A two-judge Bench of Justice Indira Banerjee and Justice JK Maheshwari has pronounced a split verdict on whether Court's permission is required for investigating an offence under Section 23 of Protection of Children from Sexual Offences Act, 2012 (POCSO) for revealing the victim's identity.

Senior Counsel Mr Devdutt Kamat appeared for the Appellant while Mr Padhi appeared for the State of Karnataka before the Supreme Court.

The issue which was dealt with by the Court was –

Whether Section 155(2) of CrPC would be applicable to the investigation of an offence under Section 23 of POCSO.

Section 155(2) of CrPC states that no police officer shall investigate a non-cognizable offence without the order of the Magistrate having the power to try such case or commit the case for trial, while Section 23 of POCSO Act relates to the offence of disclosure of the identity of the victim of sexual offence.

In this case, the Appellant was the Editor of Karavali Munjavu Newspaper. 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. The victim was named in the said report. Thereafter, a complaint was lodged by the mother of the victim against the Appellant under Section 23 of the POCSO Act for disclosing the identity of the victim.

The Appellant filed an application for discharge under Section 227 of CrPC alleging that an offence under Section 23 of POCSO Act being non-cognizable, the police could not have investigated the offence without obtaining an order of the Magistrate under Section 155(2) of CrPC.

The Trial Court had dismissed the application of the Appellant after which he filed a Criminal Petition before the High Court under Section 482 CrPC, which was also dismissed. The High Court had held that the non-obstante provision of Section 19 POCSO overrides the provisions of CrPC including Section 155.

Mr Kamat, Senior Counsel for Appellant argued before the Apex Court that all offences, including an offence under Section 23 of POCSO have to be investigated and tried in accordance with CrPC.

It was argued that an offence under Section 23 of POCSO, which is punishable with maximum imprisonment which may extend to one year, is a non-cognizable and bailable offence, as per Section 2(l) read with Part II of the First Schedule of the CrPC.

The Counsel additionally argued that the mandatory provision of Section 155(2) of CrPC makes it obligatory on a Police Officer to investigate a non-cognizable case with the prior permission of the Magistrate, failing which the proceedings are liable to be quashed. The police, therefore, have no jurisdiction to investigate an offence under Section 23 of POCSO, without prior sanction of the jurisdictional Magistrate.

Justice Indira Banerjee's analysis

Mr Kamat had argued that Section 23 of POCSO does not exclude the provisions of CrPC. Section 19 of POCSO, which excludes the CrPC in respect of reporting of an offence, does not apply to an offence under Section 23 of POCSO.

Justice Banerjee disagreed with the above contention and held that Section 19 of POCSO does not exclude Section 23 and noted –

"The language and tenor of Section 19 of POCSO and subsections 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."

Further Justice Banerjee opined that under Section 19(5) of POCSO 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.

"Action under sub-section (5) of Section 19 of POCSO has to be taken with utmost expedition. Such action obviously involves investigation into whether an offence has been committed and whether the child requires special care."

Justice Banerjee further noted that as per Section 19(6) of POCSO the police shall 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.

In this context, Justice Banerjee held –

"A child, whose identity is disclosed in the media may very well be in need of care and protection. Disclosure of the identity of the child in the media may also expose the child victim of sexual offence to vindictive retaliation by the perpetrators of the crime or their accomplices."

Justice Banerjee further observed that had the Legislature intended that CrPC should apply to the investigation of an offence under Section 23 of POCSO it would have specifically provided so.

Justice Banerjee highlighted the need for a child's right to live with dignity and right to protection of privacy –

"Every child has the inalienable human right to live with dignity, grow up and develop in an atmosphere conducive to mental and physical health, be treated with equality and not be discriminated against. The inalienable rights of a child include the right to protection of privacy. The Constitution of India guarantees the aforesaid inalienable and basic rights to all, including children. The right to live with dignity, the right to personal liberty, the right to privacy, the right to equality and/or the right against discrimination, the right against exploitation, are Fundamental Rights guaranteed by Part III of the Constitution of India."

Justice Banerjee while rejecting the contention of Mr Kamat that Section 19 does not include offence under Section 23 of POCSO held –

"It is reiterated at the cost of repetition 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."

In the light of these observations, Justice Indira Banerjee dismissed the appeal.

Justice JK Maheshwari's analysis

Justice Maheshwari after referring to Section 19 of POCSO and various precedents held that Section 19 does not specify all offences under POCSO are cognizable. Further, Justice Maheshwari noted that Section 19 or other provisions of POCSO also do specify how and in what manner the investigation on reporting of commission of offence under Section 19(1) has to be made by the police.

In this context, Justice Maheshwari was of the opinion –

"Thus, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or noncognizable offences, as mandated by sub-section (2) of Section 4 of Cr.P.C., the procedure prescribed in Cr.P.C. ought to be followed in the matter of investigation enquiring into and trial. Section (5) of Cr.P.C. 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 Cr.P.C. may be applicable."

Justice Maheshwari further opined that the offence under Section 23 of POCSO is non-cognizable and Section 19 or other provisions of the POCSO Act do not confer power to investigate except to specify the manner of reporting the offence. However, as concluded as per sub-section 2 of Section 4 and applying Section 5 savings clause of Cr.P.C., in absence of having any provision in special enactment, the Cr.P.C. would apply.

While placing reliance on various precedents, Justice Maheshwari held that to investigate an offence under Section 23 of POCSO, the order as mandated under Section 155(2) of CrPC is necessary prior to investigating the offence. The word used in Section 155(2) has to be read as 'Special Courts' in place of 'Magistrate' which may take cognizance under the POCSO Act.

"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," Justice Maheshwari observed.

In the light of these observations, Justice Maheshwari allowed the appeal.

Matter referred for assignment

The order of the Court read "Since the Bench has not been able to agree, the Registry is directed to forthwith place the matter before Hon'ble the Chief Justice of India, for assignment before an appropriate Bench."

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