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INVESTIGATION OF OFFENCES UNDER POCSO ACT, 2012

Gangadhar Narayan Nayak @ Gangadhar Hiregutti v. State of Karnataka, CRIMINAL

APPEAL No. 451 OF 2022

FACTS

✓ Case origin | The Supreme Court was hearing an appeal filed against the decision of
the High Court.
✓ Main Character | The appeal is filed by Editor of a Kannada newspaper.
✓ Offence | The case against the Editor is that he has published the identity of the victim
of the sexual offence.
✓ Plea | The Editor has filed for his discharge before the Magistrate on the ground
that the Police registered FIR against him without following Section 155(2) of
the CrPC.
✓ Fate | Facing rejection from the Court of Magistrate he went to High Court. The High
Court also refused to discharge him.
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ISSUE RAISED

Whether Section 155(2) of Code of Criminal Procedure, 1973 applies to investigation of an

offence under Section 23 of Prevention of Children from Sexual Offences Act, 2012?

LAW APPLICABLE – Without this you cannot understand the decision

✓ What section 155 demands ? Section 155 of the CrPC, 1973 talks about
information as to non-cognizable cases and investigation of such cases. Section
155(2) in particular states that no police officer shall investigate a non-
cognizable case without the order of a Magistrate having power to try such case
or commit the case for trial.
✓ Discharge procedure ! Section 227 of the CrPC, 1973 provides that upon
consideration of the record of the case and after hearing the parties, the Judge
considers that there is no sufficient ground for proceeding against the accused, he
shall discharge the accused and also record his reasons for doing so.
✓ Section 19 of the POCSO Act, 2012 provides for reporting of offences under the Act.
Section 19(5) in particular provides that when Special Juvenile Police Unit or local
police are of the opinion that a child against whom an offence has been committed, is
in need of care and protection, then after recording the reasons in writing, such police
shall make immediate arrangement to give him such care and protection.
✓ Provision violated ! Section 23 of the POCSO Act, 2012 provides for procedure to
be followed by Media for matters related to the Act. Section 23(2) in particular
mandates that no reports in any media shall disclose, the identity of a child
including his name, address, photograph, family details, school, neighbourhood or
any other particulars which may lead to disclosure of identity of the child. The proviso
to Section23(2) states that after reasons to be recorded in writing, the Special
Court, competent to try the case under the Act, may permit such disclosure, if in its
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opinion such disclosure is in the interest of the child. Punishment for violating the
provision is imprisonment between 6 months or 1 year or with fine or both.

DECISION

The 2 Judge Bench of the Court was unable to produce a unanimous verdict and therefore
this case has two separate judgements. The operative order states that 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.
Decision by Justice Indira Banerjee:
(i) 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.
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. 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.
(ii) If the Legislature had intended that the CrPC should apply to investigation of an offence
under Section 23 of POCSO, it would specifically have provided so.
(iii) 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.
Decision by Justice JK Maheshwari
(i) Section 19 of the Act does not specify all the offences under the Act as cognizable.
Additionally, 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.
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(ii) Therefore, 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 CrPC, the procedure prescribed in CrPC ought to be followed in the matter of
investigation enquiring into and trial.
(iii) 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. Therefore, applying Section 5 savings clause of CrPC, in absence of having any
provision in special enactment, the CrPC would apply.
(iv) 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.

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