ANIRUDH AJAY KUMAR GARG Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this petition preferred under Article 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, the petitioner has impugned the order dated 22nd December 2020, passed by the learned Special Judge (under the POCSO Act) Mumbai, in Miscellaneous Application No.817 of 2020 in POCSO Special Case No.631 of 2020, by which the learned Special Judge rejected the petitioner 's prayer for referring the matter for investigation to the police under Section 156(3) of the Code of Criminal Procedure.

(2.) Learned Counsel for the petitioner submits that the impugned order passed by the learned Special Judge is perverse, illegal and cannot be sustained, inasmuch as, the learned Judge has failed to consider the factual matrix of the case. He submits that the observations made by the learned Special Judge that the complaint ought to have been filed by the male servant or that the complaint is premature or that it is not a counter case and as such cognizance cannot be taken, are observations which are erroneous and cannot be sustained. He submits that the learned Special Judge ought to have entertained the petitioner 's application and directed investigation under Section 156(3) of the Code of Criminal Procedure, having regard to the peculiar facts of this case.

(3.) Learned Counsel for the petitioner further submits that the petitioner had approached the Malabar Hill Police Station, Mumbai, for taking cognizance of his complaint on 14th September 2019, followed by a reminder on 23rd October 2019, however, the police failed to do so, despite the police being duty bound to investigate an offence committed by the respondent No.2 and others under Section 22 of the Protection of Children from Sexual Offences Act (for short 'POCSO Act '). Learned Counsel for the petitioner submits that the respondent No.2 had filed a false, frivolous and vexatious complaint/FIR, without an iota of truth therein, as against the petitioner and his parents and as such it was incumbent for the learned Judge to proceed as against the respondent No.2 and others. He submits that the petitioner was constrained to file an application, being Miscellaneous Application No.817 of 2020, as against the respondent Nos.2 to 8 before the learned Special Judge, as the police had miserably failed and neglected in their statutory obligation to lodge a complaint. He submits that the petitioner in the said application had prayed for a direction to the police under Section 156(3) Cr.PC. He submits that the learned Special Judge, for reasons recorded therein, which cannot be legally sustained, rejected the said prayer. He submits that as the ground on which the application was rejected, being illegal, the impugned order be quashed and set aside. Learned Counsel relied on the following Judgments in support of his submission;