Subsequently, the victim’s mother lodged a complaint, inter alia, against the editor of the said newspaper (Appellant) under Section 23 of POCSO, pursuant to which a criminal case was started against the Appellant. Court of the Principal District Judge, on the basis of Police Report, filed under Section 173 of Cr.P.C., took cognizance of the offence alleged and directed that summons be issued to the appellant.
Thereafter, the Appellant filed an application for discharge under Section 227 of the Cr.P.C. 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 Cr.P.C. The Trial Court dismissed the application of the Appellant, whereupon the Appellant filed a Criminal Petition in the High Court under Section 482 of the Cr.P.C. The High Court has dismissed the Criminal Petition, holding that the non-obstante provision of Section 19 of POCSO overrides the provisions of the Cr.P.C., including Section 155 thereof.
In the instant case both the Hon’ble judges have delivered separate and contradictory judgments therefore the matter shall now be placed before Hon’ble the CJI, for assignment before a larger bench, but the opinions expressed by both the hon’ble judges are of some great judicial importance and hence analysed below:-
Questions Framed by Justice Indira Banerjee for Consideration
Whether Section 155(2) of the Cr.P.C. 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 Cr.P.C., only because of want of permission of the jurisdictional Magistrate to the police, to investigate into the offence?
Judgment delivered by Justice Indira Banerjee
Question No. 1
Justice Banerjee while considering the relevant provisions from Cr.P.C. has observed that, on a combined reading of Sections 4(1) and (2) with Section 5 of the Cr.P.C., all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the Cr.P.C. and all offences under any other law are to be investigated, inquired into, tried or otherwise dealt with, according to the same provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences.
It was further observed that “the language and tenor of Section 19 of POCSO and subsections thereof make it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO. This is patently clear from the language and tenor of Section 19(1), which reads “…. any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed……”. The expression “offence” in Section 19 of POCSO would include all offences under POCSO including offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault.”
Section 19 of the POCSO Act provides provisions for reporting of offences which starts with a non-obstante clause having an overriding effect over any general law including Cr.P.C. in the event of any contradiction.
Justice Banerjee has further observed that 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 offence has been committed and whether the child requires special care.
While discussing the legislative intent, justice Banerjee has observed that had Legislature intended that the Cr.P.C. should apply to the investigation of an offence under Section 23 of POCSO, 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.
Question No. 2
While concluding the judgment, justice Banerjee has held that proceedings were not vitiated and liable to be quashed or the Appellant was not liable to be discharged without trial, only because of want of prior permission of the jurisdictional Magistrate to investigate into the alleged offence. The Appellant would have to defend the proceedings initiated against him under Section 23 of the POCSO on merits.
Questions Framed by Justice JK Maheshwari for Consideration
In absence of any classification provided in the 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 the POCSO Act?
Whether Section 19 of the POCSO Act have an overriding effect on the provisions of Cr.P.C., in particular, Chapter 12 in the context of the provisions of Sections 4 and 5 of Cr.P.C.?
In the case at hand, by virtue of the 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?
Judgment delivered by Justice JK Maheshwari
Question Nos. 1 and 2
Justice Maheshwari while considering the relevant provisions from Cr.P.C. and POCSO Act has observed that Part 2 of Schedule 1 to Cr.P.C. makes it clear that offences punishable with imprisonment of a term less than 3 years or with fine only if prescribed in law other than IPC, then the commission of such offence under such laws will be non-cognizable and bailable. In the present case, an offence under Section 23 of the POCSO Act has been allegedly committed, which is punishable with imprisonment for a period not less than 6 months which may extend up to 1 year of fine or with both.
Further, it was observed and held that “looking to the language of Section 19, it does not specify all the offences under the POCSO Act are cognizable. Simultaneously either Section 19 or other provisions of the POCSO Act also do not specify how and in what manner the investigation on reporting of commission of an offence under subsection (1) of Section 19 of POCSO Act be made by the police. Indeed, looking to the language of Section 19, it is true that the provisions of the POCSO Act override the provisions of Cr.P.C. being special enactment only to the extent of having the corresponding provisions. But POCSO Act does not specify how and in what manner the investigation on reporting of the offences ought to be made. In contrast, Chapter XII of Cr.P.C. deals with the investigation also after receiving information in a cognizable or non-cognizable offence. Thus, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or non-cognizable offences, 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. 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.”
Further, Justice Maheshwari has held that “as per above discussion, 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 Cr.P.C., in absence of having any provision in special enactment, the Cr.P.C. would apply.”
Justice Maheshwari referred to two important judgments delivered by the Hon’ble Supreme Court in the matters of Rajiv Chaudhary vs. State (NCT) of Delhi, AIR 2001 SC 2369 and Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67, wherein, it was held that, for determination of nature of offence whether it is cognizable or non-cognizable, the maximum punishment that may be awarded for a particular offence, is relevant and not the minimum sentence.
Question No. 3
It was further observed and held by the Justice Maheshwari that, “therefore, it is clear that in the cases where the commission of the 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.”
Justice Maheshwari immediately before concluding his judgment has referred to one judgment delivered by Hon’ble Supreme Court in the matter of Keshav Lal Thakur vs. State of Bihar, (1996) 11 SCC 557, wherein, it was held that “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 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…”
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