As SC’s division bench is split on the issue, it is now up to the CJI to refer it to the appropriate bench.

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ON Monday, a Supreme Court bench comprising Justices Indira Banerjee and J.K. Maheshwari, in a judgment, expressed differing opinions over whether an offence under Section 23 of the Protection of Children from Sexual Offences [POCSO] Act, 2012 is non-cognizable, and thus, prior permission of the magistrate to the police would be needed to investigate it. Justice Banerjee held that the offence under 23 of the POCSO is a cognizable offence, while Justice Maheshwari treated it as a non-cognizable offence. Both the judges have given their separate reasons for their conclusions.

As per the Code of Criminal Procedure [CrPC], cognizable offences are those offences for which a police officer may arrest a person without a warrant. On other hand, for a non- cognizable offence, a police officer has no authority to arrest without a warrant. 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.

Section 23 of the POCSO Act makes the disclosure of the identity of the child a punishable offence with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both. It applies equally to media reports.

In the present case, Gangadhar Narayan Nayak, also known as Gangadhar Hiregutti, the appellant-accused, is the Editor of Karavali Munjavu Newspaper. The victim’s mother lodged a complaint against him under section 23 of the POCSO Act since a report in the newspaper published the name of her child. After investigation, the police filed a charge-sheet at the Court of the Principal District Judge, Uttar Kannada, Karwar. On April 19, 2018, the Court of the Principal District Judge, Uttar Kannada, Karwar, took cognizance of the offence alleged and directed that summons be issued to Nayak. He sought discharge from the offence on the ground that offence under section 23 being non-cognizable, police could not have investigated the offence without the nod of the Magistrate under Section 155(2) of the CrPC.

The trial court dismissed the same. Thereafter, the accused approached the Karnataka High Court under Section 482 of the CrPC, seeking quashing of the proceedings against him. The high court rejected the petition, holding that the non-obstante provision of Section 19 of the POCSO Act overrides the provisions of the CrPC, including its section 155.

Justices Banerjee and Maheshwari considered these facts and legal issues involved in the matter presented to them by the accused in his appeal against the high court’s decision.

Justice Banerjee’s reasoning 

Justice Banerjee examined and interpreted Sections 23, 19, 31 and 33(9) of the POSCO Act, giving these provisions a literal interpretation, and keeping the child’s dignity and privacy into consideration. Taking note of section 19, Justice Banerjee held that it does not exclude the offence under section 23. Section 19 provides for the reporting of offence. It begins with a non-obstante clause overriding the CrPC. Keeping this into consideration, Justice Benerjee held, “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 the POCSO Act, Justice Banerjee wrote, would include all offences under the POCSO Act, including the offence under section 23 of publication of a news report disclosing the identity of a child victim of sexual assault. She held that the disclosure of the identity of the child in the media may also expose the child victim of a sexual offence to vindictive retaliation by the perpetrators of the crime or their accomplices.

Senior Advocate Devdatt Kamat, representing the appellant, relied upon section 31 of the POCSO Act, which provides that the provisions of the CrPC, including provisions as to bail and bonds, are to apply to the proceedings before a Special Court under the POSCO Act. Rejecting the argument, Justice Banerjee noted that section 31 has nothing to do with reporting or investigation of an offence as contemplated in section 19 of the POCSO Act. She also rejected the reliance sought to be placed by Kamat on section 33(9) of the Act, which confers powers of a Court of Sessions on the Special Court to try offences under the Act. Justice Banerjee offered the same reasoning for the rejection of this argument, that is, this section has nothing to do with reporting or investigation of an offence under POSCO.

“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”, Justice Banerjee held.

Justice Benerjee adverted to similar provisions protecting the identity of the victim of sexual offences, namely Section 228A of the Indian Penal Code, Section 327(2) of the CrPC, and Section 74 of the Juvenile Justice [JJ] Act. She said the object of these laws, including section 23 of the POCSO Act, is to prevent the disclosure of the identity of the victim. The identity of the victim should not be discernible from any matter published in the media.

Referring to Article 16 of the United Nations Convention on the Rights of the Child, Justice Banerjee held the JJ Act and the POCSO Act are in furtherance of the obligations of India under the Convention. Article 16 of this Convention provides that no child shall be subjected to arbitrary or unlawful interference with their privacy. It has been ratified by India. In this view, Justice Banerjee held “The provision of Section 23 of POCSO which protects child victims of sexual abuse from unwarranted intrusion into privacy, harassment and mental agony has to be strictly enforced. The provision cannot be allowed to be diluted”.

She held that the right of a child to dignity not only requires that the child be protected from offence of sexual assault, sexual harassment and pornography, but also requires that the dignity of a child be safeguarded.

“Disclosure of the identity of a child who is a victim of a sexual offence or who is in conflict with the law is in fundamental breach of the right of the child to dignity, the right not to be embarrassed”, she held.

Justice Maheshwari’s reasoning

Justice Maheshwari noted that the POCSO Act does not clarify regarding cognizable and non-cognizable offences. He referred to the CrPC scheme on cognizable and non-cognizable offences. The first schedule of CrPC provides for the classification of offence, which is in two parts. The first part specifies the punishment, cognizability or non-cognizability, bailability or non-bailability; and triability by which court. The second part deals with the offences committed under any other law and specify the description of the offences: cognizability or non-cognizability, bailability or non-bailability; and triability by which court. On a reading of the schedule, Justice Maheshwari opined that it is clear that for offences punishable with a sentence of imprisonment for less than three years or with fine, if prescribed in that law, the commission of such offence under any other law would be non-cognizable, bailable and triable by any magistrate. He thus held that if the sentence prescribed for the offence is less than three years, then those offences of the POCSO Act would be non-cognizable.

On the interpretation of section 19 of the POCSO Act, Justice Maheshwari differed with Justice Banerjee to hold that it does not specify that all the offences under the POCSO Act are cognizable. Besides, he held that section 19 or other provisions of the POCSO Act also do not specify how and in what manner the investigation on reporting of the commission of offence under sub-section (1) of section 19 be done by the police. He thus held that in absence of any procedure for investigation under the POCSO Act, either for cognizable or non-cognizable offences, the procedure prescribed in CrPC ought to be followed in the matter of investigation, enquiring into and trial. He further held that section 19 of the POCSO Act overrides the provisions of CrPC only to the extent of reporting the matters to the police or the Special Juvenile Police Unit and other ancillary points so specified in section 19.

Justice Maheshwari also doubted the correctness of the Delhi High Court’s 2016 judgment in the Santosh Kumar Mandal case, in which it was held all offences under the POCSO Act are cognizable.

Having held that the offence under section 23 of the POCSO Act is non-cognizable, Justice Maheshwari adverted to section 155 of the CrPC to opine that its language makes it clear that 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. Section 155(2) of the CrPC provides for the permission of the Magistrate but under the POSCO Act, it is the Special Court designated which deals with offences under the Act. Justice Maheshwari thus held that “Magistrate” in Section 155(2) be read as “Special Courts” for offences under the POCSO Act, and the special courts may take cognizance of any offence under the POCSO Act.

On the merits of the present case, he chose to set aside the order taking cognizance of the offence as the Special Court failed to take note of the procedure under section 155(2) of the CrPC which mandates prior permission of the court to investigate the offence.

Since the division bench could not arrive at a unanimous conclusion, the matter has been unanimously directed to be placed before the Chief Justice of India for listing it before an appropriate bench.

Click here to view the Supreme Court’s judgment.