Sakunjay Vyas
Published on: March 22, 2022 12:11 IST
Justice Indira Banerjee, while hearing the appeal against a judgment 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 and upholding an order passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of the offense under Section 23 of the Protection of Children from Sexual Offences Act, 2012. To which Justice J. K. Maheshwari pronounced a separate judgment disagreeing with the view expressed by Hon’ble Ms. Justice Indira Banerjee.
Facts:
As per allegations, the Appellant allegedly committed an offence under Section 23 of the POCSO Act for disclosing the victim’s identity.
The mother of the victim lodged the complaint on 30.10.2017 against the Appellant. The police reported the matter to the Special Court. After that, the investigation was completed, and a challan was filed on 31.12.2017.
The Special Court, in turn, took cognizance on 19.04.2018. The Appellant then moved an application for discharge before the Special Court, which was rejected vide order dated 28.08.2020.
The order taking cognizance and consequential proceedings were assailed by the Appellant in a petition under Section 482 of Cr.P.C. before the High Court seeking quashment inter-alia on the ground that offence under Section 23 of POCSO Act being non-cognizable, investigation conducted by police authorities without the order of the Magistrate as mandated in Section 155(2) of the Cr.P.C and filing the challan, completing investigation vitiates trial, and all the proceedings deserve to be quashed.
The Special Court, while rejecting the application for discharge, observed that in view of Section 19 of POCSO Act, all offences under the Act are cognizable after taking guidance by the judgment of Delhi High Court in the case of Santosh Kumar Mandal vs. State, 2016 SCC OnLine Del 5378.
It was held the police have the power to register the case and investigate without obtaining permission from the Magistrate. The Court also observed that sufficient material is available against the Appellant to frame charge under Section 23 of POCSO Act and directed to frame the charges.
The High Court, by the impugned order, held that Section 19 of the POCSO Act provides for reporting of offence and does not classify cognizable or non-cognizable offence.
It is said sub-section (1) of Section 19 of the POCSO Act starts with the ‘non-obstante’ clause, which overrides the provisions contained under Sections 154 and 155 of Cr.P.C. However, the provisions of Sections 154 and 155 of Cr.P.C. are specifically excluded from application to the provisions of the POCSO Act. Therefore, obtaining the order from the Magistrate under Section 155(2) of Cr.P.C. to investigate a non-cognizable case is not necessary.
Opinion and Judgment given by Justice Indira Banerjee :
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.
That a thorough reading of section 19 of POCSO makes it clear that the expression “offence” in section 19(1) includes offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault.
A child whose identity is disclosed in the media may very well be in need of care and protection. 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.
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.
Further, the Court mentioned article 12 of the Universal Declaration of Human Rights and Article 39(f) of the Directive Principles of State Policy, mentioning that no arbitrary interference be there and that a child must be given opportunities and facilities to develop in a healthy manner.
That the argument made by the appellant counsel 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, this is settled by the expression “offence under this Act” mentioned in Section 19(1) of POCSO makes it 23 clear that Section 19 includes all offences under POCSO including offence under Section 23 of POCSO.
That the Court was 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.
That the Appellant should defend the proceedings against him on merits and that this Court does 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.
The Opinion, Disagreement, and Judgment of Justice J.K. Maheshwari.
That this Court had the benefit of going through the opinion of the esteemed Justice Indira Banerjee; however, this Bench is unable to agree with the view taken in the judgment (from here on mentioned as “Judgment 1”).
The Court initiated its reasoning by mentioning that on commission of the cognizable offence, a police officer may, in accordance with First Schedule of Cr.P.C. or under any other law may, arrest the accused without warrant. While in a non-cognizable offence, a police officer has no authority to arrest without a warrant obtained by an order of the Court.
That the part second of the first schedule has been mentioned in the Judgment 1, taking advantage of it, it can be clearly stated that the offences with imprisonment for less than three years or with fine if prescribed in that law, then commission of such offence under any other laws will be non-cognizable, bailable and triable by any magistrate.
That is the present case of the offence committed under section 23 of POCSO, which is punishable with imprisonment for a period not less than 6 months, but it may extend to 1 year or with fine or with both. And that since there is no clear differentiation of the nature of the offence under POCSO in terms of cognizable and non-cognizable. The Court must take guidance and assistance of the provisions of Cr.P.C.
The Court further stated that 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 the corresponding provision. However, POCSO Act does not specify how and in what manner the investigation on reporting of the offences ought to be made.
That the police officer can conduct investigations according to the provisions of section 156 and 157 of Cr.P.C, and the information gathered may be recorded under section 155(1) of Cr.P.C. and further, since POCSO doesn’t have any provisions regarding the investigation procedures, the saving clause under section 5 of Cr. P.C would not be applicable; hence it is mandatory by sub-section (2) of Section 4 of Cr.P.C. that the procedure prescribed in Cr.P.C. ought to be followed in the matter of investigation enquiring into and trial.
That the order passed by the Trial Court relying upon the judgment of Delhi High Court in the case of Santosh Kumar Mandal (supra), which dealt 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. It is true that to decide the cognizability and non-cognizability, the maximum sentence prescribed for the offence would be taken into consideration. However, if the sentence prescribed for the offence is less than three years, then those offences of the POCSO Act would be non-cognizable.
That as per the above discussion, it is clarified that 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 and 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. And that in the present case, the procedure to be followed should be the one prescribed under Cr. P.C, under sections 154-157.
That the aforementioned discussion makes it clear that the view was taken by High Court upholding the order taking cognizance by Magistrate was not found justified on the ground that the police was not entitled to investigate into the offence and upon such a report of the police officer taking cognizance after completion of investigation by the Magistrate was also not justified, the Court observed that when such a breach is brought to the notice of Court at an early stage of the 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.
That the Special Courts are required to be designated to deal with offenses under POCSO Act, and they have been authorized under Section 33, conferring power to such Special Courts to take cognizance.
Therefore, the word used in Section 155(2) be read as “Special Courts” in place of “Magistrate,” which may take cognizance of any offence under the POCSO Act. Therefore, the procedure provided under Section 155(2) is required to be followed in an offence of the POCSO Act under Section 23, which is non-cognizable, and the Special Court is required to look into the procedure followed in the investigation.
That the Court has not looked into the vital aspect of following the procedure of Section 155(2) of Cr. P.C, therefore when the earliest application for discharge was filed, it was rejected by the High Court, with the incorrect notion of the overriding effect of section 19 of POCSO Act. In the view of this Court, the order passed by the High Court was in accordance with the law.
In view of the above, this appeal is allowed, the orders passed by the Subordinate Court are set aside, and the Special Court is at liberty to follow the procedure prescribed in the matter of investigation of non-cognizable offences.
Conclusion
Due to the contradictory views of the two judges of the Apex Court, the matter has been referred to the CHIEF JUSTICE OF INDIA for assignment before an appropriate Bench.
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