New Delhi :- JUDGEMENT OVERVIEW
COURT NAME :- SUPREME COURT OF INDIA ( Division Bench – Two Judge)
JUDGEMENT NAME :- Gangadhar Narayan Nayak @ Gangadhar Hiregutti Versus State of Karnataka & Ors.Appeal (Crl.), 451 of 2022,
JUDGEMENT DATE : Mar 21, 2022
RELATED SECTION :- Sexual Offences, Section 23 of the Protection of Children from Sexual Offences Act,
IMPORTANT PARAGRAPH :-
Indira Banerjee, J.
2. This appeal is against a judgment and order dated 17th September 2021 passed by the Dharwad Bench of the High Court of Karnataka, dismissing Criminal Petition No.101420/2020 filed by the Appellant under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”), and upholding an order dated 19th April 2018 passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO”).
3. 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 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?
4. The Appellant is the Editor of Karavali Munjavu Newspaper. On or about 27th October 2017, a news report was published in the Newspaper, Karavali Munjavu, regarding the sexual harassment of a 16 year old girl. The victim was named in the said report.
5. Section 23 of POCSO provides as follows:- “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.”
6. 3 On or about 30th October 2017, the victim’s mother lodged a complaint, inter alia, against the Appellant under Section 23 of POCSO in the Siddapur Police Station, pursuant to which a criminal case being Case No.203/2017 was started against the Appellant.
7. After 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 31st December 2017. By an order dated 19th April 2018, the Court of the Principal District Judge, Uttar Kannada, Karwar, took cognizance of the offence alleged and directed that summons be issued to the Appellant.
8. 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 f iled a Criminal Petition in the High Court under Section 482 of the Cr.P.C.
9. By the impugned judgment and order dated 17th September 2021, 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. The High Court refused to quash the proceedings initiated against the Appellant under Section 23 of POCSO.
10. Mr. Devdutt Kamat, Senior Counsel appearing on behalf of the Appellant submitted that the provisions of the Cr.P.C. are applicable to all offences punishable by any law for the time being in force, except where a special law provides for a special procedure, overriding the general procedure under the Cr.P.C.
11. In support of his aforesaid submissions, Mr. Kamat referred to Section 2(n) of the Cr.P.C., which defines ‘offence’ to mean any act or omission made punishable by any law for the time being in force. Referring to Section 4 of the Cr.P.C. particularly sub-section (2) thereof, Mr. Kamat emphasized that all offences, including an offence under Section 23 of POCSO have to be investigated and tried in accordance with the Cr.P.C.
12. Section 4 of the Cr.P.C. reads: “4. Trial of offences under the Indian Penal Code and other laws .—(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) 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.”
13. Mr. Kamat further submitted that an offence under Section 23 of POCSO, which is punishable with maximum imprisonment which may extend to one year, is a non-cognizable and bailable offence, as per Section 2(l) read with Part II of the First Schedule of the Cr.P.C., extracted hereinbelow for convenience:
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