 of the Protection of Children from Sexual Offences (POCSO) Act, is non-cognizable offence){kind=link}
The Supreme Court two-Judge Bench given a split verdict over the question of law as to whether an offence under Section 23 (relates to the offence of disclosure of the identity of the victim of the sexual offence) of the Protection of Children from Sexual Offences (POCSO) Act, is non-cognizable offence and thus, prior permission of the magistrate has to be taken by police before investigation.
Justice Indira Banerjee has held that Section 23 of POCSO, incorporated to prevent disclosure of the identity of victim and proceedings emanating from it, cannot be vitiated on the ground that prior permission of Magistrate should be taken by Police to start investigation. Whereas, Justice JK Maheshwari has held that in absence of any procedure for investigation under the POCSO Act, either for cognisable or non-cognisable offences, the procedure prescribed in CrPC ought to be followed in the matter of investigation, enquiring into and trial.
As per the Code of Criminal Procedure CrPC, cognizable offences those offences for which a police officer may arrest a person without a warrant. On other hand, for a non-cognizable police officer has no authority to arrest without a warrant. The section 155(2) of the CrPC makes it obligatory for a police officer to investigate a non-cognizable case with the prior permission of the Magistrate.
The issue before the court as to whether Section 155(2) of the Cr.P.C. applies to the investigation of an offence under Section 23 of Protection of Children from Sexual Offences Act, 2012 (POCSO) and 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?
The two Judge bench comprising Justice Indira Banerjee and Justice JK Maheshwari was considering an appeal against a judgment and order dated 17th September 2021 passed by the Dharwad Bench of the High Court of Karnataka, dismissing Criminal Petition filed by the Appellant under Section 482 of the Code of Criminal Procedure ( Cr.P.C.), and 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 the POCSO Act.The Appellant is the Editor of Karavali Munjavu Newspaper. On or about 27th October 2017, a news report was published in the Newspaper, regarding the sexual harassment of a 16 year old girl. The victim was named in the said report.
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.
By the impugned judgment and order dated 17th September 2021, the High Court has 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.
Justice Indira Banerjee’s reasoning
Justice Indira Banerjee observed that Unlike Section 4(1) of the Cr.P.C., which requires all offences under the Indian Penal Code, 1860, to be investigated, inquired into, tried or otherwise dealt with according to the Cr.P.C., Section 4(2) of the Cr.P.C. requires all offences under any other law to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the Cr.P.C., 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.
Moreover, sub-section (5) of Section 19 of POCSO 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. 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.
“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 said.
Justice Banerjee further observed 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. 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.
“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”, verdict of the Justice Banerjee reads who dismissed the appeal.
Justice JK Maheshwari’s reasoning
On the other hand Justice JK Maheshwari held that the provisions of Cr.P.C. would not tinker with the provisions of special enactment and they are saved to such extent as specified in Section 5 of Cr.P.C. and would be applicable as per Section 4(2) of the Cr.P.C.
“… 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 further observed that the ‘trial flows cognizance and cognizance is preceded by investigation’, which is the basic scheme for the Court to cognizable cases. It is observed that, it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Then Court proceeded to decide the breach of mandatory provisions regulating the competence or procedure of the Court as regards cognizance or trial. In the said context, in reference to Sections 190 and 537 of Cr.P.C., the Court said that, for breach of mandatory provision relating to investigation, it cannot be set-aside unless the illegality in the investigation can be shown to have been brought miscarriage of justice as it does not affect the competence and jurisdiction of trial court.
The Court further observed that, if the breach of mandatory provision is brought to the knowledge of Court at sufficiently early stage, the Court while not declining cognizance will have to take necessary steps to get illegality cured and the defect rectified by ordering such re-investigation looking into circumstances of case. If the attention of the Court is called to such illegality at very early stage, it would be fair to the accused not to obviate the prejudice that may have been caused thereby, by passing the appropriate orders at that stage and not leave him to ultimate remedy of waiting till conclusion of trial.
The Court said that granting of such permission is not to be taken by Magistrate as a matter of routine but it is in exercise of his judicial discretion having regard to the policy underlying it. The Court observed that when such a breach is brought to the notice of court at early stage of trial, the Court has to consider the nature and extent of the violation and pass appropriate order for re-investigation as may be called for, wholly or partly or whatever is appropriate.
“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. The order of taking cognizance passed by the Special Court after filing the charge-sheet passed on 19.04.2018, merely reflect that after perusal of documents as per list which is verified, the Court has taken cognizance. The Court has not looked into the vital aspect of following the procedure of Section 155(2) of Cr.P.C. Therefore, at the earliest when the application for discharge was filed, it was dismissed by order impugned dated 28.08.2020 with the incorrect notion regarding overriding effect to the provision of Section 19 of POCSO Act, confirmed by High Court. In my considered opinion, the order taking cognizance and to pass consequential order rejecting the application for discharge is not in accordance with law. The view taken by this Court in case of Keshav Lal Thakur relating to a case of non-cognizable offence, is aptly applicable in the facts of the present case,” order of Justice JK Maheshwari reads who allowed the appeal.
Since the Bench has not been able to agree, the Bench directed the Registry to place the matter before the Chief Justice of India, for assignment before an appropriate Bench.