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A division bench of Justices Indira Banerjee and JK Maheshwari on Monday gave divergent opinions on the legal issue of whether Section 155(2) of the Code of Criminal Procedure (CrPC) applies to the investigation of an offence under Section 23 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act), i.e. whether a police officer requires a magistrate’s nod before investigating into case of disclosure of a child victim under the POCSO Act.
One Gangadhar Narayan Nayak, the Editor of Karavali Munjavu Newspaper had approached the Top Court after his criminal petition filed under Section 482 CrPC was dismissed by the Karnataka High Court, whilst upholding an order passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against him of offence under Section 23 POCSO Act.
A news report was published in Karavali Munjavu, regarding the sexual harassment of a 16 year old girl. The victim was named in the said report.
The Karnataka High Court in its impugned judgment held that the non obstante provision of Section 19 of POCSO which deals with reporting of offences to concerned authorities overrides the provisions of the Cr.P.C., including Section 155 thereof.
While Justice Banerjee dismissed the appeal, Justice Maheshwari, disagreeing with the view expressed by Justice Banerjee, allowed the appeal.
"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.", ordered the Top Court.
Section 155(2) CrPC states that a police officer cannot investigate a non-cognizable offence without the order of a Magistrate.
Section 23 of POCSO lays down the procedure for media in reporting cases of sexual assault and states that no person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy and would not disclose the identity of victim of sexual offence.
"Is 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 Cr.P.C., only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence?", questioned the Top Court.
Justice Indira Banerjee's opinion:
On a combined reading of Sections 4(1) and (2) with Section 5 of the CrPC, Justice Banerjerr was of the view that all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the CrPC 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 CrPC, subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences.
Justice Banrjee further said that language and tenor of Section 19 of POCSO and sub-sections thereof made it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO.
"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....", she held.
Referring to the appellants argument that Section 31 of POCSO provides that the provisions of the CrPC, including provisions as to bail and bonds are to apply to the proceedings before a Special Court, Justice Banerjee said,
"Had Legislature intended that the Cr.P.C. 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 Cr.P.C., have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO."
Justice Banerjee further said how in the Indian 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.", she added.
Placing reliance on Section 228A of IPC, Sub-section (2) of Section 327 of the CrPC and Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015, Justice Banerjee said that the object of all such provisions is to prevent disclosure of the identity of the victim.
She further observed that every child has the inalienable human right to live with dignity, grow up and develop in an atmosphere conducive to mental and physical health, and these inalienable rights include the right to protection of privacy.
With this view Justice Banerjee held,
"I am unable 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. The Appellant would have to defend the proceedings initiated against him under Section 23 of the POCSO on merits."
Justice JK Maheshwari's opinion:
Justice Maheshwari formulated three questions for his consideration, namely,
Noting that Section 19 does not state that all POCSO offences are cognizable, Justice Maheshwari further noted that Section 19 also did not provide how and in what manner the investigation on reporting of the offences ought to be made
"Thus, 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 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 said.
He further noted that the language of Section 155(2) made it clear and in terms it was mandatory that no police officer shall investigate a non-cognizable case without the order of the Magistrate.
"Therefore, the said provision is mandatory and required to be complied with prior to investigating a non-cognizable offence", he held while allowing the appeal.
Case Title: Gangadhar Narayan Nayak @ Gangadhar Hiregutti v. State of Karnataka & Ors.
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