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POCSO ACT: AN ANALYSIS OF COURT JUDGEMENTS

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A bench comprising of Justice Indira Banerjee and Justice J.K. Maheshwari in the recent judgment titled Gangadhar Narayan Nayak @ Gangadhar Hiregutti V. State of Karnataka & Ors. having Crl. Appeal No. 451 of 2022 delivered on 21.03.2022 gave a split verdict as to whether Section 155(2) of the Cr.P.C. applies to the investigation of an offence under Section 23 of POCSO Act or whether the Court is obliged to discharge the accused under Section 227 of the Cr.P.C. because of want of permission of the jurisdictional Magistrate to the police to investigate into the offence. The Bench further gave differentiating opinions on whether Section 19 of the POCSO Act has overriding effect to the provisions of Cr.P.C.

FACTS

The Appellant was the editor of Karavali Munjavu Newspaper in which a news was reported on or about 27th October 2017 naming the 16 year old victim of sexual harassment. After getting to know about this violation against disclosure of the name of the victim, the victim’s mother lodged a complaint on 30th October 2017 against the Appellant under Section 23 of POCSO in the Siddapur Police Station. The Police after its investigation filed the Final Report (Chargesheet) under Section 173 of the Cr.P.C. on 31st December 2017 after which the Court of the Ld. Principal District Judge, Uttar Kannada, Karwar, took cognizance of the offence. Thereafter, an application for discharge was filed by the Appellant under Section 227 of the Cr.P.C. on the premise that the investigation carried out by the Police was ultra vires since as per the mandate of Section 155(2), the police cannot investigate a matter without procuring an order from the Magistrate. The discharge application was dismissed by the Ld. Trial Court, against which a Quashing Petition was filed by the Appellant under Section 482 of the Cr.P.C. before the Hon’ble High Court of Karnataka. That the Hon’ble High Court of Karnataka vide Judgement dated 17.09.2021 refused to exercise it’s inherent jurisdiction under section 482 of Cr.P.C. and dismissed the Quashing Petition of the Appellant on the ground that the non obstante provision of Section 19 of POCSO overrides the provisions of the Cr.P.C., including Section 155. Hence the present appeal was preferred by the Appellant in the Hon’ble Supreme Court of India.

That vide the Judgement dated 21.03.2022, the Division Bench of the Hon’ble Supreme Court delivered a split verdict wherein Justice Indira Banerjee refused to entertain the Appeal thereby upholding the Order of the Hon’ble High Court whereas on the other hand, Justice J.K. Maheshwari gave a dissenting Judgement by allowing the Appeal and setting aside the Order taking cognizance and consequential orders passed by the Trial Court as well as the Impugned Order of the Hon’ble High Court.

In order to understand the contrary point of view taken by the Division Bench in the present case, it is essential that both the judgments are analysed separately.

JUSTICE INDIRA BANERJEE’S JUDGEMENT

Justice Indira Banerjee sets the field in para 1, “This appeal is against a judgment and order dated 17 September 2021 passed by the Dharwad Bench of the High Court of Karnataka, dismissing Criminal Petition No.

101420/2020 filed by the Appellant under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”), and upholding an order dated 19 April 2018 passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO”).”

To make it easy to understand the case, the issues are puts forth in para 2, “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? ”

After hearing the arguments from both sides, Justice Banerjee then puts forth in para 33, “On a combined reading of Sections 4(1) and (2) with Section 5 of the Cr.P.C., all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the Cr.P.C. 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 Cr.P.C., subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences.”

As we see, Justice Banerjee then mentions in para 35 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. 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. ”

Furthermore, Justice Banerjee then reveals in para 36 that, “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.”

Needless to say, Justice Banerjee then reveals in para 37 that, “Sub-section (6) of Section 19 of POCSO requires the Special Juvenile Police Unit or local police, as the case may be, to 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.”

To put things in perspective Justice Banerjee then envisages in para 39 that, “It is well settled that legislative intent is to be construed from the words used in the statute, as per their plain meaning. 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.”

Most significantly, Justice Banerjee then hastens to add in para 44 that, “The entire object of provisions such as Section 228A of the IPC, 327(2) of the Cr.P.C., Section 74 of the JJ Act and Section 23 of POCSO is to prevent disclosure of the identity of the victim. The identity of the victim should not be discernible from any matter published in the media.”

While rejecting the case law relied upon by the Appellant, Justice Banerjee then expounds in para 55 that, “The judgment of this Court in Keshav Lal Thakur is clearly distinguishable, in that this Court was dealing with investigation into an offence under Section 31 of the Representation of People Act, 1950. The Representation of People Act, 1950 does not contain any provision regulating the manner or place of investigation, or inquiry into any crime, or otherwise dealing with any offence under the said Act.”

As a corollary, Justice Banerjee then hastens to add in para 57 that, “Mr. Kamat’s argument that Section 19 of POCSO does not include offence under Section 23 of POCSO is unsustainable in law and not supported by any cogent reasons.” Justice Banerjee further went to explain in para 57 “As observed above, the 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 POSCO.”

Finally, Justice Banerjee then concludes by holding in para 59 that, “For the reasons discussed above, I do not find any infirmity with the impugned judgment and order of the High Court which calls for interference by this Court. The appeal is, accordingly, dismissed. ”

JUSTICE J.K. MAHESHWARI’S JUDGEMENT

To start with the dissenting judgment delivered by Justice Maheshwari, he sets the ball rolling by first and foremost putting forth in para 62 that, “The facts as succinctly stated in the order and on perusal of those, the first core

question that arises is that “In absence of any classification provided in the Protection of Children from Sexual Offences Act, 2021 (in short POCSO Act) regarding offences being cognizable or non-cognizable, can all the offences under the Act may be categorized as cognizable in view of the non-obstante clause specified under Section 19 of POCSO Act?”. The another question is “Whether Section 19 of the POCSO Act have overriding effect to the provisions of Cr.P.C., in particular Chapter 12 titled as ‘Information to the police and their powers to investigate’ in the context of the provision of Section 4 and 5 of Cr.P.C.?”. The last question is “In the case at hand, by virtue of mandate of Section 4(2) of Cr.P.C., in absence of having any provision in

Special Enactment i.e. POCSO Act for investigation, to try an offence under Section 23 of POCSO Act, the mandate of Section 155(2) of Cr.P.C. shall be required to be followed ? ”

To put things in perspective, Justice Maheshwari then envisages in para 68 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. ”

Most remarkably, Justice Maheshwari then clearly points out in para 70 that, “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 on reporting of commission of offence under sub-section (1) of Section 19 of POCSO Act be made by the police. Indeed, looking to the language of Section 19, 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. But POCSO Act does not specify how and in what manner the investigation on reporting of the offences ought to be made. In contrast, Chapter XII of Cr.P.C. deals with investigation also after receiving information in a cognizable or non-cognizable offences. ”

Justice Maheshwari further went to explain in para 70 that “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. ”

While rejecting the case law relied upon by the Counsel for Respondents, Justice Maheshwari then expounds in para 74 that, “Thus, as per the discussion made hereinabove, it is to conclude that the Delhi High Court’s judgment of Santosh Kumar Mandal (supra) deals with an offence of Section 12 wherein maximum sentence prescribed was extendable up to 3 years, however the said offence was found cognizable. It is to state that the observation made in the said judgment that all offences under POCSO Act are cognizable, is in my humble opinion not justified without taking note of the provisions of Cr.P.C.”

Justice Maheshwari further went to explain in para 74 that, “It is clarified, Section 19 of the POCSO Act overrides the provisions of Cr.P.C. only to the extent of reporting the matters to the police or SJPU and other ancillary points so specified in Section 19.”

Needless to say, Justice Maheshwari then plainly puts forth in para 75 that, “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.”

Furthermore, Justice Maheshwari then discloses in para 76 that, “the language of Section 155(2) makes it clear and in terms it is 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.”

While citing the relevant case law, Justice Maheshwari then expounds in para 78 that, “When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case.”

As a corollary, Justice Maheshwari then hastens to add in para 80 that, “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 (supra) relating to a case of non-cognizable offence, is aptly applicable in the facts of the present case. ”

Finally and as a corollary, Justice Maheshwari while continuing in the same vein then in para 81 that, “In view of the above, this appeal is allowed. Order impugned taking cognizance and consequential orders passed by the Trial Court which is affirmed by the High Court are hereby set-aside. The Special Court is at liberty to follow the procedure prescribed in the matter of investigation of non-cognizable offences.”

CONCLUSION

In conclusion, the Division bench of Justice J.K. Maheshwari and Justice Indira Banerjee took opposing views on the above mentioned issue and therefore the matter was reserved to be listed before a larger bench.

Justice Indira Banerjee took the stance that the provision of Section of 155 (2) of Cr.P.C. are not required to be complied with in the case of an offence under section 23 for the reason that if the Legislature had intended that the Cr.P.C. should apply to investigation of an offence under Section 23 of POCSO, it would specifically have provided so. Whereas on the other hand, Justice J.K. Maheshwari gave a dissenting opinion by allowing the Appeal for the reason that 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 and that the language of Section 155(2) makes it clear and in terms it is mandatory that no police officer shall investigate a non-cognizable case without the order of the Magistrate.

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