POCSO| Is investigation of disclosure of victim’s identity permissible without Magistrate’s permission? SC gives split verdict 

Supreme Court: The bench of Indira Banerjee and JK Maheshwari, JJ has given split verdict on the issue as to whether the Special Court is debarred from taking cognizance of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and obliged to discharge the accused under Section 227 CrPC, only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence.

Factual Background

The Court was hearing the appeal is against a judgment by the High Court of Karnataka, upholding an order dated 19th April 2018 passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of offence under Section 23 of POCSO.

On or about 27th October 2017, a news report was published in the Newspaper, Karavali Munjavu, regarding the sexual harassment of a 16 year old girl. On or about 30th October 2017, the victim’s mother lodged a complaint, inter alia, against the appellant i.e. Editor of the said Newspaper for disclosing the identity of the victim under Section 23 of POCSO that deals with the procedure to be followed by the Media while reporting the POCSO related cases.

The Appellant filed an application for discharge under Section 227 of the Cr.P.C. on the purported ground that an offence under Section 23 of POCSO being non-cognizable, the police could not have investigated the offence without obtaining an order of the Magistrate under Section 155(2) of the Cr.P.C. The Trial Court dismissed the application of the Appellant, whereupon the Appellant filed a Criminal Petition in the High Court under Section 482 of the Cr.P.C.

The High Court dismissed the Criminal Petition, holding that the non obstante provision of Section 19 of POCSO overrides the provisions of the Cr.P.C., including Section 155 thereof. The High Court refused to quash the proceedings initiated against the Appellant under Section 23 of POCSO.

Relevant Provision under POCSO Act

  1. Section 23 deals with the procedure to be followed by the Media while reporting the POCSO related cases.
  2. Section 19(5) provides that where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed, is in need of care and protection it shall, after recording reasons in writing, make immediate arrangements to give the child such care and protection including admitting the child into a shelter home or hospital within 24 hours of the report.
  3. Section 19(6) requires the Special Juvenile Police Unit or local police, as the case may be, to report information to the Child Welfare Committee and the Special Court or where no Special Court has been designated to the Court of Sessions without unnecessary delay, within 24 hours from the receipt of information. The report is to include need, if any, of the concerned child for care and protection and steps taken in this regard.
  4. Section 31 of POCSO, provides that the provisions of the Cr.P.C., including provisions as to bail and bonds are to 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 prosecution before a Special Court shall be deemed to be a Public Prosecutor.
  5. Section 33(9) of POCSO confers powers of a Court of Sessions on the Special Court to try offences under POCSO, also has nothing to do with the reporting or investigation of an offence. Subject to the provisions of POCSO, the Special Court is to try an offence under POCSO, as if it were a Court of Sessions “as far as may be”, in accordance with the procedure 17 specified in the Cr.P.C. for trial before a Sessions Court. Neither Section 31 nor Section 33(9) of POCSO makes any reference to investigation.

Relevant provisions of CrPC

  1. Section 4(1) requires all offences under the Penal Code, 1860 to be investigated, inquired into, tried or otherwise dealt with according to the CrPC.
  2. Section 4(2) requires all offences under any other law to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the CrPC, subject to any enactment for the time being in force, regulating the manner and place of investigating, inquiring into, trying or otherwise dealing with offences.
  3. Section 5 categorically states that nothing in the CrPC shall, in the absence of a specific provision to the contrary, affect any special 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.
  4. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate.

Justice Banerjee’s opinion

Banerjee, J refused to accept the argument of the Appellant that the proceedings were vitiated and liable to be quashed or the Appellant was liable to be discharged without trial, only because of want of prior permission of the jurisdictional Magistrate to investigate into the alleged offence.

On a combined reading of Sections 4(1) and (2) with Section 5 of the Cr.P.C., all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the Cr.P.C. and all offences under any other law are to be investigated, inquired into, tried or otherwise dealt with, according to the same provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences. POCSO is a special law for protection of children against sexual abuse.

Applying the well settled principle that legislative intent is to be construed from the words used in the statute, as per their plain meaning, Banerjee. J observed that had Legislature intended that the CrPC should apply to investigation of an offence under Section 23 of POCSO, would specifically have provided so. The expression “investigation” would, as in Section 4(1) or (2) of the CrPC, have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO.

She explained that the language and tenor of Section 19 of POCSO, that deals with reporting of offence, and sub-sections thereof makes it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO. This is patently clear from the language and tenor of Section 19(1), which reads “…. any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed……”. The expression “offence” in Section 19 of POCSO would include all offences under POCSO including offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault.

Banerjee, J was of the opinion that a child against whom offence under Section 23 of POCSO has been committed, by disclosure of her identity, may require special protection, care and even shelter, necessitating expeditious investigation for compliance of sub-sections (5) and (6) of Section 19 of POCSO.

“POCSO not only protects children from sexual offences but also protects the interests of children in general, as victims as well as witnesses. The right of a child to dignity not only requires that the child be protected from offences of sexual assault, sexual harassment and pornography but also requires that the dignity of a child be safeguarded. Disclosure of the identity of a child who is a victim of sexual offences or who is in conflict with the law is in fundamental breach of the right of the child to dignity, the right not to be embarrassed.”

Justice Maheshwari’s Opinion

Under the POSCO Act, it is not clear all the offences under the said Act are cognizable or some are non-cognizable. However, the Court may have to take the assistance from the provisions of CrPC on the said issue.

The offence under Section 23 is non-cognizable and Section 19 or other provisions of POCSO Act do not confer power for investigation except to specify the manner of reporting the offence. However, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or non-cognizable offences, as mandated by sub-section (2) of Section 4 of CrPC, the procedure prescribed in CrPC ought to be followed in the matter of investigation enquiring into and trial. Section 5 of CrPC is a saving clause by which the procedure prescribed in the special enactment will prevail otherwise in absence of the provision and the procedure specified in CrPC may be applicable.

To state that all offences under POCSO Act are cognizable, would not be justified without taking note of the provisions of CrPC. It is true that to decide the cognizability and non-cognizability, the maximum sentence prescribed for the offence would be taken into consideration, but if the sentence prescribed for the offence is less than 3 years then those offences of POCSO Act would be non-cognizable. It is clarified, Section 19 of the POCSO Act overrides the provisions of Cr.P.C. only to the extent of reporting the matters to the police or SJPU and other ancillary points so specified in Section 19.

Therefore, the procedure of Section 155(2) is required to be followed in an offence of POCSO Act under Section 23 which is non-cognizable and the Special Court is required to look into the procedure followed in the investigation. As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate but in the light of Sections 2(l) and 28 of POCSO Act, the Special Courts are required to be designated to deal with offences under POCSO Act and they have been authorized under Section 33, conferring a power to such Special Courts to take cognizance. Therefore, Maheshwari, J was of the opinion that the word used in Section 155(2) be read as “Special Courts” in place of “Magistrate”, which may take cognizance of any offence under POCSO Act.

Conclusion

In view of the split verdict in the case at hand, the matter will now be placed before a larger bench.

[Gangadhar Narayan Nayak v. State of Karnataka, 2022 SCC OnLine SC 337, decided on 21.03.2022]


For appellant: Senior Advocate Devdutt Kamat

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