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JUDGMENT
Indira Banerjee, J.
Leave granted.
dated 19th April 2018 passed by the Principal District Judge, Uttar
16 year old girl. The victim was named in the said report.
the Cr.P.C. in the Court of the Principal District Judge, Uttar Kannada,
the Court of the Principal District Judge, Uttar Kannada, Karwar, took
the Magistrate under Section 155(2) of the Cr.P.C. The Trial Court
filed a Criminal Petition in the High Court under Section 482 of the
Cr.P.C.
2021, the High Court has dismissed the Criminal Petition, holding that
provisions of the Cr.P.C., including Section 155 thereof. The High Court
all offences punishable by any law for the time being in force, except
Section 2(n) of the Cr.P.C., which defines ‘offence’ to mean any act or
omission made punishable by any law for the time being in force.
“4. Trial of offences under the Indian Penal Code and other laws.—(1)
All offences under the Indian Penal Code (45 of 1860) shall be
investigated, inquired into, tried, and otherwise dealt with according to
the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired
into, tried, and otherwise dealt with according to the same provisions,
but subject to any enactment for the time being in force regulating the
manner or place of investigating, inquiring into, trying or otherwise
dealing with such offences.”
Section 2(l) read with Part II of the First Schedule of the Cr.P.C.,
jurisdictional Magistrate.
15. Mr. Kamat took this Court through Section 155 of the Cr.P.C., set
out hereinbelow:
(3) Any police officer receiving such order may exercise the same
powers in respect of the investigation (except the power to arrest
without warrant) as an officer in charge of a police station may
exercise in a cognizable case.
Magistrate having power to try such case, or commit the case for
17. Mr. Kamat argued that, from the language and tenor of POCSO
read with the Cr.P.C., it is patently clear that Legislature has intended
18. Mr. Kamat submitted that Section 31 read with Section 33(9) of
19. Mr. Kamat emphatically argued that the finding of the High
Court that the provisions of the Cr.P.C. were excluded for the purpose
of POCSO.
specifically excluded. This provision has not been noticed by the High
Court.
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Cr.P.C. This Provision has also not been noticed by the High Court.
cited Keshav Lal Thakur v. State of Bihar1 where this Court held:
“3. …On the own showing of the police, the offence under Section
31 of the Act is non-cognizable and therefore the police could not
have registered a case for such an offence under Section 154 CrPC.
Of course, the police is entitled to investigate into a non-cognizable
offence pursuant to an order of a competent Magistrate under
Section 155(2) CrPC but, admittedly, no such order was passed in
the instant case. That necessarily means, that neither the police
could investigate into the offence in question nor submit a report on
which the question of taking cognizance could have arisen…”
21. Mr. Kamat argued that in Keshav Lal Thakur (supra) the facts
case where the chargesheet had been filed without any order of the
cognizance had also been taken. This Court categorically held that
22. Mr. Kamat also cited State of Punjab v. Davinder Pal Singh
24. Mr. Padhi, appearing for the State of Karnataka, submitted that
25. Mr. Padhi next argued that POCSO being a special enactment, it
clearly shows that Sections 154 and 155 of the Cr.P.C. have no
Section 23 of POCSO.
26. Mr. Padhi further submitted that the case had gone beyond the
stage of investigation and chargesheet had been filed. The Court had
taken cognizance. Mr. Padhi argued that even assuming, for the sake
investigation, that in itself does not vitiate the order of the Court
demonstrate grave prejudice, which the Appellant has not been able
to do.
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“22. …
“9. … If, therefore, cognizance is in fact taken, on a police report
vitiated by the breach of a mandatory provision relating to
investigation, there can be no doubt that the result of the trial
which follows it cannot be set aside unless the illegality in the
investigation can be shown to have brought about a miscarriage
of justice. That an illegality committed in the course of
investigation does not affect the competence and the jurisdiction
of the Court for trial is well settled as appears from the cases
in Parbhu v. King Emperor [Parbhu v. King Emperor, 1944 SCC
OnLine PC 1 : (1943-44) 71 IA 75 : AIR 1944 PC 73]
and Lumbhardar Zutshi v. R. [Lumbhardar Zutshi v. R., 1949 SCC
OnLine PC 64 : (1949-50) 77 IA 62 : AIR 1950 PC 26]
It could thus be seen that this Court has held that the cognizance
and the trial cannot be set aside unless the illegality in the
investigation can be shown to have brought about miscarriage of
justice. It has been held that the illegality may have a bearing on
the question of prejudice or miscarriage of justice but the invalidity
of the investigation has no relation to the competence of the court.”
28. Mr. Padhi submitted that it is settled law that an order taking
Keshav Lal Thakur (supra) cited by Mr. Kamat, Mr. Padhi argued
that the same does not deal with the earlier judgment of this Court in
3 (2021) 2 SCC 525
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29. In his reply, Mr. Kamat argued that this is not a case of
the FIR.
30. Mr. Kamat also argued that Sections 462 and 465 of the Cr.P.C.,
cited by Mr. Padhi are not attracted in this case. Section 462 relates
occasioned.
31. Unlike Section 4(1) of the Cr.P.C., which requires all offences
under the Indian Penal Code, 1860 (hereinafter referred to as the “the
to any enactment for the time being in force, regulating the manner
with offences.
affect any special law for the time being in force, or any special
prescribed by any other law for the time being in force. POCSO is a
of the Cr.P.C., all offences under the IPC are to be investigated into,
Cr.P.C. and all offences under any other law are to be investigated,
provisions of the Cr.P.C., subject to any enactment for the time being
(3) Where the report under sub-section (1) is given by a child, the
same shall be recorded under subsection (2) in a simple language so
that the child understands contents being recorded.
(5) 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, then, it shall, after recording the reasons in
writing, make immediate arrangement to give him such care and
protection( including admitting the child into shelter home or to the
nearest hospital) within twenty-four hours of the report, as may be
prescribed.
(6) The Special Juvenile Police Unit or local police shall, without
unnecessary delay but within a period of twenty-four hours, report the
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matter to the Child Welfare Committee and the Special Court or where
no Special Court has been designated, to the Court of Session,
including need of the child for care and protection and steps taken in
this regard.
(7) No person shall incur any liability, whether civil or criminal, for
giving the information in good faith for the purpose of sub-section (1).”
sections thereof makes it absolutely clear that the said Section does
from the language and tenor of Section 19(1), which reads “…. any
person who has apprehension that an offence under this Act is likely
where the Special Juvenile Police Unit or local police is satisfied that
Juvenile Police Unit or local police, as the case may be, to report
child for care and protection and steps taken in this regard. A child,
media may also expose the child victim of sexual offence to vindictive
are to apply to the proceedings before a Special Court, and for the
investigation.
the words used in the statute, as per their plain meaning. Had
40. In our society, victims of sexual offence are, more often than
empathizing with the victim people start finding fault with the victim.
ostracized.
either description for a term which may extend to two years and also
liable to fine.
42. Sub-section (2) of Section 327 of the Cr.P.C. requires that the
Board or Committee, as the case may be, holding the inquiry may
44. The entire object of provisions such as Section 228A of the IPC,
the victim should not be discernible from any matter published in the
media.
45. The Charter of the United Nations reaffirms the faith of the
dignity and worth of the human person and in the equal rights of men
and women.
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beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one
49. Every child has the inalienable human right to live with dignity,
right to live with dignity, the right to personal liberty, the right to
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in conditions of freedom and dignity and that childhood and youth are
only protects children from sexual offences but also protects the
right of a child to dignity not only requires that the child be protected
with his or her privacy. The child has the right to the protection of the
the Rights of the Child. The J.J. Act and POCSO are in furtherance of
be diluted.
of People Act, 1950. The Representation of People Act, 1950 does not
or inquiry into any crime, or otherwise dealing with any offence under
56. There can be no dispute with the proposition of law laid down in
by Mr. Kamat. In this case for the reasons discussed above, it cannot
such illegality that strikes at the root of the said order. The legal
Section 19 of POCSO.
59. For the reasons discussed above, I do not find any infirmity with
the impugned judgment and order of the High Court which calls for
.………………………………….J.
[ INDIRA BANERJEE ]
NEW DELHI;
MARCH 21, 2022
REPORTABLE
JUDGMENT
J.K. Maheshwari, J.
reasons to follow.
2. Leave granted.
be required to be followed ?”
ready reference –
5
clear all the offences under the said Act are cognizable or
law for the time being in force shall remain unaffected from
cases. It says that ‘when any person including the child has
reporting the offence under the Act, every such report shall
report has been lodged by the child and not by the family
POCSO Act does not specify how and in what manner the
suffice to say that the Delhi High Court dealt with a case in
that all the offences under the POCSO Act are cognizable,
14. The High Court, considering all the provisions and also
“21. … …. … … … …
Section 19.
after taking the report, the officer in-charge shall refer the
proceedings.
Court has taken cognizance. The Court has not looked into
present case.
…………………………………..J.
(J.K. MAHESHWARI)
NEW DELHI;
MARCH 21, 2022.
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VERSUS
O R D E R
judgment.
Since the Bench has not been able to agree, the Registry
Bench.
………………………………………………………,J.
(Indira Banerjee)
………………………………………………………,J.
(J.K. Maheshwari)
New Delhi;
March 21, 2022.