BENGALURU:
The Supreme Court Monday gave a split verdict on whether permission from a magistrate is required by the police to investigate the offence of revealing a victim’s identity under Section 23 of the Protection of Children from Sexual Offences (POCSO) Act.
A bench of Justices Indira Banerjee and J K Maheshwari delivered separate judgments on the issue.
Since the Bench pronounced different verdicts and has not been able to agree, the Registry was directed to forthwith place the matter before Chief Justice N V Ramana for assigning it to an appropriate Bench.
The top court was hearing an appeal filed by an editor of a newspaper challenging a verdict passed by the Karnataka High Court under Section 482 of the Code of Criminal Procedure upholding an order passed by the Principal District Judge, Uttar Kannada, Karwar who took cognizance against the appellant of offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012.
The question of law involved in this appeal was whether Section 155(2) of the CrPC applies to the investigation of an offence under Section 23 of the POCSO and if the Special Court is 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? The editor had named the victim, a 16-year-old girl, in a sexual harassment case in a news report published in the newspaper.
Justice Banerjee dismissed the appeal and refused to accept the argument that the proceedings were vitiated and liable to be quashed only because of want of prior permission of the jurisdictional magistrate to investigate into the alleged offence. ”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,” Justice Banerjee said.
Justice Banerjee said 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.
Section 23 of the POCSO which protects child victims of sexual abuse from unwarranted intrusion into privacy, harassment and mental agony has to be strictly enforced and it cannot be allowed to be diluted, she said.
Justice Banerjee stated that in society instead of empathising with the victim people start finding fault with the victim. The victim is ridiculed, defamed, gossiped about, and even ostracized.
”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,” she said.
Justice Maheshwari said 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 a non-cognizable offence, the police officer is not supposed to investigate without the order of the court, he said.
”It is clear that in the cases where the commission of cognizable offence is there, the officer in-charge of the police station is competent without the order of Magistrate, but in case of non-cognizable offences, after taking the report, the officer in-charge shall refer the informant to the Magistrate as per section 155(1). ”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,” he said. PTI
