REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 451 OF 2022
(Arising out of SLP (Criminal) No. 8662 of 2021)
Gangadhar Narayan Nayak
@ Gangadhar Hiregutti …. Appellant
Versus
State of Karnataka & Ors. …. Respondents
J U D G M E N T
Indira Banerjee, J.
Leave granted.
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
2
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.”
3
6. 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
filed 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.
4
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:
5
“2(l) “non-cognizable offence” means an offence for which, and “noncognizable case” means a case in which, a police officer has no
authority to arrest without warrant;”
“II-CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS”
Offence Cognizable or noncognizable
Bailable or nonbailable
By what Court
triable
If punishable with
death, imprisonment
for life, or
imprisonment for
more than 7 years.
Cognizable Non-Bailable Court of Session
If punishable with
imprisonment for 3
years and upwards
but not more than 7
years.
Ditto Ditto
Magistrate of the
first class
If punishable with
imprisonment for
less than 3 years or
with fine only.
Non-cognizable Bailable Any Magistrate
14. Mr. Kamat submitted that the mandatory provision of Section
155(2) of the Cr.P.C. makes it obligatory on a Police Officer to
investigate a non-cognizable case with prior permission of the
Magistrate, failing which the proceedings are liable to be quashed.
The police, therefore, have no jurisdiction to investigate into an
offence under Section 23 of POCSO, without prior sanction of the
jurisdictional Magistrate.
15. Mr. Kamat took this Court through Section 155 of the Cr.P.C., set
out hereinbelow:
“155. Information as to non-cognizable cases and investigation of
such cases.—(1) When information is given to an officer in charge of
a police station of the commission within the limits of such station of
a non-cognizable offence, he shall enter or cause to be entered the
substance of the information in a book to be kept by such officer in
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such form as the State Government may prescribe in this behalf,
and refer the informant to the Magistrate.
(2) 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.
(3) Any police officer receiving such order may exercise the same
powers in respect of the investigation (except the power to arrest
without warrant) as an officer in charge of a police station may
exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least
one is cognizable, the case shall be deemed to be a cognizable case,
notwithstanding that the other offences are non-cognizable.”
16. Mr. Kamat emphatically argued that no Police Officer could
investigate a non-cognizable offence, without the order of a
Magistrate having power to try such case, or commit the case for
trial, in view of the express bar of Section 155(2) of the Cr.P.C.
17. Mr. Kamat argued that, from the language and tenor of POCSO
read with the Cr.P.C., it is patently clear that Legislature has intended
that the provisions of the Cr.P.C. would have to be followed in respect
of an offence under POCSO and more so in respect of an offence
under Section 23 of POCSO. Mr. Kamat submitted that unlike Section
19, Section 23 of POCSO does not exclude the application of the
provisions of the Cr.P.C.
18. Mr. Kamat submitted that Section 31 read with Section 33(9) of
POCSO categorically makes the provisions of the Cr.P.C. applicable to
proceedings under POCSO before the Special Court. In the context of
7
his submissions, Mr. Kamat referred to Section 31 and Section 33(9)
of POCSO extracted hereinbelow:
“31. Application of Code of Criminal Procedure, 1973 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.
…
33. Procedure and powers of Special Court.-
(9) 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.”
19. Mr. Kamat emphatically argued that the finding of the High
Court that the provisions of the Cr.P.C. were excluded for the purpose
of Section 23 of POCSO by reason of Section 19 of POCSO, was
erroneous. He emphatically argued:
(i) Section 23 of POCSO does not exclude the provisions of Cr.P.C.
Section 19 of POCSO, which excludes the Cr.P.C., in respect of
reporting of an offence, does not apply to an offence under Section 23
of POCSO.
(ii) Section 31 of POCSO makes the Cr.P.C. applicable to
proceedings before the Special Court under POCSO, unless
specifically excluded. This provision has not been noticed by the High
Court.
8
(iii) Section 33 (9) of POCSO provides that the trial of offences is to
be conducted in accordance with the procedure specified in the
Cr.P.C. This Provision has also not been noticed by the High Court.
20. In support of his argument that proceedings against the
Appellant were liable to be quashed for want of permission of the
jurisdictional Magistrate under Section 155(2) of the Cr.P.C., Mr. Kamat
cited Keshav Lal Thakur v. State of Bihar
1
where this Court held:
“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 into 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…”
21. Mr. Kamat argued that in Keshav Lal Thakur (supra) the facts
and circumstances were similar to the facts and circumstances of this
case where the chargesheet had been filed without any order of the
competent Magistrate under Section 155 (2) of the Cr.P.C. and
cognizance had also been taken. This Court categorically held that
the entire investigation was vitiated by want of permission under
Section 155(2) of the Cr.P.C.
22. Mr. Kamat also cited State of Punjab v. Davinder Pal Singh
Bhullar and Others
2 where this Court held:
“107. It is a settled legal proposition that if initial action is not in
consonance with law, all subsequent and consequential proceedings
would fall through for the reason that illegality strikes at the root of
1 (1996) 11 SCC 557
2 (2011) 14 SCC 770
9
the order. In such a fact situation, the legal maxim sublato
fundamento cadit opus meaning thereby that foundation being
removed, structure/work falls, comes into play and applies on all
scores in the present case.
108. In Badrinath v. Govt. of T.N. [(2000) 8 SCC 395 : 2001 SCC
(L&S) 13 : AIR 2000 SC 3243] and State of Kerala v. Puthenkavu
N.S.S. Karayogam [(2001) 10 SCC 191] this Court observed that
once the basis of a proceeding is gone, all consequential acts,
actions, orders would fall to the ground automatically and this
principle is applicable to judicial, quasi-judicial and administrative
proceedings equally.
109. Similarly in Mangal Prasad Tamoli v. Narvadeshwar
Mishra [(2005) 3 SCC 422] this Court held that if an order at the
initial stage is bad in law, then all further proceedings, consequent
thereto, will be non est and have to be necessarily set aside.
110. In C. Albert Morris v. K. Chandrasekaran [(2006) 1 SCC 228]
this Court held that a right in law exists only and only when it has a
lawful origin. (See also Upen Chandra Gogoi v. State of
Assam [(1998) 3 SCC 381 : 1998 SCC (L&S) 872] , Satchidananda
Misra v. State of Orissa [(2004) 8 SCC 599 : 2004 SCC (L&S)
1181] , SBI v. Rakesh Kumar Tewari [(2006) 1 SCC 530 : 2006 SCC
(L&S) 143] and Ritesh Tewari v. State of U.P. [(2010) 10 SCC 677 :
(2010) 4 SCC (Civ) 315 : AIR 2010 SC 3823]
111. Thus, in view of the above, we are of the considered opinion
that the orders impugned being a nullity, cannot be
sustained. As a consequence, subsequent proceedings/
orders/FIR/ investigation stand automatically vitiated and
are liable to be declared non est.”
23. Relying on the aforesaid judgment, Mr. Kamat emphatically
argued that the initial action of investigation against the Appellant, of
offence under Section 23 of POCSO, being illegal, all subsequent
actions would be vitiated.
24. Mr. Padhi, appearing for the State of Karnataka, submitted that
POCSO had been enacted by Parliament with the laudatory object of
punishing sexual offences against children. Section 23 of POCSO
prevents publication of the identity of the victim. In this case, the
name of the victim had been published in the news report.
10
25. Mr. Padhi next argued that POCSO being a special enactment, it
overrides the general procedural law. Moreover, Section 19 of POCSO
begins with a non obstante clause which reads “Notwithstanding
anything contained in the Code of Criminal Procedure, 1973….”. This
clearly shows that Sections 154 and 155 of the Cr.P.C. have no
application to an offence under Section 23 of POCSO. The police has
duty under Section 19(1) and 19(2)(c) of POCSO to record the
information given by any person having knowledge that a crime
under POCSO is likely to be committed or has been committed. Mr.
Padhi submitted that Section 19 of POCSO applies to any offence
under POCSO. Section 19 of POCSO does not exclude offence under
Section 23 of POCSO.
26. Mr. Padhi further submitted that the case had gone beyond the
stage of investigation and chargesheet had been filed. The Court had
taken cognizance. Mr. Padhi argued that even assuming, for the sake
of argument, that the police were required to take prior permission of
the concerned jurisdictional Magistrate before proceeding with the
investigation, that in itself does not vitiate the order of the Court
taking cognizance and framing charges. The accused has to
demonstrate grave prejudice, which the Appellant has not been able
to do.
11
27. Mr. Padhi cited Fertico Marketing and Investment Private
Limited and Others v. Central Bureau of Investigation and
Another
3
, where this Court held:
“22. …
“9. … If, therefore, cognizance is in fact taken, on a police report
vitiated by the breach of a mandatory provision relating to
investigation, there can be no doubt that the result of the trial
which follows it cannot be set aside unless the illegality in the
investigation can be shown to have brought about a miscarriage
of justice. That an illegality committed in the course of
investigation does not affect the competence and the jurisdiction
of the Court for trial is well settled as appears from the cases
in Parbhu v. King Emperor [Parbhu v. King Emperor, 1944 SCC
OnLine PC 1 : (1943-44) 71 IA 75 : AIR 1944 PC 73]
and Lumbhardar Zutshi v. R. [Lumbhardar Zutshi v. R., 1949 SCC
OnLine PC 64 : (1949-50) 77 IA 62 : AIR 1950 PC 26]
These no doubt relate to the illegality of arrest in the course
of investigation while we are concerned in the present cases
with the illegality with reference to the machinery for the
collection of the evidence. This distinction may have a
bearing on the question of prejudice or miscarriage of
justice, but both the cases clearly show that invalidity of the
investigation has no relation to the competence of the Court.
We are, therefore, clearly, also, of the opinion that where the
cognizance of the case has in fact been taken and the case
has proceeded to termination, the invalidity of the precedent
investigation does not vitiate the result, unless miscarriage
of justice has been caused thereby.”
It could thus be seen that this Court has held that the cognizance
and the trial cannot be set aside unless the illegality in the
investigation can be shown to have brought about miscarriage of
justice. It has been held that the illegality may have a bearing on
the question of prejudice or miscarriage of justice but the invalidity
of the investigation has no relation to the competence of the court.”
28. Mr. Padhi submitted that it is settled law that an order taking
cognizance of an offence alleged is not vitiated by any defect in
investigation. Section 462 read with Section 465 of the Cr.P.C.
protects the trial from any defect in investigation. Distinguishing
Keshav Lal Thakur (supra) cited by Mr. Kamat, Mr. Padhi argued
that the same does not deal with the earlier judgment of this Court in
3 (2021) 2 SCC 525
12
H. N. Rishbud and Others v. State of Delhi
4
. Mr. Padhi submitted
that the judgment in Davinder Pal Singh Bhullar (supra) cited by
Mr. Kamat has no application in the facts and circumstances of this
case since the issue was as follows:
“2. The appeals herein raise peculiar substantial questions of law as
to whether the High Court can pass an order on an application
entertained after final disposal of the criminal appeal or even suo
motu particularly, in view of the provisions of Section 362 of the
Code of Criminal Procedure, 1973 (hereinafter called “CrPC”) and as
to whether in exercise of its inherent jurisdiction under Section 482
CrPC the High Court can ask a particular investigating agency to
investigate a case following a particular procedure through an
exceptionally unusual method which is not in consonance with the
statutory provisions of CrPC.”
29. In his reply, Mr. Kamat argued that this is not a case of
defective investigation as sought to be argued on behalf of the State,
but a case of investigation without jurisdiction. Distinguishing Fertico
Marketing and Investment Private Limited (supra) cited on
behalf of the State, Mr. Kamat argued that defective investigation
may not vitiate a trial unless there is miscarriage of justice. In
Fertico Marketing and Investment Private Limited (supra)
consent under Section 6 of the Delhi Special Police Establishment Act
1946 had subsequently been granted to the CBI after registration of
the FIR.
30. Mr. Kamat also argued that Sections 462 and 465 of the Cr.P.C.,
cited by Mr. Padhi are not attracted in this case. Section 462 relates
to inquiry or trial or other proceedings in the wrong place and Section
465 saves an order of a Court of competent jurisdiction in case of any
4 (1955) 1 SCR 1150
13
error or irregularity in any sanction for the prosecution, unless the
Court is of the opinion that a failure of justice had, in fact, been
occasioned.
31. 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.
32. 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. Section 5
of the Cr.P.C. is set out hereinbelow for convenience: -
“5. Saving.—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.”
14
33. 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.
34. Section 19 of POCSO is set out hereinbelow for convenience:
“19. Reporting of offences.- (1) 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.
(2) Every report given under sub-section (1) shall be--
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit.
(3) Where the report under sub-section (1) is given by a child, the
same shall be recorded under subsection (2) in a simple language so
that the child understands contents being recorded.
(4) In case contents are being recorded in the language not
understood by the child or wherever it is deemed necessary, a
translator or an interpreter, having such qualifications, experience and
on payment of such fees as may be prescribed, shall be provided to
the child if he fails to understand the same.
(5) Where the Special Juvenile Police Unit or local police is satisfied
that the child against whom an offence has been committed is in need
of care and protection, then, it shall, after recording the reasons in
writing, make immediate arrangement to give him such care and
protection( including admitting the child into shelter home or to the
nearest hospital) within twenty-four hours of the report, as may be
prescribed.
(6) The Special Juvenile Police Unit or local police shall, without
unnecessary delay but within a period of twenty-four hours, report the
15
matter to the Child Welfare Committee and the Special Court or where
no Special Court has been designated, to the Court of Session,
including need of the child for care and protection and steps taken in
this regard.
(7) No person shall incur any liability, whether civil or criminal, for
giving the information in good faith for the purpose of sub-section (1).”
35. 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.
36. Moreover, sub-section (5) of Section 19 of POCSO provides that
where the Special Juvenile Police Unit or local police is satisfied that
the child against whom an offence has been committed, is in need of
care and protection it shall, after recording reasons in writing, make
immediate arrangements to give the child such care and protection
including admitting the child into a shelter home or hospital within 24
hours of the report. 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.
16
37. Sub-section (6) of Section 19 of POCSO requires the Special
Juvenile Police Unit or local police, as the case may be, to report
information to the Child Welfare Committee and the Special Court or
where no Special Court has been designated to the Court of Sessions
without unnecessary delay, within 24 hours from the receipt of
information. The report is to include need, if any, of the concerned
child for care and protection and steps taken in this regard. A child,
whose identity is disclosed in the media may very well be in need of
care and protection. Disclosure of the identity of the child in the
media may also expose the child victim of sexual offence to vindictive
retaliation by the perpetrators of the crime or their accomplices.
38. Section 31 of POCSO, relied upon by Mr. Kamat provides that
the provisions of the Cr.P.C., including provisions as to bail and bonds
are to 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 prosecution before
a Special Court shall be deemed to be a Public Prosecutor. The said
Section has nothing to do with reporting or investigation of an
offence. Section 33(9) of POCSO extracted hereinabove, which
confers powers of a Court of Sessions on the Special Court to try
offences under POCSO, also has nothing to do with the reporting or
investigation of an offence. Subject to the provisions of POCSO, the
Special Court is to try an offence under POCSO, as if it were a Court of
Sessions “as far as may be”, in accordance with the procedure
17
specified in the Cr.P.C. for trial before a Sessions Court. Neither
Section 31 nor Section 33(9) of POCSO makes any reference to
investigation.
39. It is well settled that 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.
40. 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.
41. Section 228A of IPC makes disclosure of the identity of any
person, against whom the offence of rape or any related offence is
found to have been committed, punishable with imprisonment of
either description for a term which may extend to two years and also
liable to fine.
42. Sub-section (2) of Section 327 of the Cr.P.C. requires that the
trial of rape be conducted in camera and sub-section (3) of the said
18
Section prohibits the printing or publishing of any matter in relation to
proceedings under Sections 376, 376A to 376E of the IPC.
43. Section 74 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereinafter referred to as the “JJ Act”) prohibits
disclosure of the name, address, school or any other particular, which
may lead to the identification of a child in conflict with law or a child
in need of care and protection or a child victim or witness of a crime
in any newspaper, magazine, news-sheet or audio-visual media or
other forms of communication, regarding any inquiry or investigation
or judicial procedure, unless for reasons to be recorded in writing, the
Board or Committee, as the case may be, holding the inquiry may
permit such disclosure, if in its opinion such disclosure is in the best
interest of the child.
44. 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.
45. 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.
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46. As stated in the Preamble to the Universal Declaration of
Human Rights, adopted by the United Nations on 10th December
1948, recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family, is the
foundation of freedom, justice and peace in the world. Human Rights
should be protected by the Rule of Law.
47. As per the Universal Declaration of Human Rights, all human
beings are born free and equal in dignity and rights. They are
endowed with reason and conscience and should act towards one
another in a spirit of brotherhood. Nobody is to be subjected, inter
alia, to degrading treatment.
48. Article 12 of the Universal Declaration of Human Rights says
that no one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks on his or her
honour and reputation. Everyone has the right to protection of the
law against such interference or attacks.
49. Every child has the 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. The inalienable rights of a child include the right to
protection of privacy. The Constitution of India guarantees the
aforesaid inalienable and basic rights to all, including children. The
right to live with dignity, the right to personal liberty, the right to
20
privacy, the right to equality and/or the right against discrimination,
the right against exploitation, are Fundamental Rights guaranteed by
Part III of the Constitution of India.
50. The Directive Principles of State Policy and in particular Article
39(f) casts an obligation on the 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 the full and harmonious development of his or her
personality, the child should grow up in an atmosphere of happiness,
love and understanding and be brought up in the spirit of peace,
dignity, tolerance, freedom, equality and solidarity.
51. The United Nations Convention on the Rights of the Child,
ratified by India on 11th December 1992, was based on the basic
principles, inter alia, of non-discrimination against a child, the
best interest of the child, the right of a child to survival and
development. The Convention on the Rights of the Child also
requires States to undertake all appropriate national, bilateral and
multilateral measures to prevent exploitation of children. POCSO not
only protects children from sexual offences but also protects the
interests of children in general, as victims as well as witnesses. The
right of a child to dignity not only requires that the child be protected
from offences of sexual assault, sexual harassment and pornography
21
but also requires that the dignity of a child be safeguarded.
Disclosure of the identity of a child who is a victim of sexual offences
or who is in conflict with the law is in fundamental breach of the right
of the child to dignity, the right not to be embarrassed.
52. Article 16 of the Convention on the Rights of the Child provides
that no child shall be subjected to arbitrary or unlawful interference
with his or her privacy. The child has the right to the protection of the
law against such interference. India has ratified the Convention on
the Rights of the Child. The J.J. Act and POCSO are in furtherance of
the obligations of India under the Convention. The 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. The provision cannot be allowed to
be diluted.
53. In Nipun Saxena v. Union of India
5
, this Court held:-
“38. No doubt, it is the duty of the media to report every crime
which is committed. The media can do this without disclosing the
name and identity of the victim in case of rape and sexual offences
against children. The media not only has the right but an obligation
to report all such cases. However, media should be cautious not to
sensationalise the same. The media should refrain from talking to
the victim because every time the victim repeats the tale of misery,
the victim again undergoes the trauma which he/she has gone
through. Reportage of such cases should be done sensitively
keeping the best interest of the victims, both adult and children, in
mind. Sensationalising such cases may garner television rating
points (TRPs) but does no credit to the credibility of the media.”
5 2019 (2) SCC 703
22
54. In Nipun Saxena (supra), this Court directed: -
“50. In view of the aforesaid discussion, we issue the following
directions:
50.1. No person can print or publish in print, electronic, social
media, etc. the name of the victim or even in a remote manner
disclose any facts which can lead to the victim being identified and
which should make her identity known to the public at large.”
55. The judgment of this Court in Keshav Lal Thakur (supra) is
clearly distinguishable, in that this Court was dealing with
investigation into an offence under Section 31 of the Representation
of People Act, 1950. The Representation of People Act, 1950 does not
contain any provision regulating the manner or place of investigation,
or inquiry into any crime, or otherwise dealing with any offence under
the said Act.
56. There can be no dispute with the proposition of law laid down in
paragraphs 107 to 111 of Davindar Pal Singh Bhullar (supra) cited
by Mr. Kamat. In this case for the reasons discussed above, it cannot
be said that the impugned order of the Special Court taking
cognizance of the complaint against the Appellant suffers from any
such illegality that strikes at the root of the said order. The legal
maxim “sublato fundamento cadit opus” is not attracted.
57. Mr. Kamat’s argument that Section 19 of POCSO does not
include offence under Section 23 of POCSO is unsustainable in law
and not supported by any cogent reasons. As observed above, the
words “offence under this Act” in Section 19(1) of POCSO makes it
23
clear that Section 19 includes all offences under POCSO including
offence under Section 23 of POCSO. It is reiterated at the cost of
repetition that a child against whom offence under Section 23 of
POCSO has been committed, by disclosure of her identity, may
require special protection, care and even shelter, necessitating
expeditious investigation for compliance of sub-sections (5) and (6) of
Section 19 of POCSO.
58. I am unable to accept the argument of the Appellant that the
proceedings were vitiated and liable to be quashed or the Appellant
was 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.
59. For the reasons discussed above, I do not find any infirmity with
the impugned judgment and order of the High Court which calls for
interference by this Court. The appeal is, accordingly, dismissed.
.………………………………….J.
[ INDIRA BANERJEE ]
NEW DELHI;
MARCH 21, 2022
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 451 OF 2022
(ARISING OUT OF SLP (CRL.) NO. 8662 OF 2021)
GANGADHAR NARAYAN NAYAK
@ GANGADHAR HIREGUTTI …APPELLANT
Versus
STATE OF KARNATAKA & OTHERS. ...RESPONDENT(S)
JUDGMENT
J.K. Maheshwari, J.
I have the benefit of going through the opinion of my
esteemed sister Justice Indira Banerjee, however I am
unable to agree to the view taken in the judgment for the
reasons to follow.
2. Leave granted.
3. The facts as succinctly stated in the order and on
perusal of those, the first core question that arises is that
“In absence of any classification provided in the Protection
of Children from Sexual Offences Act, 2021 (in short POCSO
2
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?”. The another question is
“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.?”. The last question is “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 ?”
4. Before adverting to answer the aforesaid questions,
the backdrop of the issue in the instant appeal is
described here. As per allegations, the appellant allegedly
committed an offence under Section 23 of POCSO Act for
disclosing the identity of the victim. Mother of the victim
lodged the complaint on 30.10.2017 against the appellant.
The matter was reported by the police to the Special Court.
3
Thereafter, investigation was completed and challan was
filed on 31.12.2017. The Special Court in-turn took
cognizance on 19.04.2018. The appellant then moved an
application for discharge before the Special Court, which
was rejected vide order dated 28.08.2020. The order taking
cognizance and consequential proceedings were assailed
by the appellant in a petition under Section 482 of Cr.P.C.
before the High Court seeking quashment inter-alia on the
ground that offence under Section 23 of POCSO Act being
non-cognizable, investigation conducted by police
authorities without the order of the magistrate as mandated
in Section 155(2) of the Cr.P.C and filing the challan,
completing investigation vitiates trial, and all the
proceedings deserve to be quashed.
5. The Special Court while rejecting the application for
discharge observed that in view of Section 19 of POCSO Act,
all offences under the Act are cognizable after taking
guidance by the judgment of Delhi High Court in the case of
Santosh Kumar Mandal vs. State, 2016 SCC OnLine Del
5378. It was held the police have power to register the
case and investigate without obtaining permission from the
4
magistrate. The Court also observed that sufficient material
is available against the appellant to frame charge under
Section 23 of POCSO Act and directed to frame the charges.
6. The High Court by the impugned order held that
Section 19 of POCSO Act provides for reporting of offence
and does not classify cognizable or non-cognizable offence.
It is said, sub-section (1) of Section 19 of POCSO Act starts
with ‘non-obstante’ clause which overrides the provisions
contained under Sections 154 and 155 of Cr.P.C. However,
the provisions of Sections 154 and 155 of Cr.P.C. are
specifically excluded from application to the provisions of
the POCSO Act. Therefore, obtaining the order from the
Magistrate under Section 155(2) of Cr.P.C. to investigate a
non-cognizable case is not necessary.
7. All the aforesaid questions are interlinked to each
other, therefore, it is being adverted commonly. In this
respect, POCSO Act does not clarify regarding cognizable
and non-cognizable offences. However, the definition of
the cognizable and non-cognizable offence under Sections
2(c) and 2(l) of Cr.P.C. may be relevant and quoted for
ready reference –
5
2. Definitions. — In this Code, unless
the context otherwise requires —
**
(c) “cognizable offence” means an
offence for which, and “cognizable
case” means a case in which, a police
officer may, in accordance with the First
Schedule or under any other law for the
time being in force, arrest without
warrant;
**
(l) “non-cognizable offence” means an
offence for which, and “non-cognizable
case” means a case in which, a police
officer has no authority to arrest
without warrant;
8. On perusal of the aforesaid, it is clear that on
commission of the cognizable offence, a police officer may
in accordance with First Schedule of Cr.P.C. or under any
other law may arrest the accused without warrant. While in
a non-cognizable offence, a police officer has no authority
to arrest without warrant obtained by an order of the Court.
9. The First Schedule of Cr.P.C. provides for classification
of offence which is in two parts. Part first of the said
Schedule specify punishment; cognizability or noncognizability; bailable or non-bailable; and triable by which
6
court. Part second of First Schedule deals with the offences
committed under any other law and specify the
description of the offences; cognizability – noncognizability; bailable – non-bailable; and triable by which
Court. In para 14 of the judgment above, part second of
the First Schedule has been quoted. We can take
advantage of it and on perusal of the same, it is clear that
the sentence with imprisonment for less than 3 year or with
fine if prescribed in that law, then commission of such
offence under any other laws will be non-cognizable,
bailable and triable by any magistrate. In the present case,
an offence under Section 23 of POCSO Act has been
allegedly committed in contravention of sub-sections (1)
and (2) thereof, which is punishable with imprisonment for
a period not less than 6 months but it may extend to 1 year
or with fine or with both. Under the POSCO Act, it is not
clear all the offences under the said Act are cognizable or
some are non-cognizable. However, the Court may have to
take the assistance from the provisions of Cr.P.C. on the
said issue. In this regard, Section 4 of Cr.P.C. quoted in para
13 of the judgment above can be profitably looked into. As
7
per sub-section 1 of Section 4 of Cr.P.C., trial of offences
under Indian Penal Code, and as per sub-section (2) of
Section 4 of Cr.P.C. under any other laws shall be
investigated enquired into, tried and otherwise dealt with
as specified in sub-section (1), subject to any enactment for
the time being in force regulating the manner or place of
investigating, enquiring into, trying or otherwise dealing
with such offences. Section 5 of Cr.P.C. is a ‘savings’ clause
whereby the procedure prescribed in any special or local
law for the time being in force shall remain unaffected from
the procedure provided in Cr.P.C. So, the provisions
specified in any special enactment along with its procedure
shall override the provisions of Cr.P.C. and be followed . In
other words, the provisions of Cr.P.C. would not tinker with
the provisions of special enactment and they are saved to
such extent as specified in Section 5 of Cr.P.C. and would
be applicable as per Section 4(2) of the Cr.P.C.
10. As per the findings recorded by Special Court as well
the High Court, the shelter of Section 19 of POCSO Act has
been taken relying upon the judgment of Delhi High Court
in the case of Santosh Kumar Mandal (supra). However,
8
the scope, context, applicability of Section 19 of POCSO Act
after the said judgment is required to be seen, and to find
out whether special enactment deals with investigation
after reporting. In para 36 of the judgment above, Section
19 has been quoted which is part of Chapter V of the
POCSO Act and provide a procedure for ‘reporting’ of the
cases. It says that ‘when any person including the child has
apprehension that an offence under the POCSO Act is likely
to be committed or has knowledge of commission of the
offence, he shall provide such information to the Special
Juvenile Police Unit (in short “SJPU”) or local police. On
reporting the offence under the Act, every such report shall
be ascribed an entry number and be recorded in writing;
after reading over to the informant; and shall be entered
in a book to be kept by the Police Unit. Sub-section (2)
prescribes a procedure for ascribing the report made under
sub-section (1). As per sub-section (3) , while ascribing the
report, it should be in simple language so the child can
understand its contents being recorded as it is. As per subsection (4), if necessary, the translator/interpreter may be
provided to the child. Looking to the language of sub-
9
sections (3) and (4), it clearly applies in a case where the
report has been lodged by the child and not by the family
members. Section 19(5)(6) prescribes special procedure
on reporting to the SJPU or local police, and also cast duty
on them that if child is in need of care and protection, after
recording the reasons in writing, immediate arrangements
of such care and protection including admitting the child
into shelter home or nearest hospital within 24 hours of
report, ought to have been made. Simultaneously, they are
supposed to report the matter to the Child Welfare
Committee, (in short “CWC”) and also to the Special Court
or the Court of Sessions, as the case may be. Sub-section
(7) confers protection on a person reporting such offence
under sub-section (1) in good faith.
11. 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 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. 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. The said
Magistrate may pass an order for investigation which shall
be abided by the police officer and shall exercise the same
11
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.
12. After the discussion to the basic provisions of Cr.P.C.
and POCSO Act, the order passed by the Trial Court,
relying upon the judgment of Delhi High Court in the case of
Santosh Kumar Mandal (supra) in paragraph 10 is
required to be examined. On perusal of the said judgment
of Delhi High Court, it reveals Hon’ble Single Judge made
a sweeping observation while dealing with the case of
Section 12 in reference to Section 19 and said all the
12
offences punishable under the POCSO Act are cognizable in
nature. The said observation does not appear to be in
consonance to the language of Section 19 of POCSO Act.
After perusal of the facts and findings of the said case, it is
suffice to say that the Delhi High Court dealt with a case in
which the sentence extendable up to three years was there
and weighed with the principle that the sentence
maximum so prescribed can be looked into to decide the
cognizability or non-cognizability. Therefore, under the
said impression, the observation made by the High Court
that all the offences under the POCSO Act are cognizable,
which, in my opinion, can not be said to be correct view.
13. The matter with respect to cognizability or noncognizability, the Division Bench judgment of Rajasthan
High Court in Criminal Reference No. 1 of 2020, titled
Nathu Ram & Ors. vs. State of Rajasthan & Anr.,
2021(1) RLW 211 may be relevant, wherein the question
posed for answer was as under:
“What would be the nature of an offence (whether
cognizable or non-cognizable) for which
imprisonment “may extend to three years” is
provided and no stipulation is made in the statute
regarding it being cognizable/non-cognizable.”
13
14. The High Court, considering all the provisions and also
the judgments of this Court in the cases of Rajiv
Chaudhary vs. State (NCT) of Delhi, AIR 2001 SC 2369
and Rakesh Kumar Paul vs. State of Assam, (2017) 15
SCC 67, has answered the reference as under:
“21. … …. … … … …
Thus, the classification made as aforesaid,
for determination of nature of offence
whether it is cognizable or noncognizable, the maximum punishment
that may be awarded for particular
offence, is relevant and not the minimum
sentence.
25. Accordingly, the reference is
answered in terms that unless otherwise
provided under the relevant statute, the
offences under the laws other than IPC
punishable with imprisonment to the
extent of three years, shall fall within the
classification II of offences classified under
Part II of First Schedule and thus, shall be
cognizable and non-bailable.
Consequently, the offence under Section
91(6)(a) of the Act of 1956 shall be
cognizable and non-bailable.”
14
15. Thus, as per the discussion made hereinabove, it is to
conclude that the Delhi High Court’s judgment of Santosh
Kumar Mandal (supra) deals with an offence of Section 12
wherein maximum sentence prescribed was extendable up
to 3 years, however the said offence was found
cognizable. It is to state that the observation made in the
said judgment that all offences under POCSO Act are
cognizable, is in my humble opinion not justified without
taking note of the provisions of Cr.P.C. It is true that to
decide the cognizability and non-cognizability, the
maximum sentence prescribed for the offence would be
taken into consideration, but if the sentence prescribed for
the offence is less than 3 years then those offences of
POCSO Act would be non-cognizable. It is clarified,
Section 19 of the POCSO Act overrides the provisions of
Cr.P.C. only to the extent of reporting the matters to the
police or SJPU and other ancillary points so specified in
Section 19.
16. 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
15
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.
17. In the said context, it is required to be seen, what may
be the mode of investigation as per the provisions of Cr.P.C.
in non-cognizable cases. As per Chapter XII of Cr.P.C., under
Section 154, the F.I.R. in a cognizable offence may be
registered by the in-charge of the police station and reduce
so in writing. Section 155 prescribes the information as to
non-cognizable cases and manner of investigation of such
cases. Section 156 provides the power to investigate a
cognizable case to a police officer while Section 157
specifies a procedure for investigation. On perusal thereto,
it is apparent that the officer in-charge of the police station
is having power to investigate any cognizable case without
the order of the Magistrate and while investigating the
same, he shall forthwith report the same to the Magistrate
who is having power to take cognizance of such offence and
he may also relegate the said investigation as prescribed in
the Cr.P.C. or as per the notification issued by the State
16
Government. Therefore, it is clear that in the cases where
the commission of 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 noncognizable 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. Learned counsel for the appellant has placed
reliance on the judgment of this Court in Keshav Lal
Thakur vs. State of Bihar, (1996) 11 SCC 557. In the said
case, offence under Section 31 of Representation of
People’s Act, 1950, was alleged to have been committed.
After investigation, a final report was submitted praying for
discharge by police on which Magistrate took cognizance,
which was challenged before High Court under Section 482
and the petition was dismissed, which was assailed before
this Court. This Court observed as thus:
17
“3. We need not go into the question
whether in the facts of the instant case
the above view of the High Court is
proper or not for the impugned
proceeding has got to be quashed as
neither the police was entitled to
investigate into the offence in question
nor the Chief Judicial Magistrate to take
cognizance upon the report submitted
on completion of such investigation. 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
Cr.P.C. Of course, the police is entitled to
investigate into a non-cognizable offence
pursuant to an order of a competent
Magistrate under Section 155 (2) Cr.P.C.,
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. While on this point, it may
be mentioned that in view of the
explanation to Section 2(d) Cr.P.C.,
which defines ‘complaint’, the police
is entitled to submit, after
investigation, a report a relating to a
non-cognizable offence in which case
such a report is to be treated as a
’complaint’ of the police officer
concerned, but that explanation will not
be available to the prosecution here as
that related to a case where the
18
police initiates investigation into a
cognizable offence – unlike the present
one – but ultimately finds that only a
non-cognizable offence has been made
out.
On perusal of the said, it is clear that the view taken by
High Court upholding the order taking cognizance by
Magistrate was not found justified on the ground that the
police was not entitled to investigate into the offence and
upon such a report of the police officer taking cognizance
after completion of investigation by the Magistrate was also
not justified. The Court observed that the offence being
non-cognizable, the police is entitled to investigate such
offence pursuant to an order of competent Magistrate
specified under Section 155(2) of Cr.P.C. But admittedly, no
such order was passed in the case, therefore, this Court
said that the recourse as taken is not justified and quashed
the impugned proceedings. Learned counsel distinguishing
the judgment of Fertico Marketing and Investment
Private Limited & Ors. vs. Central Bureau of
Investigation & Anr., (2021) 2 SCC 525, has relied upon
the judgment of State of Punjab vs. Davinder Pal Singh
Bhullar, (2011) 14 SCC 770 to contend that if initial action
19
itself is illegal, all subsequent actions emanating from that
act are also a nullity, however, prayed for quashment of
proceedings.
18. Per contra, learned counsel for the respondent State
relied upon the judgment of Fertico (supra) to contend that
seeking consent of the State Government under Section 6
of Delhi Special Police Establishment Act, 1946 to
investigate the offence, if not taken would not be an
impediment to vitiate the trial unless there is a miscarriage
of justice. After perusal of the said judgment, it is revealed
that the said judgment relies upon the judgment of 3-Judge
bench of this Court in H.N. Rishbud & Inder Singh vs.
State of Delhi, AIR 1955 SC 196 wherein paras 9 and 10
embark upon the niceties of the law relating to the said
issue and those are reproduced as thus:
“9. The question then requires to be
considered whether and to what extent
the trial which follows such investigation
is vitiated. Now, trial follows cognizance
and cognizance is preceded by
investigation. This is undoubtedly the
basic scheme of the Code in respect of
cognizable cases. But it does not
necessarily follow that an invalid
investigation nullifies the cognizance or
20
trial based thereon. Here we are not
concerned with the effect of the breach
of a mandatory provision regulating the
competence or procedure of the Court as
regards cognizance or trial. It is only with
reference to such a breach that the
question as to whether it constitutes an
illegality vitiating the proceedings or a
mere irregularity arises. A defect or
illegality in investigation, however
serious, has no direct bearing on the
competence or the procedure relating to
cognizance or trial. No doubt a police
report which results from an
investigation is provided in Section 190
of the Code of Criminal Procedure as the
material on which cognizance is taken.
But it cannot be maintained that a valid
and legal police report is the foundation
of the jurisdiction of the Court to take
cognizance. Section 190 of the Code of
Criminal Procedure is one out of a group
of sections under the heading
“Conditions requisite for initiation of
proceedings”. The language of this
section is in marked contrast with that of
the other sections of the group under the
same heading i.e. Sections 193 and 195
to 199. These latter sections regulate
the competence of the Court and bar its
jurisdiction in certain cases excepting in
compliance therewith. But Section 190
does not. While no doubt, in one sense,
clauses (a), (b) and (c) of Section 190(1)
are conditions requisite for taking of
cognizance, it is not possible to say that
cognizance on an invalid police report is
21
prohibited and is therefore a nullity. Such
an invalid report may still fall either
under clause (a) or (b) of Section 190(1),
(whether it is the one or the other we
need not pause to consider) and in any
case cognizance so taken is only in the
nature of error in a proceeding
antecedent to the trial. To such a
situation Section 537 of the Code of
Criminal Procedure which is in the
following terms is attracted:
“Subject to the provisions
hereinbefore contained, no
finding, sentence or order
passed by a Court of competent
jurisdiction shall be reversed or
altered on appeal or revision on
account of any error, omission
or irregularity in the complaint,
summons, warrant, charge,
proclamation, order, judgment
or other proceedings before or
during trial or in any enquiry or
other proceedings under this
Code, unless such error,
omission or irregularity, has in
fact occasioned a failure of
justice.”
If, therefore, cognizance is in fact taken,
on a police report vitiated by the breach
of a mandatory provision relating to
investigation, there can be no doubt that
the result of the trial which follows it
cannot be set aside unless the illegality
in the investigation can be shown to
have brought about a miscarriage of
22
justice. That an illegality committed in
the course of investigation does not
affect the competence and the
jurisdiction of the Court for trial is well
settled as appears from the cases
in Prabhu v. Emperor [AIR 1944 Privy
Council 73] and Lumbhardar
Zutshi v. King [AIR 1950 Privy Council
26] . These no doubt relate to the
illegality of arrest in the course of
investigation while we are concerned in
the present cases with the illegality with
reference to the machinery for the
collection of the evidence. This
distinction may have a bearing on the
question of prejudice or miscarriage of
justice, but both the cases clearly show
that invalidity of the investigation has no
relation to the competence of the Court.
We are, therefore, clearly, also, of the
opinion that where the cognizance of the
case has in fact been taken and the case
has proceeded to termination, the
invalidity of the precedent investigation
does not vitiate the result, unless
miscarriage of justice has been caused
thereby.
10. It does not follow, however, that the
invalidity of the investigation is to be
completely ignored by the Court during
trial. When the breach of such a
mandatory provision is brought to the
knowledge of the Court at a sufficiently
early stage, the Court, while not
declining cognizance, will have to take
the necessary steps to get the illegality
23
cured and the defect rectified, by
ordering such reinvestigation as the
circumstances of an individual case may
call for. Such a course is not altogether
outside the contemplation of the scheme
of the Code as appears from Section 202
under which a Magistrate taking
cognizance on a complaint can order
investigation by the police. Nor can it be
said that the adoption of such a course is
outside the scope of the inherent powers
of the Special Judge, who for purposes of
procedure at the trial is virtually in the
position of a Magistrate trying a warrant
case. When the attention of the Court is
called to such an illegality at a very early
stage it would not be fair to the accused
not to obviate the prejudice that may
have been caused thereby, by
appropriate orders, at that stage but to
leave him to the ultimate remedy of
waiting till the conclusion of the trial and
of discharging the somewhat difficult
burden under Section 537 of the Code of
Criminal Procedure of making out that
such an error has in fact occasioned a
failure of justice. It is relevant in this
context to observe that even if the trial
had proceeded to conclusion and the
accused had to make out that there was
in fact a failure of justice as the result of
such an error, explanation to Section 537
of the Code of Criminal Procedure
indicates that the fact of the objection
having been raised at an early stage of
the proceeding is a pertinent factor. To
ignore the breach in such a situation
24
when brought to the notice of the Court
would be virtually to make a dead letter
of the peremptory provision which has
been enacted on grounds of public policy
for the benefit of such an accused. It is
true that the peremptory provision itself
allows an officer of a lower rank to make
the investigation if permitted by the
Magistrate. But this is not any indication
by the Legislature that an investigation
by an officer of a lower rank without
such permission cannot be said to cause
prejudice. When a Magistrate is
approached for granting such permission
he is expected to satisfy himself that
there are good and sufficient reasons for
authorising an officer of a lower rank to
conduct the investigation. The granting
of such permission is not to be treated
by a Magistrate as a mere matter of
routine but it is an exercise of his judicial
discretion having regard to the policy
underlying it. In our opinion, therefore,
when such a breach is brought to the
notice of the Court at an early stage of
the trial the Court have to consider the
nature and extent of the violation and
pass appropriate orders for such
reinvestigation as may be called for,
wholly or partly, and by such officer as it
considers appropriate with reference to
the requirements of Section 5-A of the
Act. It is in the light of the above
considerations that the validity or
otherwise of the objection as to the
violation of Section 5(4) of the Act has to
25
be decided and the course to be adopted
in these proceedings, determined.
19. On perusal thereto, it is clear that the ‘trial flows
cognizance and cognizance is preceded by investigation’,
which is the basic scheme for the Court to cognizable
cases. It is observed that, it does not necessarily follow that
an invalid investigation nullifies the cognizance or trial
based thereon. Then Court proceeded to decide the breach
of mandatory provisions regulating the competence or
procedure of the Court as regards cognizance or trial. In the
said context, in reference to Sections 190 and 537 of
Cr.P.C., the Court said that, for breach of mandatory
provision relating to investigation, it cannot be set-aside
unless the illegality in the investigation can be shown to
have been brought miscarriage of justice as it does not
affect the competence and jurisdiction of trial court. The
Court further observed that, if the breach of mandatory
provision is brought to the knowledge of Court at
sufficiently early stage, the Court while not declining
cognizance will have to take necessary steps to get
illegality cured and the defect rectified by ordering such reinvestigation looking into circumstances of case. If the
26
attention of the Court is called to such illegality at very
early stage, it would be fair to the accused not to obviate
the prejudice that may have been caused thereby, by
passing the appropriate orders at that stage and not leave
him to ultimate remedy of waiting till conclusion of trial.
The Court said that granting of such permission is not to be
taken by Magistrate as a matter of routine but it is in
exercise of his judicial discretion having regard to the policy
underlying it. The Court observed that when such a breach
is brought to the notice of court at early stage of trial, the
Court has to consider the nature and extent of the violation
and pass appropriate order for re-investigation as may be
called for, wholly or partly or whatever is appropriate.
20. It is not out of place to mention that judgments of
Fertico (supra) and H.N. Rishbud (supra) are the cases in
which this Court has dealt with the violation of the
procedure of investigation in the case of cognizable
offences, while in the case at hand, the offence is noncognizable. Therefore, to investigate such an offence, the
order as mandated under Section 155 (2) of Cr.P.C. is
necessary, prior to investigating the offence. It is made
27
clear here that, as per Section 155(2), for non-cognizable
offence, the order is required to be taken from the
Magistrate but in the light of Sections 2(l) and 28 of
POCSO Act, the Special Courts are required to be
designated to deal with offences under POCSO Act and they
have been authorized under Section 33, conferring a power
to such Special Courts to take cognizance. Therefore, the
word used in Section 155(2) be read as “Special Courts” in
place of “Magistrate”, which may take cognizance of any
offence under POCSO Act. Therefore, the procedure of
Section 155(2) is required to be followed in an offence of
POCSO Act under Section 23 which is non-cognizable and
the Special Court is required to look into the procedure
followed in the investigation. The order of taking
cognizance passed by the Special Court after filing the
charge-sheet passed on 19.04.2018, merely reflect that
after perusal of documents as per list which is verified, the
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
28
dated 28.08.2020 with the incorrect notion regarding
overriding effect to the provision of Section 19 of POCSO
Act, confirmed by High Court. In my considered opinion,
the order taking cognizance and to pass consequential
order rejecting the application for discharge is not in
accordance with law. The view taken by this Court in case of
Keshav Lal Thakur (supra) relating to a case of noncognizable offence, is aptly applicable in the facts of the
present case.
21. In view of the above, this appeal is allowed. Order
impugned taking cognizance and consequential orders
passed by the Trial Court which is affirmed by the High
Court are hereby set-aside. The Special Court is at liberty
to follow the procedure prescribed in the matter of
investigation of non-cognizable offences.
…………………………………..J.
(J.K. MAHESHWARI)
NEW DELHI;
MARCH 21, 2022.
29
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 451 OF 2022
(Arising out of SLP (Crl.) No. 8662/2021
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI … Appellant
VERSUS
THE STATE OF KARNATAKA & ORS. … Respondents
O R D E R
Hon’ble Ms. Justice Indira Banerjee pronounced her
judgment dismissing the appeal in terms of the signed reportable
judgment.
Hon’ble Mr. Justice J.K. Maheshwari pronounced a separate
judgment, disagreeing with the view expressed by Hon’ble Ms.
Justice Indira Banerjee and allowed the appeal.
Since the Bench has not been able to agree, the Registry
is directed to forthwith place the matter before Hon’ble the
Chief Justice of India, for assignment before an appropriate
Bench.
………………………………………………………,J.
(Indira Banerjee)
………………………………………………………,J.
(J.K. Maheshwari)
New Delhi;
March 21, 2022.
