The Supreme Court dealt with an appeal filed by an accused under Section 23 of the POCSO Act which lays down the procedure to be followed by the Media in POCSO cases.
The Appellant is the Editor of a local newspaper. In 2017, a news report was published in the Newspaper, regarding the sexual harassment of a 16-year-old girl. Police filed its investigation report under Section 173 of the Cr.P.C. in the Court of the Principal District Judge, who took cognizance of the offence alleged and issued summons to the Appellant. Thereafter, the Appellant filed an application for discharge under Section 227 of the CrPC on the ground that an offence under Section 23 of POCSO is non-cognizable, the police couldn’t 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 Appellant’s application. The Appellant filed a Criminal Petition in the High Court of Karnataka under Section 482 of the Cr.P.C. which got dismissed too. Thereafter, the Appellant filed an appeal in the Supreme Court against the High Court’s decision.
The main questions of law involved in this appeal were,
- Whether Section 155(2) of the CrPC applies to the investigation of an offence under Section 23 of POCSO?
- Whether the Special Court debarred from taking cognizance of an offence under Section 23 of POCSO and obliged to discharge the accused under Section 227 of the CrPC, only because of want of permission of the jurisdictional Magistrate to the police to investigate into the offence?
The impugned judgment and order passed by 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.
The division bench comprising of Justice Indira Banerjee and Justice J.K. Maheshwari has come up with a split verdict.
Justice Banerjee’s observations
Justice Indira Banerjee agreed with the view taken by the High Court, considering that, “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.”
The Justice Banerjee further noted that sub-section (5) of Section 19 of POCSO provides that the police, upon being satisfied, needs make immediate arrangements to give care and protection to the child. Such action obviously involves investigation into whether an offence has been committed and whether the child requires special care. As per Sub-section (6) of Section 19 of POCSO the police is required to report information to the Child Welfare Committee and the Special Court or the Court of Sessions within 24 hours from the receipt of information. The report has to include need of the concerned child for care and protection and steps taken in this regard.
Joining the dots, Justice Banerjee explained that, “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.”
The Hon’ble Judge lamented, “In our society, victims of sexual offence are, more often than not, treated as the abettor, if not perpetrator of the crime, even though the victim may be absolutely innocent. Instead of empathizing with the victim people start finding fault with the victim. The victim is ridiculed, defamed, gossiped about, and even ostracized.”
Justice Banerjee emphasised that words “offence under this Act” in Section 19(1) of POCSO makes it clear that Section 19 includes all offences under POCSO including offence under Section 23 of POCSO, and thus upheld the impugned judgment and order of the High Court.
Justice Maheshwari’s observations
On the other hand, Justice Maheshwari highlighted that the POCSO Act does not clarify regarding cognizable and non-cognizable offences, which makes the definition of the cognizable and non-cognizable offence under CrPC relevant. It is clear that the sentence with imprisonment for less than 3 year or with fine if prescribed in that law, then commission of such offence will be non-cognizable, bailable and triable by any magistrate. In the present case, an offence under Section 23 of POCSO Act has been allegedly committed, which is punishable with imprisonment for a period not less than 6 months but it may extend to 1 year or with fine or with both.
Justice Maheshwari further noted, “Looking to the language of Section 19, it does not specify all the offences under the POCSO Act are cognizable. Simultaneously either Section 19 or other provisions of the POCSO Act also do not specify how and in what manner the investigation be made… It is true that the provisions of the POCSO Act override the provisions of Cr.P.C. being special enactment only to the extent of having corresponding provision.”
It was further noted that under the POCSO Act, Special Courts are required to be designated to deal with offences under the POCSO Act and they have been authorized under Section 33, conferring a power to such Special Courts to take cognizance. “Therefore, 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. 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.”
According to Justice Maheshwari the High Court committed a mistake by confirming the incorrect notion regarding overriding effect of the provision of Section 19 of the POCSO Act.
Hence, Justice Maheshwari allowed the appeal and set aside the impugned Judgement passed by the Karnataka High Court, stating that the Special Court is at liberty to follow the procedure prescribed in the matter of investigation of non-cognizable offences.
Since the judges arrived at conflicting decisions, the division bench directed the Registry to place the matter before the Chief Justice of India, for assignment before an appropriate Bench.
Case Title: Gangadhar Narayan Nayak @ Gangadhar Hiregutti v. State of Karnataka & Ors.
Bench: Justice Indira Banerjee, Justice JK Maheshwari
Judgement Date: 21st March 2022
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