Appropriate Procedure for Remand of Accused under

Protection of Children from Sexual Offences Act:

Rakesh Kumar Singh*

Parliament with a view to provide more deterrent effect on the

offenders of sexual offences legislated a new Act called Protection of
Children from Sexual Offences Act in the year 2012 which came into effect
from 14.11.2012. The Act provides for stringent punishment. However, it
seems that the Act suffers from bad drafting and the same is giving tough
time to judicial establishment which naturally will result in irregular/illegal
orders being passed by the judiciary. The most glaring defect is in respect of
production and remand of arrested accused. The question being raised is
about the authority who is competent to remand such accused. The Act does
not have any direct provision in this respect and the Code prescribes (so far
as subsequent remand is concerned) for the magistrate having jurisdiction.
Whereas the Act does not give jurisdiction to the Magistrate. In such
circumstances, courts are facing problem as in some areas Magistrates are
compelled to remand the accused, in some areas Magistrates are voluntarily
remanding the accused without any discussion and in some areas the
Special Courts are making remand orders. Meaning thereby that same
provisions are being interpreted differently in Delhi by different courts
which can not be said to be a healthy practice. The present paper is a humble
attempt to prepare a correct procedure for such cases.
2. In the normal course, following provisions deal with the after effect of
the arrest of any person. Section-56 Cr.PC reads as under:
“56. Person arrested to be taken before Magistrate or officer
in charge of police station.-
A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to
bail, take or send the person arrested before a Magistrate having
jurisdiction in the case, or before the officer in charge of a police
station.”

* Metropolitan Magistrate, Karkardooma Court, New Delhi

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Section-57 Cr.PC reads as under:
“57. Person arrested not to be detained more than twenty-
four hours.- No police officer shall detain in custody a person
arrested without warrant for a longer period than under all the
circumstances of the case is reasonable, and such period shall not, in
the absence of a special order of a Magistrate under section 167,
exceed twenty four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's court.”
Article-22(2) of the Constitution of India reads as under:
“22(2) Every person who is arrested and detained in custody
shall be produced before the nearest magistrate within a period of
twenty four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and no
such person shall be detained in custody beyond the said period
without the authority of a magistrate.”
2.1. Clearly, an arrested person has to be produced before a Magistrate
within 24 hours and there cannot be any escape from it. What will
be the procedure after production of the accused has been dealt
with in Section-167 Cr.PC which to the extent of relevancy in
present context reads as under:
“167. Procedure when investigation cannot be completed in
twenty-four hours.- (1) Whenever any person is arrested and
detained in custody, and it appears that the investigation cannot be
completed within the period of twenty-four hours fixed by section 57,
and there are grounds for believing that the accusation or information
is well-founded, the officer in charge of the police station or the police
officer making the investigation, if he is not below the rank of sub-
inspector, shall forthwith transmit to the nearest Judicial Magistrate
a copy of the entries in the diary hereinafter prescribed relating to the
case, and shall at the same time forward the accused to such
Magistrate. (2) The Magistrate to whom an accused person is
forwarded under this section may, whether he has or not jurisdiction
to try the case, from time to time, authorise the detention of the
accused in such custody as such Magistrate thinks fit, for a term not
exceeding fifteen days in the whole; and if he has no jurisdiction to try
the case or commit it for trial, and considers further detention
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 unnecessary, he may order the accused to be forwarded to a Magistrate
having such jurisdiction:”
2.2. Police is obliged to produce the accused before the nearest
Magistrate. In the context of Delhi, the nearest Magistrate is
bound to be the Ilaqa Magistrate or on holidays, the duty
Magistrate and the police is not required to search any other
executive magistrate as the administrative policy adopted in
Delhi does not allow absence of Magistracy on any occasion.
2.3. In the present paper, however, we will see that in the context of
POCSO Act, we have to read “Special Court” instead of
“Magistrate” in Section-167. Therefore, nearest magistrate can
also be the nearest special court for POCSO Act.
2.4. From the above provisions, it appears that when the accused is
produced before such Magistrate, he has discretion to remand the
accused to such custody as he thinks fit for a total period of 15
days irrespective of the jurisdictional competence.
3. Proceeding in respect of offences under other laws is governed by
Section-4 and Section-5 of Cr.PC and Section-42A of POCSO Act which
read as under:
“4. Trial of offences under the Indian Penal Code and other laws.-
(1) All offences under the Indian Penal Code (45 of 1860) shall be
investigated, inquired into, tried, and otherwise dealt with according
to the provision hereinafter contained. (2) All offences under any
other law shall be investigated, inquired into, tried, and otherwise
dealt with according to the same provisions, but subject to any
enactment for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such
offences.”
“5. Saving.- Nothing contained in this Code shall, in the absence of a
specific provision to the contrary, affect any special or local law for
the time being in force, or any special jurisdiction or power conferred,
or any special form of procedure prescribed, by any other law for the
time being in force.”

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 “42A. Act not in derogation of any other law : The provisions
of this Act shall be in addition to and not in derogation of the
provisions 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 provisions of any such law to the extent of the
inconsistency.”
3.1. Clearly, unless the POCSO Act provides some different
procedure, we have to follow the provisions of CrPC. The present
discussion is about the remand proceeding for an offence
punishable under a special Act i.e. POCSO Act. We have to see
whether POCSO Act provides any other procedure for
production or remand of accused or not.
4. CHAPTER-V: of the Act is titled as PROCEDURE FOR REPORTING
OF CASES and its Section-19 to the relevant extent reads as under:
“19. (1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, any person (including the child), who
apprehends that an offence under this Act is likely to be committed or
has knowledge that such an offence has been committed, he shall
provide such information to, (a) the Special Juvenile Police Unit; or
(b) the local police. (2) Every report given under sub-section (1) shall
be (a) ascribed an entry number and recorded in writing; (b) be read
over to the informant; (c) shall be entered in a book to be kept by the
Police Unit. ***** (6) The Special Juvenile Police Unit or local
police shall, without unnecessary delay but within a period of twenty-
four hours, report the matter to the Child Welfare Committee and
Special Court or where no Special Court has been designated, to the
Court of Session, including need of the child for care and protection
and steps taken in this regard.”
4.1. Pertinently, Section-157 Cr.PC obliges the police to send the
report to the Magistrate empowered to take cognizance, whereas
Section-19(6) of POCSO Act obliges the police to send a report to
the Special Court. To this extent procedure prescribed in the
special Act is different and therefore by virtue of subject clause of

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 Section-4(2) and Section-5, the same has to be followed.
4.2. However, there is no provision in the POCSO Act corresponding
to or similar in nature of Section-56, 57 and 167 Cr.PC.
Therefore, by virtue of Section-4(2) Cr.PC, the procedure
prescribed in the Cr.PC for production and remand of accused
have to be followed.
5. Such procedure has already been discussed above. As such, even for
the offences under POCSO Act, the arrested accused has to be
produced before the Ilaqa/Duty Magistrate as the case may be so far as
Delhi is concerned. Such Ilaqa/Duty Magistrate may remand the
accused for first 15 days.
5.1. However, Section-167(2) Cr.PC further provides that if such
Magistrate does not have jurisdiction to commit or try the case, he
may forward the accused to the Magistrate having such
jurisdiction. Certainly, this prescription is not for the first
production of the accused as provision provides in the starting
phase that Magistrate may authorize detention irrespective of
jurisdiction (for convenience this Magistrate may be called as
“Initial Magistrate”). It is clear that such Magistrate has to
consider jurisdictional prescription upon first remand. Though
seemingly, the forwarding part uses an expression “may” and
therefore some fertile mind can contend that the Magistrate is not
required to forward the accused to the Magistrate having
jurisdiction (for convenience this Magistrate may be called as
“Jurisdictional Magistrate”). It however seems that such a
contention can not be accepted. If this was the intention of the
legislature, there was not even a need for enacting such
prescription. It is well settled law that in certain circumstances
even an expression “may” can be deemed to be mandatory. The
“Initial Magistrate” has to forward the accused to the
“Jurisdictional Magistrate” upon the expiry of the first 15 days.
5.2. Who will be the “Jurisdictional Magistrate”? A Magistrate
who has jurisdiction to commit the case or to try the case may be
called “Jurisdictional Magistrate” for Section-167. Which
Magistrate can try a case? A Magistrate who has taken

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 cognizance of an offence or a Magistrate to whom a case has been
transferred or made over in accordance with the law can try the
case. Transfer and making over concept can not apply at the
initial stage and therefore we are required to consider the
cognizance part. Which Magistrate can take cognizance? The
Magistrate who has power to take cognizance under section-190
Cr.PC can take cognizance. The same Magistrate shall also have
the jurisdiction to commit the case.
5.3. For any trial or committal, the pre-requisite is cognizance. And
for taking cognizance there must be a power to take cognizance.
If there is no such power available with the Magistrate, he can not
take any cognizance. If he can not take cognizance, he can not
commit the case or try the case. And therefore he can not be a
“Jurisdictional Magistrate”.
6. We have to see whether Ilaqa Magistrate has jurisdiction to commit or
try the case under POCSO Act or not. Generally, in Delhi all Ilaqa
Magistrates do have jurisdiction to commit or try the case by virtue of
relevant provisions in the Cr.PC. However, for offences under other
laws such as POCSO Act, the procedure prescribed in Cr.PC can only
be followed if such law does not provide any other procedure. We have
to see whether POCSO Act provides any other procedure for
cognizance, committal or trial.
7. Section-31 of POCSO Act would be relevant which reads as under:
“33. (1) A Special Court may take cognizance of any offence,
without the accused being committed to it for trial, upon receiving a
complaint of facts which constitute such offence or upon a police
report of such facts.”
7.1. Clearly, power to take cognizance lies with the Special Court. The
first and foremost power of the special court is to take cognizance
of offence without any committal of the accused. Since the
provision is having a non-obstinate clause vis a vis Cr.PC, the
restriction of Section-193 thereof can not come in the way of such
sessions court while exercising power of special court. Some
fertile mind can contend that since the provision uses an
expression “May”, it can not restrict any other court from taking
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 cognizance. However, this contention can not be accepted.
Pertinently Section 190 Cr.PC also uses the expression “May” but
no one is saying that any other court can take cognizance under
Section-190 Cr.PC. In fact, the expression “May” has been
provided only as a discretion to the Court to take cognizance of
the matter or not to take cognizance. The expression “May” in
Section-190 Cr.PC and in Section-31 POCSO Act is indicative of
making of choice on merits and not on making of choice on
forums.
7.2. Though, there is now a decision of Hon'ble Supreme Court in
State vs. V Arul Kumar (2016) SCC OnLine SC 582 holding as
under:
“Sub-section (1) of Section 5, while empowering a Special
Judge to take cognizance of offence without the accused being
committed to him for trial, only has the effect of waiving the
otherwise mandatory requirement of Section 193 of the Code.
Section 193 of the Code stipulates that the Court of Session
cannot take cognizance of any offence as a Court of original
jurisdiction unless the case has been committed to it by a
Magistrate under the Code. Thus, embargo of Section 193 of the
Code has been lifted. It, however, nowhere provides that the
cognizance cannot be taken by the Magistrate at all. There is,
thus, an option given to the Special Judge to straightway take
cognizance of the offences and not to have the committal route
through a Magistrate. However, normal procedure prescribed
under Section 190 of the Code empowering the Magistrate to
take cognizance of such offences, though triable by the Court of
Session, is not given a go-bye. Both the alternatives are
available. In those cases where chargesheet is filed before the
Magistrate, he will have to commit it to the Special Judge.”
7.3. The aforesaid cannot be treated as precedent as the same
runs contrary to the earlier dictum in Essar Teleholdings
Ltd. vs. Delhi High Court, (2013) 8 SCC 1 where the
Hon'ble Supreme Court had taken the following view:

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 “The Special Judge alone can take the cognizance of the
offence specified in sub-section (1) of Section 3 and conspiracy
in relation to them. While trying any case, the Special Judge may
also try an offence other than the offence specified in sub-section
(1) of Section 3, in view of sub-section (3) of Section 4. A
Magistrate cannot take cognizance of offence as specified in
Section 3(1) of the PC Act.”
7.2. It has to be accepted that Section-31 POCSO Act excludes the
jurisdiction of Magistrate so far as taking cognizance is
concerned. Further, since a Special Court can take cognizance
without committal of an accused, the necessity of committal can
not be insisted upon. And therefore, the Magistrate can also not
have any jurisdiction for committal. Even otherwise, for any
committal proceeding, the per-requisite is taking of cognizance
which is not available for the Magistrate in POCSO Act. So he
can not exercise any committal jurisdiction.
8. Special court can take cognizance upon complaint or police report and
that too without committal. Clearly, there is no necessity that a
Magistrate first looks after the police report or complaint. Means,
complaints and police reports are not required to be filed before the
Magistrate because he cannot do anything on such complaints or
police reports. So the complaints or police reports should be filed with
the special court.
9. It is at this stage the basic problem comes into picture. As discussed
earlier, in POCSO Act cases, a Magistrate does not have any
jurisdiction. Then where would the accused be forwarded to by the
initial Magistrate upon expiry of first 15 days? The answer lies some
where else.
10. POCSO Act only provides that a Special Court can take cognizance of
offence upon complaint or police report. But it does not provide
anything as to what will happen thereafter or who will comply with
pre-cognizance formalities if any. Section-4 (2) Cr.PC provides that
offences even under any other law shall be dealt with according to the
provisions of Cr.PC subject to any other law providing separate
provisions. Section-5 Cr.PC further saves the special procedure
provided by any other enactment.
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 10.1. POCSO Act does not provide anything about the procedure to be
adopted after/before taking cognizance by the Special Court. As
such by virtue of Section-4 (2) Cr.PC, the procedure prescribed in
Cr.PC has to be followed.
10.2. In a complaint case, Cr.PC requires that procedure prescribed in
Section-200 to 204 has to be complied with. There is no doubt
that a Special Court under POCSO Act can take cognizance upon
a complaint. As such it has to follow the procedure prescribed in
Section-200 to 204 Cr.PC. These sections however use the word
“Magistrate”. Is anyone going to say that since these sections use
the word “Magistrate”, the Special Court is not required to follow
the procedure prescribed in Section-200 to 204? I think, the
answer has to be in negative. The Special Court has to follow the
procedure. And therefore we have to read “Special Court” in
section-200 to 204 instead of “Magistrate”.
10.3.Even upon taking cognizance on police report, a process
(summons or warrant) has to be issued under Section-204 Cr.PC.
Even this section uses the expression “Magistrate”. Since the
Special Court has to follow the same procedure, we have to read
“Special Court” in all such sections instead of Magistrate.
10.4. It is relevant to note that the General Clauses Act, 1897 Section
32 defines a Magistrate as including every person exercising all
or any of the powers of a Magistrate under the Code of Criminal
Procedure for the time being in force. Section 3 of the Criminal
Procedure Code provides that any reference without any
qualifying words, to a Magistrate, shall be construed, unless the
context otherwise requires in the manner stated in the sub-
sections. If the context otherwise requires the word “Magistrate”
may include Magistrates who are not specified in the section.
Read alongwith the definition of the Magistrate in the General
Clauses Act there can be no difficulty in construing the Special
Judge as a Magistrate for several provisions of CrPC.
11. At this stage, some fertile mind is bound to quote some other sections
of the POCSO Act to contend that jurisdiction must be exercised by
the Magistrate. And one of these, Section 33 reads as under:

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 “31. Save as otherwise provided in this Act, the provisions of the
Code of Criminal Procedure, 1973 (including the provisions as to bail
and bonds) shall apply to the proceedings before a Special Court and
for the purposes of the said provisions, the Special Court shall be
deemed to be a Court of Sessions and the person conducting a
prosecution before a Special Court, shall be deemed to be a Public
Prosecutor.”
11.1. At the first blush, a contention is bound to arise that since
provisions of Cr.PC are applicable and Special Court has to be
treated as the Court of Sessions for those provisions, it should not
be equated with the Magistrate and therefore, the Special Court
can not exercise any power under Section-167 Cr.PC for remand
of the accused. However, a deeper scrutiny goes to show
otherwise. The special court is not a Court of Sessions. It has only
been provided with the position by a deeming fiction and
therefore it can not stretch such deeming fiction to create a non-
existing jurisdiction in some other person or to destroy the other
provisions of the Act. Secondly, even this deeming fiction is
subject to other provisions of the Act. Certainly, the other
provision will include Section-31of the POCSO Act which
empowers the Special Court to take cognizance upon complaint
or police report. Meaning thereby that for the purpose of Section-
31of the POCSO Act, the deeming fiction will not apply and the
Special Court can not be treated as the Court of Sessions. Further,
in the absence of any contrary provision, the procedure
prescribed in Section-200 to 208 Cr.PC have to be followed by
the Special Court on taking cognizance. But those sections of the
Cr.PC do not talk about the Sessions Court and relate to the
Magistrate. However, on the other hand, by virtue of Section-33
of the POCSO Act, the Special Court is a deemed Sessions Court
for the provisions of Cr.PC.
11.2. In such circumstances, we can not apply the literal rule of
construction. We can not say that Special Court is equivalent to
Magistrate for any provisions of the Cr.PC as it would go against
the deeming fiction. However, we also can not say that Special
Court being a deeming Court of Sessions is not required to follow
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 the procedure prescribed in Section-200 to 207 Cr.PC as it would
go against the Section-4(2) Cr.PC. We have to harmonize the
deeming fiction with cognizance power and other applicable
procedure. As such, we have to read an expression “Special
Court” in Section-200 to 208 Cr.PC instead of “Magistrate”.
11.3. Similar stand has been taken by a three judges bench of Hon'ble
Supreme Court in Harshad S. Mehta v. State of Maharashtra,
(2001) 8 SCC 257though in the context of Criminal Law
Amendment Act, 1952. Following extract may be relevant:
“We may note an illustration given by Mr Salve referring to
Section 157 of the Code. Learned counsel submitted that the
report under that section is required to be sent to a Magistrate
empowered to take cognizance of offence. In relation to offence
under the Act, the Magistrate has no power to take cognizance.
That power is exclusively with the Special Court and thus report
under Section 157 of the Code will have to be sent to the Special
Court though the section requires it to be sent to the Magistrate.
It is clear that for the expression “Magistrate” in Section 157, so
far as the Act is concerned, it is required to be read as “Special
Court” and likewise in respect of other provisions of the Code. If
the expression “Special Court” is read for the expression
“Magistrate”, everything will fall in line. This harmonious
construction of the provisions of the Act and the Code makes the
Act work. That is what is required by principles of statutory
interpretation.”
12. Now if we are reading the expression “Special Court” in place of
“Magistrate” in several provisions of Cr.PC on the basis of
jurisdictional competence of taking cognizance, there seems to be no
reason as to why we should not read the same expression “Special
Court” in Section-167 Cr.PC when it talks about the jurisdictional
competence.
12.1. We should and have to read section-167 Cr.PC as if it uses
“Special Court” instead of “Magistrate”. Once read in such
manner, no doubt will remain on the board. Upon expiry of first
15 days, the “Initial Magistrate” has to forward the accused to the
“Special Court” having jurisdiction.
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 12.2. Hon'ble Supreme Court was once dealing with special judge's
power to remand under Section-167 CrPC in the context of
Criminal Law Amendment Act 1952 and made following
observations in State of T.N. v. V. Krishnaswami Naidu,(1979) 4
SCC 5:
“We will now examine the provisions of Section 167 of the Criminal
Procedure Code. Section 167 of the Criminal Procedure Code
requires that whenever any person is arrested and detained in
custody and when it appears that the investigation cannot be
completed within a period of 24 hours the police officer is
required to forward the accused to the Magistrate. The
Magistrate to whom the accused is forwarded if he is not the
Magistrate having jurisdiction to try the case may authorise the
detention of the accused in such custody as he thinks fit for a term
not exceeding 15 days on the whole. If he has no jurisdiction to
try the case and if he considers that further detention is necessary
he may order the accused to be forwarded to any Magistrate
having jurisdiction. The Magistrate having jurisdiction may
authorise the detention of the accused person otherwise than in
custody of the police beyond the period of 15 days but for a total
period not exceeding 60 days. In the present case the accused
were produced before the Special Judge who admittedly is the
person who has jurisdiction to try the case. The contention which
found favour with the High Court is that the words “Magistrate
having jurisdiction” cannot apply to a Special Judge having
jurisdiction to try the case. No doubt the word “Special Judge” is
not mentioned in Section 167 but the question is whether that
would exclude the Special Judge from being a Magistrate having
jurisdiction to try the case. The provisions of Chapter XII CrPC
relate to the information to the police and their powers of
investigation. It is seen that there are certain sections which
require the police to take directions from the Magistrate having
jurisdiction to try the case. Section 155(2) requires that no police
shall take up non-cognizable case without an order of the
Magistrate having power to try such case or commit the case for
trial. Again Section 157 requires that when the police officer has
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reason to suspect the commission of an offence which he is
empowered under Section 156 to investigate, he shall forthwith
send a report of the same to a Magistrate empowered to take
cognizance of such offence upon a police report. Section 173
requires that on the completion of every investigation under the
chapter the officer in charge of the police station shall forward to
a Magistrate empowered to take cognizance of the offence a
police report as required in the form prescribed. Section 8 of the
Criminal Law Amendment specifically empowers the Special
Judge to take cognizance of the offence without the accused
being committed to him. In taking cognizance of an offence
without the accused being committed to him he is not a Sessions
Judge for Section 193 CrPC provides that no Court of Session
Judge shall take cognizance for any offence as a court of original
jurisdiction unless the case has been committed to it by a
Magistrate under the Code. Strictly he is not a Magistrate for no
Magistrate can take cognizance as a Court of Session without
committal. The Criminal Law (Amendment) Act being an
amending Act the provisions are intended to provide for a speedy
trial of certain offences. The Criminal Law (Amendment) Act is
not intended to be a complete Code relating to procedure. The
provisions of the CrPC are not excluded unless they are
inconsistent with the Criminal Law (Amendment) Act. Thus read
there could be no difficulty in coming to the conclusion that the
CrPC is applicable when there is no conflict with the provisions
of Criminal Law (Amendment) Act. If a Special Judge who is
empowered to take cognizance without committal is not
empowered to exercise powers of remanding an accused person
produced before him or release him on bail it will lead to an
anomalous situation. A Magistrate other than a Magistrate
having jurisdiction cannot keep him in custody for more than 15
days and after the expiry of the period if the Magistrate having
jurisdiction to try the case does not include the Special Judge, it
would mean that he would have no authority to extend the period
of remand or to release him on bail. So also if the Special Judge is
not held to be a Magistrate having jurisdiction, a charge-sheet

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 under Section 173 cannot be submitted to him. It is relevant to
note that the General Clauses Act, Section 32 defines a
Magistrate as including every person exercising all or any of the
powers of a Magistrate under the Code of Criminal Procedure
for the time being in force. Section 3 of the Criminal Procedure
Code provides that any reference without any qualifying words,
to a Magistrate, shall be construed, unless the context otherwise
requires in the manner stated in the sub-sections. If the context
otherwise requires the word “Magistrate” may include
Magistrates who are not specified in the section. Read along with
the definition of the Magistrate in the General Clauses Act there
can be no difficulty in construing the Special Judge as a
Magistrate for the purposes of Section 167.”
12.3. The aforesaid ratio and reasoning has been accepted by a three
judges bench in Harshad S. Mehta vs. State of Maharashtra,
(2001) 8 SCC 257 when it stated “Mr Jethmalani, of course,
contends that to the aforesaid extent, Krishnaswami Naidu case
is not correctly decided. We are unable to accept the contention”.
12.4. In view of the above, it is clear that we have to read “Special
Court” instead of “Magistrate” in Section-167 CrPC. So even the
nearest special court can be treated as nearest magistrate under
Section-167 apart from the fact that it has to be treated as
jurisdictional magistrate.
13. However, there is one more provision in the POCSO Act which prima
facie gives trouble to any interpretation. Section-25(2) of POCSO Act
provides as under;
“25(2) The magistrate shall provide to the child and his parents or
his representative, a copy of the document specified under
section 207 of the Code, upon the final report being filed by the
police under section 173 of that Code.”
13.1. On the basis of this provision, one will say that it casts a duty
upon the Magistrate to provide copy of certain document to the
victim upon final report being filed and therefore the final report
should be filed before the Magistrate.
13.2. I however consider that such interpretation will destroy the other

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 provisions of the Act. If the final report is to be filed before the
Magistrate, he has to act on such final report. The initial act on
any such report can only be the consideration of the report for
taking or not taking the cognizance. By virtue of Section-28, only
Special Court is empowered to try the offence and the same is a
deeming sessions court under Section-31, therefore, the
Magistrate has to commit the case. But the committal is not
required for the trial of offences under POCSO Act and power of
cognizance has been given to the Special Court by virtue of
Section-33. Therefore, the Magistrate can not take the
cognizance neither commit the case. As such, the Magistrate can
not act upon the final report filed before it. But the Cr.PC does not
leave any discretion with the Magistrate not to act upon the final
report. Both the situations can not exist at the same time. So the
final report can not be filed before the Magistrate.
13.3. If final report can not be filed before the Magistrate, he
obviously can not have any document with him to be provided to
the victim. At this stage, nature of provision is required to be
understood. This particular provision falls in the Chapter-VI
titled as Procedures for Recording Statement of the Child and is a
sub-section included after sub-section-(1) of Section-25 which
talks about recording of statement of child by the Magistrate
under Section-164 Cr.PC.
13.4. Section-25(1) and 25(2) POCSO Act have used an expression
“The Magistrate”. Use of definite article “The” is indicative of
singularity and specification. Section-25(1) starts with a
condition “If” and provides for the condition for applicability of
the Section. The condition prescribed is the form “If the
statement of the child is being recorded under Section-164”.
13.5. Pertinently, Section-164 Cr.PC provides that any Metropolitan/
Judicial Magistrate can record the statement irrespective of
jurisdictional competence. Since, there is no contrary provision
in the Act on this specific issue, by virtue of Section-4(2) Cr.PC
we have to accept that even under POCSO Act, any Metropolitan
Magistrate in Delhi can record the statement of child.

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 13.6. From the above, it is clear that for the initial part of Section-25(1)
POCSO Act the Magistrate may be any Metropolitan/Judicial
Magistrate. But then this sub-section thereafter starts using a
definite article “The” before “Magistrate” and has obliged the
Magistrate to record the statement as spoken by the child.
Clearly, once a Magistrate has been chosen from “Any”, he has to
become “The Magistrate”.
13.7. Second sub-section of Section-25 again uses an expression “The
Magistrate”. If we take into account the fact that this second sub-
section falls in the same section-25 and in the Chapter relating to
the recording of statement of child, we can arrive at a conclusion
that expression “The Magistrate” appearing in Section-25(2) is
indicating the same Magistrate who is recording the statement of
the child under Section-25(1). Otherwise without existence of “a
Magistrate”, there cannot be “The Magistrate” and in Section-25
only one Magistrate exists i.e. the Magistrate who is recording
the statement of the child.
13.8. Now if any Metropolitan/Judicial Magistrate irrespective of
jurisdiction can become “The Magistrate” for the purposes of
Section-25 POCSO Act, how can we expect that he will supply
the copy of document to the child? But the provision says so.
What to do? There can not be any doubt that the provision has
been very badly drafted. But we can not do anything on such
drafting causalities. Therefore we have to construe the provision
in a manner which fulfills its purpose.
14. Inclusion of this provision in the Chapter-VI titled as Procedures for
Recording Statement of the Child and after the sub-section-(1) of
Section-25 POCSO Act of which talks about recording of statement
of child shows the intention of the Parliament in enacting the
provision. Clearly it relates only to the statement of the child.
Therefore, the only thing which is to be provided under section-25(2)
of the POCSO Act to the child is a copy of the statement. In this light if
we see this provision, use of the expression “document” will become
significant. There are several documents specified in Section-207
Cr.PC and one of the specified documents is the statement recorded

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 under Section-164. Absence of plural expression in relation to the
document in Section-25(2) indicates that the same does not talk about
other documents mentioned in Section-207 Cr.PC in the contextual
sense.
14.1. Now, if only one document is to be provided to the child, the
same can be done in certain ways. We have already noted that the
provision is a result of bad drafting and we are dealing with the
situation for providing purposive construction to the provision.
Therefore we have to fill the gaps until the Parliament chooses to
re-draft the provision. The ways of providing copy may be
indicated as following:
i. The Magistrate recording the statement may prepare a copy
of the same and send to the Special Court in separate
envelope with the original proceedings with a request to
provide the same to the child at appropriate stage so that upon
filing of final report the copy can be given to the child. After
all, the provision does not say that the Magistrate has to give
the copy to the child by his own hand;
ii. The Magistrate recording the statement may prepare a copy
of the same and retain with his office with a direction that
whenever intimation of filing of the final report is received,
the same may be given to the child;
iii. The Magistrate recording the statement may prepare a copy
of the same and may provide the same then and there to the
child as the purpose of the provision is to provide the copy
and not to implement a strict “stage wise requirement”.
? 14.2. The second way is clearly not feasible and practicable. First and
third ways may be adopted. The first way does not have any
problem. All the requirements of Section-25(2) would be
fulfilled by adopting the first way. So far as third way is
concerned, this can also not give much trouble if we read a
judgment of Division Bench of Hon'ble High Court of Delhi in
Court on Its Own Motion vs State WP(Crl.) No.-468/2010
decided on 06.12.2010. The said judgment held that copy of FIR
should be given to the accused even prior to the stage of Section-

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 207 Cr.PC. Otherwise, the only stage at which an accused was
entitled to get a copy of FIR was the stage of Section-207 Cr.PC
which comes only after filing of final report by the police.
However, the Hon'ble Division Bench made the accused entitled
to get a copy of FIR even prior to Section-207 Cr.PC. If we follow
the same line, there can not be any hesitation to adopt the third
way indicated above for providing a copy of the statement
recorded u/s-164 to the child even prior to filing of final report.
Be that as it may. Achievement of purpose is more important than
the way adopted for it so long as the way is not illegal. The
Parliamentary purpose behind enacting Section-25(2) seems to
be providing a copy of statement made u/s-164 to the child and
the same may be achieved by adopting the first or the third way
indicated above.
15. Hon'ble High Court of Bombay in Km. Shraddha Meghshyam Velhal
vs. State (Criminal Application No. 354 of 2013 in High Court of
Judicature at Bombay, dated 08.07.2013) has taken a view that all the
remand proceedings have to be dealt with only by a special court and
magistrate has no jurisdiction at all. It took support from the statement
of objects and reasons for enacting the POCSO Act which says that
special court is to be established for trial of such offences and for
matters connected therewith or incidental thereto and that the Act is
enacted for safeguarding the well being of child at every stage of the
judicial proceeding. This can hardly be accepted for holding that it
provides different procedure for remand so as to bring the same within
the exception of Section-4 and 5 CrPC. The aforesaid judgment
therefore cannot be followed.
16. From the discussion held above, we can safely say that a person
arrested for the offence under POCSO Act has to be produced and
dealt with in the following manner:
a. If Special Court of the area is available, the first production shall
be before only such court and remand shall be dealt with by such
court only;
b. Any remand after first one shall be dealt with only by the Special
Court;

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 c. If Special Court is not available for first production, the accused
shall be produced before the Illaqua MM/Duty MM as the case
may be treating him as the nearest Magistrate and irrespective of
any jurisdiction;
d. Such MM can grant remand upto 15 days but thereafter has to
forward the accused to Special Court;
e. If Special Court grants remand for a period less than 15 days on
first production and for further remand, it is not available for any
reason, MM cannot extend the custody. Reason is obvious. Only
first production can be made irrespective of jurisdiction and not
further production. It is for the system to arrangement for such
situation by making a link roaster of appropriate judges who in
the absence of presiding officer of Special Court can deal with his
work; Similarly, if Special Court after some remand is not
available, MM cannot extend the custody.
17. There are several other laws which provides for similar situations
such as Electricity Act, MACOCA (applicable to Delhi), UAPA, NIA
Act etc. It is learnt that in such laws, the Special Courts are dealing
with all or further remand proceedings. There seems to be no reason as
to why the same procedure should not be adopted for POCSO Act.

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