ALLAHABAD| 3RD JUNE 2025
Court Emphasizes Procedural Compliance in Cognizance under POCSO Act, 2012
In a significant ruling, the Allahabad High Court has set aside cognizance/summoning order passed by the Special Judge, POCSO Act/Additional Sessions Judge, Bareilly, citing procedural lapses. The order was based on a statement recorded under Section 183 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, instead of being supported by a police report or a formal complaint. The case was brought before the Court by the petitioner (a minor) who was exonerated during the investigation, yet later summoned based on the victim’s statement.
CASE TITLE
Sitam @ Prince (Minor) v. State of U.P. and 3 Others
Neutral Citation: 2025:AHC:94152
Bench and Representation
Presiding Judge: Justice Saurabh Srivastava
Petitioner’s Counsel: Advocate Amit Kumar Srivastava
Respondent: Government Advocate
FACTUAL BACKGROUND
The petitioner contended that:
A detailed police investigation had been conducted.
A charge sheet was filed under Sections 123, 65(1), 351(3), and 89 of the BNS, 2023, and Section 4(2) of the POCSO Act, 2012, only against one Arun (son of Mahesh).
The petitioner had been explicitly exonerated.
However, when the charge sheet and case diary were presented before the Special Judge, a summoning order was issued against the petitioner.
Court’s Reasoning and Interpretation of Law
Justice Srivastava observed:
“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.”
The Bench clarified that:
Section 31 of the POCSO Act, 2012 allows the application of the Code of Criminal Procedure, 1973, only in terms of trial procedures. Section 33 of the POCSO Act, 2012, governs the cognizance process.
Further, Section 42-A of the POCSO Act states that provisions of the POCSO Act shall override other laws in case of inconsistency.
The Bench explained:
“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…”
“…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.”
COURT’S CONCLUSION
The Court found that:
The summoning order was procedurally flawed.
It was not based on a police report or formal complaint implicating the applicant.
It was solely based on the victim’s statement recorded under Section 183 BNSS, which is not legally sufficient for cognizance under Section 33 of the POCSO Act.
Accordingly, the High Court:
Set aside the impugned order dated 07.10.2024.
Remitted the matter back to the Special Judge, POCSO Act/Additional Sessions Judge, Bareilly.Directed the trial court to pass a fresh order in strict accordance with Section 33 of the POCSO Act, 2012.
