2022 Supreme(SC) 232

SUPREME COURT OF INDIA
(From the High Court of Karnataka Bench at Dharwad)
INDIRA BANERJEE, J.K. MAHESHWARI, JJ.
Gangadhar Narayan Nayak @ Gangadhar Hiregutti - Appellant
Versus
State of Karnataka & Ors. - Respondents
Criminal Appeal No. 451 of 2022 (Arising out of SLP (Criminal) No. 8662 of 2021)
Decided on : 21-03-2022

IMPORTANT POINTS
(1) Provision of Section 23 of POCSO which protects child victims of sexual abuse from unwarranted intrusion into privacy, harassment and mental agony has to be strictly enforced – Provision cannot be allowed to be diluted. [Per Indira Banerjee, J.]
(2) Procedure of Section 155(2) of Cr.P.C. is required to be followed in an offence of POCSO Act under Section 23 which is non-cognizable and Special Court is required to look into procedure followed in investigation – Provisions of POCSO Act override provisions of Cr.P.C. being special enactment only to the extent of having corresponding provision. [Per J.K. Maheshwari, J.]

Headnote:

(A) Protection of Children from Sexual Offences Act, 2012 – Section 23 read with Section 19 – Criminal Procedure Code, 1973 – Section 155(2) read with Sections 4(1) & (2) and 5 – Investigation of offence under Section 23 of POCSO Act – A child, whose identity is disclosed in media may very well be in need of care and protection – Disclosure of identity of child in media may also expose child victim of sexual offence to vindictive retaliation by perpetrators of crime or their accomplices – Legislative intent is to be construed from words used in statute, as per their plain meaning – Had Legislature intended that Cr.P.C. should apply to investigation of an offence under Section 23 of POCSO, would specifically have provided so – Expression “investigation” would, as in Section 4(1) or (2) of Cr.P.C., have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO – In our society, victims of sexual offence are, more often than not, treated as abettor, if not perpetrator of crime, even though victim may be absolutely innocent – Instead of empathizing with victim people start finding fault with victim – Victim is ridiculed, defamed, gossiped about, and even ostracized – Identity of victim should not be discernible from any matter published in media – Provision of Section 23 of POCSO which protects child victims of sexual abuse from unwarranted intrusion into privacy, harassment and mental agony has to be strictly enforced – Provision cannot be allowed to be diluted – Argument of Appellant that proceedings were vitiated and liable to be quashed or Appellant was liable to be discharged without trial, only because of want of prior permission of jurisdictional Magistrate to investigate into alleged offence, cannot be accepted – Appellant would have to defend proceedings initiated against him under Section 23 of POCSO on merits – Order taking cognizance upheld – Appeal dismissed. (Paras 37, 39, 40, 44, 52, 57, 58 and 59)

(B) Constitution of India – Article 39(f) read with Article 12 of Universal Declaration of Human Rights – Rights of a child – Every child has 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 – Inalienable rights of a child include right to protection of privacy – Constitution of India guarantees inalienable and basic rights to all, including children – Right to live with dignity, right to personal liberty, right to privacy, right to equality and/or right against discrimination, right against exploitation, are Fundamental Rights guaranteed by Part III of Constitution of India – Directive Principles of State Policy and in particular Article 39(f) casts an obligation on State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment – For full and harmonious development of his or her personality, child should grow up in an atmosphere of happiness, love and understanding and be brought up in spirit of peace, dignity, tolerance, freedom, equality and solidarity – Right of a child to dignity not only requires that child be protected from offences of sexual assault, sexual harassment and pornography but also requires that dignity of a child be safeguarded – Disclosure of identity of a child who is a victim of sexual offences or who is in conflict with law is in fundamental breach of right of child to dignity, right not to be embarrassed. (Paras 49, 50 and 51)

Per J.K.Maheshwari, J. (Dissenting View)

Protection of Children from Sexual Offences Act, 2012 – Section 23 read with Section 19 – Criminal Procedure Code, 1973 – Section 155(2) read with Sections 4(1) & (2) and 5 – Investigation of offence under Section 23 of POCSO Act – Procedure of Section 155(2) is required to be followed in an offence of POCSO Act under Section 23 which is non-cognizable and Special Court is required to look into procedure followed in investigation – Provisions of POCSO Act override 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 investigation on reporting of offences ought to be made – In absence of having any procedure for investigation under POCSO Act, either for cognizable or non-cognizable offences, as mandated by sub-section (2) of Section 4 of Cr.P.C., procedure prescribed in Cr.P.C. ought to be followed in matter of investigation enquiring into and trial – Section (5) of Cr.P.C. is a saving clause by which procedure prescribed in special enactment will prevail otherwise in absence of provision and procedure specified in Cr.P.C. may be applicable – Section 19 of POCSO Act overrides provisions of Cr.P.C. only to the extent of reporting matters to police or SJPU and other ancillary points so specified in Section 19 – 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 manner of reporting the offence – However, 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, Cr.P.C. would apply – Order impugned taking cognizance and consequential orders passed by Trial Court which is affirmed by High Court, hereby set-aside – Special Court is at liberty to follow procedure prescribed in matter of investigation of non-cognizable offences. (Paras 11,15, 16, 20 and 21)

Facts of the case:

Short question of law involved in this appeal is, whether Section 155(2) of Cr.P.C. applies to 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 Cr.P.C., only because of want of permission of the jurisdictional Magistrate to police, to investigate into the offence?

Findings of Court:

The order of taking cognizance passed by the Special Court after filing charge-sheet passed on 19.04.2018, merely reflect that after perusal of documents as per list which is verified, Court has taken cognizance. The Court has not looked into the vital aspect of following the procedure of Section 155(2) of Cr.P.C. Therefore, at the earliest when the application for discharge was filed, it was dismissed by order impugned dated 28.08.2020 with the incorrect notion regarding overriding effect to the provision of Section 19 of POCSO Act, confirmed by High Court.

Result : Matter referred to Larger Bench.