MUSTRI KHATOON @ MUSTARI KHATOON vs THE STATE OF BIHAR

Court
Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.54870 of 2019
Arising Out of PS. Case No.-4 Year-2019 Thana- DAUDNAGAR District- Aurangabad
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MUSTRI KHATOON @ MUSTARI KHATOON D/o of Late Abul Hasan
Khan and W/o Gulsher Ahmad Resident of Purana Sahar, Nalband Toli, Ward
No.8, P.S.-Daudnagar, District-Aurangabad (Bihar).
... ... Petitioner/s
Versus
1. THE STATE OF BIHAR
2. Saddam Hussain Son of Munir Khan @ Munigar Khan Resident of Village-
Kurmi Tola, P.S-Daudnagar, District-Aurangabad.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Bhaskar Shankar, Adv.
For the Opposite Party/s : Mr. Md. Ataur Rahman, APP
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CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
Date : 23-06-2026
Heard learned counsel for the petitioner and learned
Additional Public Prosecutor for the State.
2. This application has been filed for quashing the order
of cognizance dated 30.03.2019 passed by the learned
Additional Sessions Judge, Special (Excise), Aurangabad in
CIS/G.R. No. 10 of 2019, T.R. No. 723 of 2019, arising out of
Daudnagar P.S. Case No. 4 of 2019, whereby cognizance has
been taken only under Sections 341 and 323 of the Indian Penal
Code and Section 37(b)(c) of the Bihar Prohibition and Excise
Act, 2016, and not under Section 8 of the Protection of Children
from Sexual Offences Act, 2012.

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3. The first information report was lodged with the
allegation that the minor son of the informant was taken away
by the accused and that unnatural sex was committed with him.
The child has said the same thing in his statement recorded
under Section 164 of the Code of Criminal Procedure, 1973.
After investigation the police submitted charge-sheet no. 23 of
2019 dated 31.01.2019 under Section 37(b)(c) of the Bihar
Prohibition and Excise Act, 2016, Sections 341 and 323 of the
Indian Penal Code and Section 8 of the Protection of Children
from Sexual Offences Act, 2012.
4. The record went to the Special (Excise) Court. By
order dated 30.03.2019 that Court took cognizance only under
Sections 323 and 341 of the Indian Penal Code and Section
37(b)(c) of the Bihar Prohibition and Excise Act, 2016. The
order does not so much as notice that the charge-sheet had also
been submitted under Section 8 of the POCSO Act. No reason is
assigned for leaving that offence out. An order of cognizance
which is silent upon a part of the police report placed before the
Court is an order passed without application of mind. On this
score alone the order is liable to be set aside.
5. Learned counsel for the petitioner has also raised a
question as to the jurisdiction of the Excise Court to take

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cognizance in such a matter or to deal with the case at all. He
submits that Section 28(2) of the POCSO Act, 2012 provides as
follows: “While trying an offence under this Act, a Special
Court shall also try an offence [other than the offence referred
to in sub-section (1)], with which the accused may, under the
Code of Criminal Procedure, 1973 (2 of 1974) be charged at the
same trial.” Section 42A of the POCSO Act, 2012 states as
under: “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.” It is not correct to
say, as was faintly urged, that no provision of this kind is to be
found anywhere else. Section 36-A(2) of the Narcotic Drugs and
Psychotropic Substances Act, 1985 is in substantially the same
terms. The question here is a narrower one and it is about the
Bihar Prohibition and Excise Act, 2016 alone.
6. The relevant provisions of that Act were looked at.
Section 83 provides that notwithstanding Section 76(1), all
offences punishable under the Act shall be tried by the Court of
Sessions. Section 84(1) permits the State Government, in
consultation with the Chief Justice of the High Court, to

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establish or designate Special Courts in every district for the
trial of all or any of the offences under the Act. Section 84(3)
gives the trial under the Act precedence over the trial of any
other case against the accused in any Court not being a Special
Court. Section 85(1) permits the Special Judge to take
cognizance without the accused being committed to him.
7. What is nowhere to be found in that Act is any
provision answering to Section 28(2) of the POCSO Act. There
is no power in the Special (Excise) Court to try, along with an
offence under the Excise Act, an offence under some other
enactment at the same trial. The Legislature knew how to confer
such a power when it wished to confer it. It conferred it by
Section 28(2) of the POCSO Act. It conferred it by Section 36-
A(2) of the Narcotic Drugs and Psychotropic Substances Act,
1985. It did not confer it here. The nearest the Excise Act comes
to the subject is Section 86, which is a power to transfer cases to
the regular Court and which runs in the opposite direction. It
contemplates the Special Court finding an offence not triable by
it and obliges the Court to send that offence out to the Court
having jurisdiction under the Code. Where the offence and the
forum do not match, the technique of the Act is transfer and not
accretion.

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8. Section 84(3) does not carry the matter further.
Precedence of trial is a question of the order in which cases are
taken up. It is not a grant of jurisdiction over subject matter and
it cannot supply a jurisdiction which the Act nowhere confers.
Section 42A of the POCSO Act then resolves whatever
inconsistency remains and resolves it in favour of the POCSO
Act. It follows that where a single police report discloses an
offence under the POCSO Act along with an offence under the
Bihar Prohibition and Excise Act, 2016 arising out of the same
transaction, cognizance is to be taken and the trial held by the
Special Court under the POCSO Act.
9. Whatever view the learned Additional Sessions Judge,
Special (Excise), Aurangabad may have taken of his own
jurisdiction, he was bound to say something about an offence
which the police had charge-sheeted and which lay before him.
He said nothing at all about it. The victim is a boy of school-
going age and the case has now been on the wrong file for seven
years.
10. For the reasons in paragraphs 4, 7 and 8 above, the
order of cognizance dated 30.03.2019 passed by the learned
Additional Sessions Judge, Special (Excise), Aurangabad in
CIS/G.R. No. 10 of 2019, T.R. No. 723 of 2019, arising out of

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Daudnagar P.S. Case No. 4 of 2019, is hereby quashed.
11. The learned Additional Sessions Judge, Special
(Excise), Aurangabad shall transmit the entire record to the
Special Court under the POCSO Act, Aurangabad, within two
weeks from the date of receipt of a copy of this order. This
proceeding was pending on the date of commencement of the
Bharatiya Nagarik Suraksha Sanhita, 2023 and is saved by
clause (a) of sub-section (2) of Section 531 of that Sanhita. The
Special Court under the POCSO Act shall accordingly consider
the materials collected in the course of investigation and take
cognizance in accordance with the Code of Criminal Procedure,
1973. Nothing in this order shall be read as confining that Court
to the sections stated in the charge-sheet, and it shall be open to
it to take cognizance of such offences as the materials disclose.
12. The application stands allowed in the above terms.

(Ansul, J)
Siddharth Soni/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 16.07.2026
Transmission Date 16.07.2026