The Allahabad High Court has set aside a summoning order passed under the POCSO Act based on the statement recorded by the victim under Section 183 BNS, 2023. The High Court took note of the fact that the order was passed not in pursuance of the police report or the complaint which attracted the offence carried out by the applicant.

The applicant approached the High Court seeking setting aside of the impugned cognizance/summoning order of the Special Judge, POCSO Act/Additional Sessions Judge, Bareilly as well as entire proceedings arising out of a case registered under Sections 70(2), 89, 123, 351(3) of BNS and 4(2), 5(j)(ii),6 and 5(1)/6 of the POCSO Act, 2012.

The Single Bench of Justice Saurabh Srivastava held, “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.”

Advocate Amit Kumar Srivastava represented the Petitioner, while Government Advocate represented the Respondent.

Factual Background

It was the applicant’s case that after the institution of the case which culminated into conduction of the detailed investigation by the concerned Investigating Officer, a charge sheet came to be filed in pursuance to Sections 123, 65(1), 351(3) and 89 of Bhartiya Nyaya Sanhita (BNS), 2023 and Section 4(2) of the Protection of Children From Sexual Offences Act, 2012 only against one Arun son of Mahesh and the applicant had been exonerated. However, later on, he was summoned when the charge sheet, along with the entire case diary, was put before the court of the Special Judge, POCSO Act.

Reasoning

The Bench, at the outset, explained that there is a slight difference between the normal procedure available under BNSS, 2023, as well as in comparison to the procedure available under the 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”, it said.

The Bench further stated that Section 33 of the POCSO Act will be applicable before the Session Court for taking cognizance of the offence, if the same has been taken in pursuance of certain offences made out under the Act. The Bench held that the impugned cognizance/summoning order was not sustainable in the eye of the law since the same had been passed not in pursuance of the police report or the complaint which attracted the offence carried out by the applicant.

Thus, allowing the application, the Bench set aside the impugned summoning order and remitted the matter back to the Special Judge, POCSO Act/Additional Sessions Judge, Bareilly for passing a fresh order in pursuance of strict consonance with Section 33 of the Protection of Children From Sexual Offences Act, 2012.

Cause Title: Sitam @ Prince Minor Opposite Party :- State Of U.P. And 3 Others (Neutral Citation: 2025:AHC:94152)

Appearance

Petitioner: Advocate Amit Kumar Srivastava

Respondent: Government Advocate

Click here to read/download Order


Allahabad High CourtJustice Saurabh Srivastava

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.