[POCSO] Can police probe offence of revealing victim's identity sans magistrate's permission? Supreme Court Bench divided

The Supreme Court of India has delivered a split verdict on the question of whether permission from a magistrate is needed by the police to probe the offence of revealing a victim's identity under Section 23 of the Protection of Children from Sexual Offences (POCSO) Act [Gangadhar Narayan Nayak vs State of Karnataka]..The Bench of Justices Indira Banerjee and JK Maheshwari were faced with the following questions:- Whether Section 155(2) of the CrPC applies to the investigation of an offence under Section 23 of POCSO? - Is the Special Court debarred from taking cognizance of an offence under Section 23 of POCSO and obliged to discharge the accused under Section 227 of the CrPC, only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence?.While Justice Banerjee answered the questions in the negative, Justice Maheshwari took a different stance. The matter will now placed before Chief Justice of India NV Ramana for constitution of a larger bench to decide the issue..The Bench was hearing an appeal by the Editor of Kannada newspaper Karavali Munjavu against an order of the Karnataka High Court passed in September 2021. The High Court had dismissed a Section 482 CrPC application, while upholding an order of the lower court taking cognizance of the offence under Section 23 of the POCSO Act against the appellant..In October 2017, the newspaper had published a report on the sexual harassment of a 16-year-old girl. The victim was named in the said report. A First Information Report (FIR) was lodged against the editor after the mother of victim filed a complaint under Section 23 of POCSO. After investigation, the police filed a report under Section 173 of the CrPC before the trial court. Thereafter, the court took cognizance of the offence alleged and directed that summons be issued to the appellant.The appellant then filed an application for discharge under Section 227 of the CrPC on the purported ground that an offence under Section 23 of POCSO being non-cognizable, the police could not have investigated the offence without obtaining an order of the magistrate under Section 155(2) of the CrPC.The trial court dismissed the application, prompting the appellant to approach the High Court under Section 482 CrPC. The High Court dismissed the same, holding that the non-obstante provision of Section 19 of POCSO overrides the provisions of the CrPC, including Section 155 thereof. The High Court thus refused to quash the proceedings initiated against the appellant under Section 23 of POCSO, leading to the appeal before the Supreme Court..Justice Indira Banerjee dismissed the appeal, while noting that had the legislature intended for the CrPC to apply to the investigation of an offence under Section 23 of POCSO, it 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's judgment read. .Further, she stated that in our society, victims of sexual offences are, more often than not, treated as the abettor or perpetrator of the crime, even though they may be absolutely innocent."Instead of empathizing with the victim people start finding fault with the victim. The victim is ridiculed, defamed, gossiped about, and even ostracized," she went on to state..Emphasizing on the importance of maintaining the privacy and dignity of victims of such offences, the judgment stated,"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. The Constitution of India guarantees the aforesaid inalienable and basic rights to all, including children."Justice Banerjee further reiterated that a child against whom an 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.".Allowing the appeal, Justice Maheshwari noted that when a cognizable offence is committed, the officer in-charge of a police station is competent to make an arrest without a magistrate's order. However, in non-cognizable offences, the police has no authority to arrest without a warrant obtained by an order of the court.While it is not clear which offences under the POCSO Act are cognizable or non-cognizable, the court takes the assistance from the provisions of CrPC on the said issue, his judgment stated. In this light, it was noted,"So, the provisions specified in any special enactment along with its procedure shall override the provisions of Cr.P.C. and be followed . In other words, the provisions of Cr.P.C. would not tinker with the provisions of special enactment and they are saved to such extent as specified in Section 5 of Cr.P.C. and would be applicable as per Section 4(2) of the CrPC."Relying on a few judgments, Justice Maheshwari opined,"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. However, as concluded as per sub-section 2 of Section 4 and applying Section 5 savings clause of CrPC, in absence of having any provision in special enactment, the CrPC would apply.".Thus, it was held that Section 155 CrPC is mandatory and is required to be complied with prior to investigating a non-cognizable offence.He further held, "...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, 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.".[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.