Whether prior permission of magistrate is mandatory for investigating the non-cognizable offence under POCSO act?
Shubham Budhiraja
(LLB, ACS, BCOM(H))
The Editor of a
newspaper published the news and disclosed the identity of the child victim.
The mother of victim filed a criminal complaint under section 23 of POCSO act
against the editor. The police investigated and submitted the report to the
special court who took cognizance of the same. The editor filed petition under
482 CRPC for quashing the complaint on basis that because section 23 POCSO is a
non-cognizable offence and therefore investigation and consequently final
report, without prior permission of magistrate under section 155(2) CRPC, is
bad in law. The High Court refused to quash on basis that POCSO act prevail
over CRPC. The apex court referred the matter of CJI because both judges had
conflict of judgments wherein one has allowed the appeal and other has refused
the appeal[1].
Affirmative view: POCSO > CRPC and legislative aim is to protect the
identity of the child victim. CRPC Investigation provision does not expressly
provide its application to Section 23 POCSO.
(I)
Unlike Section 4(1) of the Cr.P.C., which
requires all offences under the Indian Penal Code, 1860 (hereinafter referred
to as the “the IPC”) to be investigated, inquired into, tried or otherwise
dealt with according to the Cr.P.C., Section 4(2) of the Cr.P.C. requires all
offences under any other law to be investigated, inquired into, tried or
otherwise dealt with according to the provisions of the Cr.P.C., subject to any
enactment for the time being in force, regulating the manner and place of
investigating, inquiring into, trying or otherwise dealing with offences.
(II)
Section 5 of the Cr.P.C. categorically states
that nothing in the Cr.P.C. shall, in the absence of a specific provision to
the contrary, affect any special 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. POCSO is a special law
for protection of children against sexual abuse.
(III)
The language and tenor of Section 19 of POCSO
and subsections thereof makes 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.
(IV)
Legislative intent is to be construed from the
words used in the statute, as per their plain meaning. Had Legislature intended
that the Cr.P.C. should apply to 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.
(V)
In our society, victims of sexual offence are,
more often than not, treated as the abettor, if not perpetrator of the crime,
even though the victim 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.
(VI)
The entire object of provisions such as Section
228A of the IPC, 327(2) of the Cr.P.C., Section 74 of the JJ Act and Section 23
of POCSO is to prevent disclosure of the identity of the victim. The identity
of the victim should not be discernible from any matter published in the media.
(VII)
The Charter of the United Nations reaffirms the
faith of the peoples of the United Nations in fundamental human rights, in the
dignity and worth of the human person and in the equal rights of men and women.
Dissent view: POCSO > CRPC but Investigation provisions of
CRPC applies to POCSO and therefore for non-cognizable offence, prior
permission of magistrate under section 155(2) is mandatory
(I)
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 offence under sub-section (1) of Section 19 of POCSO
Act be made by the police. Indeed, looking to the language of 10 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 corresponding provision.
But POCSO Act does not specify how and in what manner the investigation on reporting
of the offences ought to be made.
(II)
In contrast, Chapter XII of Cr.P.C. deals with
investigation also after receiving information in a cognizable or
non-cognizable offences. The power of investigation has been given to the
police officer as per Section 156 and the said officer shall make the
investigation following the procedure as prescribed under Section 157 in case
of cognizable offences. In noncognizable offences, the information may be
recorded under Section 155(1) of Cr.P.C. by an officer in-charge of a police
station within whose limit the offence is committed. He shall enter the
substance of information in a book to be kept by such officer in such form as
State Government may prescribe in this behalf, and shall refer the informant to
the Magistrate having power to try such case.
(III)
The said Magistrate may pass an order for
investigation which shall be abided by the police officer and shall exercise
the same power except the power of
arrest without warrant, as he may exercise in investigation of cognizable
offences. Otherwise, in a non-cognizable offence, the police officer is not
supposed to investigate without the order of Court. Thus, in absence of having
any procedure for investigation under the POCSO Act, either for cognizable or
noncognizable offences, as mandated by sub-section (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.
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