In the case of G.N.N. vs State of Karnataka &Ors., the Apex Court of India on 21st March 2022 has delivered a split judgment on the issue of whether Section 155(2) of the Code of Criminal Procedure (CrPC) will apply to the investigation of an offence under Section 23 of the Protection of Children from Sexual Offences Act [POCSO], 2012.
FACTS LEADING TO THE CASE
A complaint was filed under Section 23 (Procedure for media) of the POCSO Act by the mother of the 16-year-old victim girl against the newspaper editor for publishing a report in the newspaper regarding the sexual harassment of the victim. The identity of the victim was revealed in the said report.
Following that, the Appellant/Editor of the newspaper filed an application for discharge under Section 227 (Discharge) of the CrPC, claiming that because an offence under Section 23 of the POCSO is non-cognizable, the police could not investigate it without a Magistrate’s order under Section 155(2) (No police officer shall investigate a non-cognizable case without the order of a Magistrate having the power to try such case or commit the case for trial) of the CrPC. The Appellant’s application was dismissed by the Trial Court, and the Appellant then filed a Criminal Petition in the High Court under Section 482 (Saving inherent power of High Court) of the CrPC. The High Court refused to quash the proceedings initiated against the Appellant under Section 23 of POCSO. Hence, the Appellant filed an appeal in the apex court.
The Counsel for the Appellant submitted that Section 155(2) of the CrPC makes it mandatory for a police officer to investigate a non-cognizable matter with the consent of the Magistrate, otherwise, the proceedings may be annulled. Therefore, the police do not have the jurisdiction to investigate an offence under Section 23 of POCSO without the prior sanction of the jurisdictional magistrate. Therefore, the investigation held by the police against the accused under Section 23 was illegal and should be vitiated.
The Counsel for the State submitted that the POCSO being a special enactment overrides the general procedural law and the police have a duty under Section 19(1) and 19(2)(c) of POCSO to record the information given by any person having knowledge that a crime under POCSO is likely to be committed or has been committed. It was further submitted that an order of the Court taking cognizance and framing charges was not vitiated by any defect investigation. Section 19 of POCSO applies to any offence under POCSO including offence under Section 23 of POCSO.
The 2- Judge Bench comprising of J. Indira Banerjee and J. Maheshwari gave a split judgment with regard to the said Appeal.
J. INDIRA BANERJEE
J. Indira Banerjee referred to various International Conventions like UDHR, CRC and even Article 21 and Article 39(f) to guarantee a life of dignity and privacy to children.
She stated that
“Disclosure of the identity of a child who is a victim of sexual offences 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 also remarked that Section 19(1) of POCSO Act covers also the offences under Section 23 of the said Act. J.Banerjee asked the courts to interpret the legislation’s intent in literal sense and give them a plain meaning. The CrPC 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 CrPC, have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO.
- It was further observed that by disclosing the identity of the child an offence has been committed and she must be rehabilitated with extra protection, attention, and perhaps shelter. A deep investigation should be made pursuant to subsections (5) and (6) of Section 19 (Reporting of offences) of the POCSO Act, 2012.
- She opined that there was no infirmity in the decision given by the High Court and thus dismissed the Appeal stating that
“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.”
J.Maheswari did not succumb to the opinion of the Hon’ble J. Indira Banerjee and rather raised some interesting questions:
- Can all the offences under the POCSO Act, be cognizable?
- Whether Section 19 has an overriding effect to the provisions of CrPC
- Will the mandate of Section 155(2) CrPC be followed?
His Order observed that as the offence being non-cognizable, the police are entitled to investigate such offence pursuant to an order of competent Magistrate specified under Section 155(2) of Cr.P.C. But admittedly, no such order was passed in the case, therefore, this Court said that the recourse as taken is not justified and quashed the impugned proceedings.
As per Section 155(2), for non-cognizable offence, the order is required to be taken from the Magistrate but in the light of Sections 2(l) and 28 of POCSO Act, the Special Courts are required to be designated to deal with offences under POCSO Act and they have been authorized under Section 33, conferring a power to such Special Courts to take cognizance.
Therefore, Maheshwari, J was of the opinion that the word used in Section 155(2) be read as “Special Courts” in place of “Magistrate”, which may take cognizance of any offence under POCSO Act.
Hence, Justice Maheswari allowed the Appeal.
As there was a split opinion of the Bench, the Court asked the Registry to lay the matter before the Chief Justice of India for assigning it before an appropriate larger Bench.
Vaishali Jain, Advocate & Associate – POSH at Work & Hamda Arfeen