Supreme Court Addresses Procedure for Investigating POCSO Act Violations in Media: Gangadhar Narayan Nayak vs. State of Karnataka (2022)

Introduction

Date of the Judgment: March 21, 2022

Citation: 2022 INSC 219

Judges: Indira Banerjee, J. and J.K. Maheshwari, J. (Divergent Opinion)

Can a police investigation into a media report disclosing the identity of a child victim of sexual assault proceed without the prior permission of a Magistrate? The Supreme Court of India grappled with this question in a recent case concerning the interpretation of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and its interplay with the Code of Criminal Procedure (Cr.P.C.). The core issue revolves around whether the procedural safeguards of Section 155(2) of the Cr.P.C., requiring prior magisterial permission for investigating non-cognizable offenses, apply to offenses under Section 23 of the POCSO Act, which penalizes the disclosure of a child victim’s identity.

The Supreme Court bench comprised Justice Indira Banerjee and Justice J.K. Maheshwari. While Justice Banerjee dismissed the appeal, Justice Maheshwari allowed it, leading to a split verdict and the matter being referred to a larger bench.

Case Background

The case originated from a news report published on or about October 27, 2017, in the Karavali Munjavu Newspaper, where the Appellant, Gangadhar Narayan Nayak, was the editor. The report concerned the sexual harassment of a 16-year-old girl and, crucially, named the victim. This disclosure led to the victim’s mother filing a complaint on or about October 30, 2017, with the Siddapur Police Station, alleging a violation of Section 23 of the POCSO Act. The police subsequently registered a case against the Appellant.

Following an investigation, the police filed a report under Section 173 of the Cr.P.C. in the Court of the Principal District Judge, Uttar Kannada, Karwar, on December 31, 2017. The court took cognizance of the offense on April 19, 2018, and issued summons to the Appellant. The Appellant then filed an application for discharge under Section 227 of the Cr.P.C., arguing that the investigation was invalid as the police had not obtained prior permission from a Magistrate, as required under Section 155(2) of the Cr.P.C. for non-cognizable offenses. This application was dismissed, leading to the Appellant’s challenge in the High Court, which was also dismissed.

Timeline

Course of Proceedings

The Principal District Judge, Uttar Kannada, Karwar, initially took cognizance of the offense under Section 23 of the POCSO Act based on the police report. The Appellant then filed an application for discharge, arguing that the police investigation was invalid because the offense under Section 23 of POCSO is non-cognizable, and the police had not obtained prior permission from the jurisdictional Magistrate as required under Section 155(2) of the Cr.P.C. The Trial Court dismissed this application, holding that Section 19 of the POCSO Act overrides the provisions of the Cr.P.C., including Section 155. This led to the Appellant filing a Criminal Petition in the High Court under Section 482 of the Cr.P.C., which was also dismissed. The High Court upheld the Trial Court’s view that the non-obstante clause in Section 19 of POCSO overrides the Cr.P.C., including Section 155.

Legal Framework

The core legal provisions at play in this case are:

• Section 23 of the POCSO Act, 2012: This section prohibits the media from disclosing the identity of a child victim of sexual offenses. It states:

  “23. Procedure for media .—(1) No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy. (2) 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: Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child. (3) The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee. (4) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both.”

• Section 155 of the Cr.P.C.: This section deals with the procedure for investigating non-cognizable offenses. Sub-section (2) states:

  “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.”

• Section 4 of the Cr.P.C.: This section outlines the procedure for the trial of offenses under the Indian Penal Code and other laws. Sub-section (2) states:

  “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 5 of the Cr.P.C.: This section is a saving clause for special laws. It states:

  “Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

• Section 19 of the POCSO Act: This section deals with the reporting of offenses under the POCSO Act. Sub-section (1) begins with a non-obstante clause:

  “Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,–(a) the Special Juvenile Police Unit; or (b) the local police.”

• Section 31 of the POCSO Act: This section states the applicability of the Cr.P.C. to proceedings before a Special Court.

  “Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.”

• Section 33(9) of the POCSO Act: This section specifies the procedure and powers of the Special Court.

  “Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session.”

Arguments

Appellant’s Arguments:

• The Appellant argued that the provisions of the Cr.P.C. apply to all offenses unless a special law provides a different procedure.
• He emphasized that Section 4(2) of the Cr.P.C. mandates that offenses under other laws are to be investigated as per the Cr.P.C., unless a special enactment specifies otherwise.
• The Appellant contended that an offense under Section 23 of the POCSO Act is non-cognizable and bailable, as it is punishable with imprisonment up to one year.
• He argued that Section 155(2) of the Cr.P.C. makes it mandatory for the police to obtain a Magistrate’s order before investigating a non-cognizable offense.
• The Appellant submitted that unlike Section 19 of the POCSO Act, Section 23 does not exclude the application of the Cr.P.C.
• He cited Sections 31 and 33(9) of the POCSO Act, which make the Cr.P.C. applicable to proceedings before a Special Court.
• The Appellant relied on Keshav Lal Thakur v. State of Bihar [(1996) 11 SCC 557], where the Supreme Court quashed proceedings due to a lack of prior permission from a Magistrate for investigating a non-cognizable offense.
• He also cited State of Punjab v. Davinder Pal Singh Bhullar and Others [(2011) 14 SCC 770], arguing that an illegal initial action vitiates all subsequent proceedings.

State of Karnataka’s Arguments:

• The State argued that the POCSO Act is a special enactment aimed at protecting children from sexual offenses.
• It asserted that Section 19 of the POCSO Act, with its non-obstante clause, overrides Sections 154 and 155 of the Cr.P.C.
• The State contended that Section 19 of the POCSO Act mandates the police to record information about offenses under the Act, without excluding Section 23.
• It argued that the case had proceeded beyond the investigation stage, and the court had already taken cognizance.
• The State submitted that any defect in the investigation does not vitiate the order of cognizance unless it causes a miscarriage of justice.
• The State relied on Fertico Marketing and Investment Private Limited and Others v. Central Bureau of Investigation and Another [(2021) 2 SCC 525], where the Supreme Court held that an illegality in investigation does not affect the competence of the court for trial unless it causes miscarriage of justice.
• The State argued that Sections 462 and 465 of the Cr.P.C. protect the trial from any defect in investigation.
• It distinguished the case of Keshav Lal Thakur, arguing that it does not deal with the earlier judgment of this Court in H. N. Rishbud and Others v. State of Delhi [(1955) 1 SCR 1150].
• The State also argued that the judgment in Davinder Pal Singh Bhullar has no application in the facts of the present case.

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. Whether Section 155(2) of the Cr.P.C. applies to the investigation of an offense under Section 23 of POCSO?
2. Whether the Special Court is debarred from taking cognizance of an offense under Section 23 of POCSO and obliged to discharge the accused under Section 227 of the Cr.P.C., only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offense?
3. In the absence of any classification provided in the Protection of Children from Sexual Offences Act, 2021 (in short POCSO Act) regarding offences being cognizable or non-cognizable, can all the offences under the Act may be categorized as cognizable in view of the non-obstante clause specified under Section 19 of POCSO Act?
4. Whether Section 19 of the POCSO Act have overriding effect to the provisions of Cr.P.C., in particular Chapter 12 titled as ‘Information to the police and their powers to investigate’ in the context of the provision of Section 4 and 5 of Cr.P.C.?
5. In the case at hand, by virtue of mandate of Section 4(2) of Cr.P.C., in absence of having any provision in Special Enactment i.e. POCSO Act for investigation, to try an offence under Section 23 of POCSO Act, the mandate of Section 155(2) of Cr.P.C. shall be required to be followed?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Court considered the following authorities:

The Court also considered the following legal provisions:

• Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act): Procedure for media.
• Section 155 of the Code of Criminal Procedure (Cr.P.C.): Information as to non-cognizable cases and investigation of such cases.
• Section 4 of the Cr.P.C.: Trial of offences under the Indian Penal Code and other laws.
• Section 5 of the Cr.P.C.: Saving clause for special laws.
• Section 19 of the POCSO Act: Reporting of offences.
• Section 31 of the POCSO Act: Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court.
• Section 33(9) of the POCSO Act: Procedure and powers of Special Court.

Judgment

How each authority was viewed by the Court?

• Keshav Lal Thakur v. State of Bihar [(1996) 11 SCC 557]*: Justice Banerjee distinguished this case, while Justice Maheshwari relied on it to hold that the investigation was invalid.
• State of Punjab v. Davinder Pal Singh Bhullar and Others [(2011) 14 SCC 770]*: Justice Banerjee held that this case was not applicable to the facts of the case, while Justice Maheshwari relied on it to argue that an illegal initial action vitiates all subsequent actions.
• Fertico Marketing and Investment Private Limited and Others v. Central Bureau of Investigation and Another [(2021) 2 SCC 525]*: Justice Banerjee relied on this case to hold that an illegality in investigation does not affect the competence of the court for trial unless it causes miscarriage of justice. Justice Maheshwari distinguished this case, stating that it applies to cognizable offenses, not non-cognizable ones.
• H. N. Rishbud and Others v. State of Delhi [(1955) 1 SCR 1150]*: Justice Banerjee did not explicitly refer to this case, while Justice Maheshwari referred to this case to state that the court has to consider the nature and extent of the violation and pass appropriate order for re-investigation as may be called for.
• Santosh Kumar Mandal vs. State, 2016 SCC OnLine Del 5378*: Justice Banerjee implicitly approved the view taken by Delhi High Court, while Justice Maheshwari disagreed with the view that all offenses under the POCSO Act are cognizable.
• Nathu Ram & Ors. vs. State of Rajasthan & Anr., 2021(1) RLW 211*: Justice Maheshwari relied on this case to determine the nature of an offense (cognizable or non-cognizable) based on the maximum punishment prescribed.
• Rajiv Chaudhary vs. State (NCT) of Delhi, AIR 2001 SC 2369*: Justice Maheshwari relied on this case to determine the nature of an offense (cognizable or non-cognizable) based on the maximum punishment prescribed.
• Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67*: Justice Maheshwari relied on this case to determine the nature of an offense (cognizable or non-cognizable) based on the maximum punishment prescribed.

What weighed in the mind of the Court?

Justice Banerjee’s reasoning focused on the special nature of the POCSO Act and the need to protect child victims. She emphasized that Section 19 of the POCSO Act, with its non-obstante clause, was intended to expedite the reporting and investigation of offenses under the Act, including Section 23. She also highlighted the importance of preventing the disclosure of a child victim’s identity, citing international conventions and the Constitution of India. Justice Banerjee’s opinion was driven by the need to ensure that the POCSO Act’s objectives were not diluted by procedural technicalities. She also emphasized that the victim should not be treated as the abettor of the crime.

Justice Maheshwari, on the other hand, focused on the procedural aspects of the Cr.P.C. He emphasized that Section 155(2) of the Cr.P.C. is mandatory for investigating non-cognizable offenses and that the POCSO Act does not provide a specific procedure for investigating such offenses. He was of the view that the non-obstante clause in Section 19 of the POCSO Act only overrides the Cr.P.C. to the extent of reporting the matter, and not the investigation. JusticeMaheshwari’s reasoning was grounded in the principle that procedural safeguards cannot be disregarded, especially when they protect the rights of the accused. He also emphasized that the nature of the offense (cognizable or non-cognizable) must be determined based on the punishment prescribed, and not all offenses under the POCSO Act can be presumed to be cognizable.

Ratio of Fact to Law:

The case is a mix of factual and legal elements. The facts of the case are straightforward: a news report disclosed the identity of a child victim, leading to a complaint under Section 23 of the POCSO Act. However, the core of the judgment is a legal analysis of the interplay between the POCSO Act and the Cr.P.C., particularly concerning the applicability of Section 155(2) of the Cr.P.C. The legal issues are complex, involving the interpretation of non-obstante clauses, the nature of cognizable and non-cognizable offenses, and the extent to which special laws override general procedural laws. The ratio of fact to law is approximately 30:70, with the legal analysis forming the bulk of the judgment. The factual context provides the basis for the legal questions, but the judgment primarily focuses on interpreting and applying the relevant legal provisions.

Final Decision and Implications

The Supreme Court delivered a split verdict in this case. Justice Indira Banerjee dismissed the appeal, holding that the investigation was valid and the Special Court could take cognizance of the offense under Section 23 of the POCSO Act without prior permission from a Magistrate. Justice J.K. Maheshwari, on the other hand, allowed the appeal, holding that the investigation was invalid due to the lack of prior permission from a Magistrate, as required under Section 155(2) of the Cr.P.C. Due to the divergent opinions, the matter was referred to a larger bench for final determination.

Implications:

• Uncertainty in Procedure: The split verdict has created uncertainty regarding the procedure for investigating offenses under Section 23 of the POCSO Act. Until the larger bench decides the matter, there will be ambiguity on whether prior permission from a Magistrate is required for such investigations.
• Impact on Media: The case has significant implications for the media. If the larger bench upholds Justice Maheshwari’s view, it would mean that the police must obtain prior permission from a Magistrate before investigating any media report disclosing the identity of a child victim. This could potentially delay investigations and affect the media’s ability to report on such cases.
• Child Protection: The case underscores the importance of protecting child victims of sexual offenses. The POCSO Act aims to ensure that the identity of child victims is not disclosed, and this case highlights the need for clear and effective procedures to enforce this provision.
• Interpretation of Special Laws: The case also raises broader questions about the interpretation of special laws and their interplay with general procedural laws. The Supreme Court’s decision will have implications for how other special laws are interpreted and applied in the context of criminal procedure.
• Need for Clarity: The case highlights the need for greater clarity in the POCSO Act regarding the procedure for investigating offenses under Section 23. The lack of explicit provisions has led to conflicting interpretations and the current split verdict.

Flowchart of Investigation Procedure

The following flowchart summarizes the investigation procedure as per the divergent opinions: