Dismissed

Narendra @ Bholu v. State of Rajasthan through Pp

Rajasthan HC7 Jul 2017CRLR/480/2017

Case brief

AI extract

What is this about?

This revision petition challenging a Special Court order that rejected a bail application under Section 167(2) Cr.P.C. was dismissed. The High Court held that detention periods were legal as the offences attracted a 90-day limit and Section 193 Cr.P.C. did not restrict the Special Court's jurisdiction under the POCSO Act.

What did the court decide?

The revision petition was dismissed; the impugned order rejecting bail and allowing the Section 193 application was upheld.

Narendra @ Bholu Vs State of Rajasthan… — Pension and Retirement Benefits | Rajasthan HC (2017)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Revision No. 480 / 2017

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Narendra @ Bholu S/o Vinod Kumar B/c Brahmin, R/o Senthri, P.S. Kumher, Distt. Bharatpur (Raj.)

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Accused—Petitioner

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Versus

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State of Rajasthan Through P.P.

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----Non-Petitioner

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_____________________________________________________ For Petitioner(s) : Mr. Madhav Mitra with

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Mr. Vivek Sharma with

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Mr. Nishant Sharma

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For Respondent(s) : Mr. N.S. Shekhawat, P.P. for State For Complainant(s): Mr. N.K. Singhal

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HON'BLE MR. JUSTICE PANKAJ BHANDARI

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Order

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07/07/2017

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Petitioner has preferred this revision petition aggrieved by order dated 18.02.2017 passed by Special Court Protection Of Children From Sexual Offences Act Cases, Bharatpur (Rajasthan), whereby, application filed by the petitioner under Section 167(2) Cr.P.C. was rejected and cognizance under Sections 363, 366, 376 I.P.C. and under Sections 5/6 and 16/17 of the POCSO Act was taken.

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(2 of 5)

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[CRLR-480/2017]

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Briefly stated the facts of the case are that an F.I.R. was lodged on 08.11.2016 regarding missing of the prosecutrix from 07.11.2016. Prosecutrix was recovered on 11.11.2016 and the present petitioner was arrested on 15.11.2016, police after due investigation submitted the charge-sheet against the present petitioner under Section 363 I.P.C. on 10.02.2017 before Special Court Protection Of Children From Sexual Offences Act Cases, Bharatpur. On the same day an application under Section 167(2) Cr.P.C. was filed by the accused-petitioner and an application under Section 193 Cr.P.C. was filed by the complainant, uncle of the prosecutrix.

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The Court below adjourned the case to 13.02.2017 on which date the Presiding Officer was on leave then the matter was posted on 16.02.2017 and time was sought on behalf of the parties to file reply and argue the case. On 18.02.2017, the impugned order was passed whereby application filed by the petitioner under Section 167(2) Cr.P.C. was rejected and application filed by the complainant under Section 193 Cr.P.C. was allowed.

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It is contended by counsel for the petitioner that the police having filed charge-sheet under Section 363 Cr.P.C. only, the detention of the petitioner beyond 60 days was illegal and the petitioner was entitled to the benefit of bail.

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It is further contended that even if the case is considered to be one under the POCSO Act, since the Court has taken cognizance after 90 days the detention beyond 90 days was

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(3 of 5)

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[CRLR-480/2017]

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illegal. It is also contended that the Sessions Court is not empowered to take cognizance of an offence unless the case is committed to the Sessions Court by the Magistrate under the Code as per Section 193 Cr.P.C.

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Counsel for the complainant has opposed the revision petition. His contention is that the Court having come to the conclusion that the offence is one where the charge-sheet can be filed within 90 days and charge-sheet in this case having been filed on the 88 day, the detention, thereafter, being by the Court petitioner is not entitle to benefit of the provisions of Section 167(2) Cr.P.C. It is also contended that petitioner herein has preferred the bail application under Section 439 Cr.P.C. which was dismissed as withdrawn on 23.03.2017 which is after the date of taking of cognizance and now the petitioner cannot raise the ground of Section 167(2) Cr.P.C. It is also contended that the statement of prosecutrix was recorded under Section 164 Cr.P.C. wherein she has specifically alleged that the present petitioner has committed rape with her twice.

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I have considered the contentions and have perused the provisions of Section 167(2) Cr.P.C, proviso to Sub-Section (2) of Section 167 Cr.P.C. empowers the Magistrate to authorize the detention of the accused person but a Magistrate cannot authorize the detention of accused beyond 90 days, where the investigation relates to offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and for any other offence the Magistrate cannot authorize the detention

(4 of 5)

[CRLR-480/2017]

beyond 60 days.

In the present case in hand the police registered the case under Section 363 I.P.C. and later on added offences under Section 376 I.P.C. and Section 5/6, 16/17 of POCSO Act. The investigation thus related to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. The Magistrate was thus empowered to authorize detention for a total period up to 90 days, the outcome of the investigation has no bearing on the provisions of Section 167(2) Cr.PC. and even if the police submitted charge-sheet under Section 363 I.P.C. the detention cannot be said to be in violation of Section 167(2) Cr.P.C.

¶31

As far as the date of taking cognizance is concerned that does not have any relevance in the matter as Section 468 Cr.P.C. do not apply to offences punishable for more than three years.

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As regards Section 193 Cr.P.C. is concerned the same has no applicability to a case pertaining to POCSO Act as the POCSO Act confers jurisdiction upon the Special Court under Section 33 of the Act which specifically provides that Special Court may take cognizance of any offence without the accused being committed for trial, meaning thereby that committal of the case is not a prerequisite requirement for taking cognizance. Application filed by the complainant contained the fact which constituted the offence under the POCSO Act and therefore the Special Court had jurisdiction to take cognizance against the petitioner for the alleged offences.

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(5 of 5)

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[CRLR-480/2017]

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In view of the above, no ground is made out for interfering with the impugned order. The revision petition is accordingly, dismissed.

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(PANKAJ BHANDARI), J.

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Amit/86

Narendra @ Bholu v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

Narendra @ Bholu v. State of Rajasthan through Pp

Case brief

What is this about?

What did the court decide?

What the court decided

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