act provides that special court has power to take cognizance of the offences under the said Act. Hence, in view of the same, the Magistrate cannot taken cognizance of the offence punishable under POCSO Act. Resultantly, the Magistrate cannot order registration of FIR in a case which is covered by POCSO Act. Reliance in this regard is placed upon the judgment of Hon'ble Supreme Court in Anil Kumar v. M.K. Aiyappa , (2013) 10 SCC 705, wherein it was observed by Hon'ble Apex Court that A Magistrate, who is otherwise competent to take cognizance, without taking cognizance under Section 190, may direct an investigation under Section 156(3) CrPC. The Magistrate, who is empowered under Section 190 to take cognizance, alone has the power to refer a private complaint for police investigation under Section 156(3) CrPC. ....(Para 11).
The aforesaid conclusion is also fortified by the judgment of Hon'ble High Court of Allahabad in Shamshad Ali And Anr. v. The State Of U.P Thru Principal Secy., Lucknow And Anr. No. 2220 of 2015 Dated 22.5.2015, wherein it was observed by Hon'ble High Court of Allahbad:
Rajan Kataria @ Golu vs. Hemlata etc. Page No . 3 of 3 "So far as the question regarding competence to pass the order by the Special Judge is concerned, the Apex Court in Anil Kumar & Ors. v. M.K. Aiyappa & Anr. 2014 (1) JIC 601 (SC) in Para 11 has categorically held that Special Judge was clothed with all the powers which a Magistrate possesses. Section 156 (3) Cr.P.C. deals with the competence of the Magistrate, who may pass the order. The Special Judge under the POCSO Act is only competent Court to entertain the application under Section 156 (3) Cr.P.C."
In light of law discussed above, the Magistrate cannot take cognizance of the offences punishable under POCSO Act, 2012 nor can he/she direct registration of FIR with respect to POCSO Act and the complaint is required to be filed before Special court. Accordingly, the present application as well as the complaint u/s 200 Cr.P.C be returned to the complainant upon retaining self attested copies of the same as well as the documents.
Copy of the order be given dasti to the counsel for the complainant. File be consigned to Record Room after due compliance.
Digitally (Prayank Nayak)
signed by
PRAYANK MM02(KKD/SHD)/Delhi
13.09.2018
PRAYANK NAYAK
NAYAK Date:
2018.09.13
17:01:27
+0530
Rajan Kataria @ Golu vs. Hemlata etc. Page No . 3 of 3