21 March 2022 12:47 PM GMT
A 2-judge bench of the Supreme Court has delivered a split verdict on the issue whether Section 155(2) of the Code of Criminal Procedure will apply to the investigation of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).As per Section 155(2) CrPC, a police officer cannot investigate a non-cognizable offence without the order of a Magistrate....
A 2-judge bench of the Supreme Court has delivered a split verdict on the issue whether Section 155(2) of the Code of Criminal Procedure will apply to the investigation of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).
As per Section 155(2) CrPC, a police officer cannot investigate a non-cognizable offence without the order of a Magistrate. Section 23 of POCSO relates to the offence of disclosure of the identity of the victim of the sexual offence.
A bench comprising Justice Indira Banerjee and Justice JK Maheshwari was considering an appeal filed by the Editor of a Kannada newspaper, who was accused of committing the offence under Section 23 of POCSO Act by publishing the identity of a 16 year old girl who was subjected to sexual crime. The appellant had sought for discharge before the Magistrate on the ground that the police registered the FIR without following Section 155(2) CrPC. The Magistrate dismissed his application. He approached the High Court against the Magistrate's order under Section 482 CrPC, which also resulted in no success for him. Thus, the matter reached the Supreme Court.
The Supreme Court narrated the issue involved in the case as follows :
"The short question of law involved in this appeal is, whether Section 155(2) of the Cr.P.C. applies to the investigation of an offence under Section 23 of POCSO? 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?"
While Justice Banerjee held that the Magistrate's permission was not needed for the police to investigate the offence under Section 23 POCSO, Justice Maheshwari held otherwise. In view of the split verdict, the matter has been referred to the Chief Justice of India to constitute an appropriate bench to resolve the issue.
Justice Banerjee's analysis
Senior Advocate Devadatt Kamat, appearing for the appellant, had argued that Section 23 POCSO was a non-cognizable offence, as the maximum punishment is one year imprisonment. As per Part II of Schedule I of CrPC, offences with imprisonment of less than 3 years are classified a non-cognizable offences.
It was his further argument that Section 19 of POCSO, which refers to the process for investigation of POCSO offences, does not include Section 23. Section 23 does not exclude the provisions of CrPC. Hence, Section 155(2) CrPC, which is a mandatory provision, is applicable to Section 23, argued the senior counsel.
Justice Banerjee disagreed with the argument that Section 19 excludes Section 23 by saying :
"The language and tenor of Section 19 of POCSO 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" (Para 35).
Justice Banerjee further noted that as per Section 19(5), the Police Unit shall make immediate arrangements for the care and protection of the victim child if it is if the opinion that the child is in need of care and protection.
"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 noted(Para 36).
Justice Banerjee further noted that Section 19(6) requires the police to report the matter to the Child Welfare Committee and the Special Court without delay.
"The report is to include need, if any, of the concerned child for care and protection and steps taken in this regard. 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 noted that if the legislature had intended that Section 155(2) CrPC should apply to Section 23, it would have specifically provided so. In this regard, it was noted that Sections 31 and 33(9) of the POCSO specifically incorporates CrPC provisions in Sections 4(1) and 4(2).
Justice Banerjee also spoke about the need to protect the dignity and privacy of the chid.
"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".
"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", Justice Banerjee said while rejecting Kamat's arguments.
Justice Maheshwari's analysis
Justice Maheshwari noted that Section 19 does not state that all POCSO offences are cognizable. Section 19 also does 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.
"...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, 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"
Holding Section 155(2) CrPC to be a mandatory provision on the basis of precedents, Justice Maheshwari observed that it will apply to Section 23. The word "Magistrate" in Section 155(2) CrPC has to be understood as "Special Court" in the context of POCSO.
"...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 held.
"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", the order stated.
Case Title : Gangadhar Narayan Nayak @ Gangadhar Hiregutti versus The State of Karnataka
Citation : 2022 LiveLaw (SC) 301
Click here to read/download the judgment