Disclosure of victim’s Identity under POCSO is a cognizable offense – Supreme Court comes out with the split verdict

In an appeal filed by the editor of a Kannada Newspaper seeking relief against the Magistrates orders, the Karnataka HC Upheld the decision. The appellant was accused of committing the offense under Section 23 of the POCSO Act by publishing the identity of a 16-year-old girl who was subjected to sexual crime.

A two-member bench of Supreme Court comprising of Justice Indira Banerjee and Justice JK Maheshwari was considering the appeal filed by the editor, observed that the short question of law involved in this appeal is, whether Section 155(2) of the Cr.P.C. applies to the investigation of an offense under Section 23 of POCSO?

The bench came out with a split verdict.

Justice JK Maheswari opined that the Magistrate’s permission was required as per sec 155(2) of CrPC since the offense recorded under sec 23 of POCSO is not cognizable. Justice Indira Banerjee held otherwise.

Now the matter has been referred to CJI to constitute an appropriate bench to resolve the issue.

A senior counsel appearing for the appellant argued the case as

1. The maximum imprisonment under sec 23 of POCSO is one year. As per para II of schedule 1 of CrPC, offenses with imprisonment of fewer than 3 years are classified as non-cognizable offenses. So, the offense under sec 23 of POCSO is non-cognizable.
2. Section 19 of POCSO deals with the process of investigation of POCSO offenses, which does not include sec 23.
3. Sec 23 of POCSO does not exclude the provisions of CrPC, therefore sec 155(2) of CrPC is applicable, it is a mandatory provision.

Justice Indira Banerjee disagrees

In this context, Justice Indira Banerjee disagreed with the arguments and said

1. Sec 19 0f POCSO Act does not exclude offense under sec 23 “The expression “offense” in Section 19 of POCSO would include all offenses under POCSO including offense under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault” (Para 35).
2. As per Section 19(5), the Police Unit shall make immediate arrangements for the care and protection of the victim child if it is if the opinion that the child is in need of care and protection. “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 offense has been committed and whether the child requires special care”, (Para 36)
3. Section 19(6) requires the police to report the matter to the Child Welfare Committee and the Special Court without delay.
4. If the legislature had intended that Section 155(2) CrPC should apply to Section 23, it would have specifically provided so. In this regard, it was noted that Sections 31 and 33(9) of the POCSO specifically incorporates CrPC provisions in Sections 4(1) and 4(2).
5. Justice Banerjee also spoke about the need to protect the dignity and privacy of the child. “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. The right to live with dignity, the right to personal liberty, the right to privacy, the right to equality and/or the right against discrimination, the right against exploitation, are Fundamental Rights guaranteed by Part III of the Constitution of India”.

Justice Maheshwari’s analysis

1. Section 19 does not state that all POCSO offenses are cognizable.
2. Section 19 also does not provide how and in what manner the investigation on reporting of the offenses ought to be made.
3. Thus, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or non-cognizable offenses, as mandated by subsection (2) of Section 4 of Cr.P.C., the procedure prescribed in Cr.P.C. ought to be followed in the matter of investigation enquiring into and trial.
4. Section (5) of Cr.P.C. is a saving clause, by which the procedure prescribed in the special enactment will prevail otherwise in absence of the provision and the procedure specified in Cr.P.C. may be applicable

Justice Maheshwari observed that, on the basis of precedents, the application of Section 155(2) CrPC to section 23 of POCSO is a  mandatory provision. The word “Magistrate” in Section 155(2) CrPC has to be understood as “Special Court” in the context of POCSO. “..

Referred To CJI

Two judges being of the different opinion and a split decision it was stated in the order,“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”,