TEJA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant Criminal Writ Petition has been preferred on behalf of the complainant/victim of a case seeking indulgence of this Court for issuance of certain directions to the police officials concerned to conduct further investigation in the matter.

(2.) Bereft of elaborate details, briefly stated the facts of the case are that an FIR got lodged at the instance of the petitioner herein for an offence of gang rape, kidnapping, illegal confinement punishable under Sec. 376(D), 365, 342 and 34 of the IPC as well as the offence of penetrative sexual assault punishable under Sec. 3/4 of the POCSO Act. The matter was investigated by the police, however, after investigation, to a large extent, the offence was not found proved. It was the opinion of the Investigating Officer that only the offence under Sec. 363 of the IPC and 84 of the Juvenile Justice (Care and Protection of Children) Act, was found against Mahendra Bishnoi and Ashok Bishnoi and accordingly, a report under Sec. 173 Cr.P.C. came to be submitted in the Court of Judicial Magistrate, First Class.

(3.) While going through the niceties of the matter, a serious deformity and processual error has been noticed. It was the grief of the victim/complainant that an offence punishable under POCSO Act was committed upon her. After investigation the said allegation was not found proved. This court feels that an opportunity to make protest against the investigational approach and finding has to be provided to the victim/complainant so that he or she may have an occasion to plead for taking cognizance of the alleged offence before the court competent to take cognizance. Assuming for a movement that it was a simpliciter case of offences related to POCSO Act in which after investigation a negative final report is chalked out than the Final Report ought to have been submitted in the POCSO Court. Being a Special Cout, the cognizance of offence can be taken by the Special Court only. Even in such cases, after lodging of the FIR the same is supposed to be forwarded to the Court of Special Judge POCSO Act cases in compliance of Sec. 157 of the Cr.P.C. Here in this case, though there were allegations pertaining to POCSO Act also but to the extent of the above, a negative Final Report has been submitted in the Court of Judicial Magistrate 1st class. Judicial Magistrate 1st class who is not empowered to take cognizance of offence under POCSO Act. In this situation the victim/complainant has been debarred and deprived of making a protest against Final Report and pray for taking cognizance which is against the spirit of law and justice.