Gangadhar Narayan Nayak vs State of Karnataka

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

JUDGMENT

Indira Banerjee, J.

Leave granted.

2. This appeal is against a judgment and order dated 17 th

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

Signature Not Verified Act, 2012 (hereinafter referred to as “POCSO”). Digitally signed by Rachna Date: 2022.03.21 16:27:05 IST

3. The short question of law involved in this appeal is, whether Reason:

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 19 th 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 17 th 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 “non- cognizable 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 non- Bailable or non- By what Court cognizable bailable triable If punishable with Cognizable Non-Bailable Court of Session death, imprisonment for life, or imprisonment for more than 7 years.

If punishable with Magistrate of the imprisonment for 3 Ditto Ditto first class years and upwards but not more than 7 years. If punishable with Non-cognizable Bailable Any Magistrate imprisonment for less than 3 years or with fine only.

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 6

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 Bihar1 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 Others2 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

Another3, 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 sub-

sections 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.

19

46. As stated in the Preamble to the Universal Declaration of

Human Rights, adopted by the United Nations on 10 th 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 India5, 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 non-

cognizability; 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 – non-

cognizability; 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 sub-

section (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 non-

cognizable 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 non-

cognizable 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 non-

cognizability, 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 non-

cognizable, 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 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. 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 ‘t rial 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 re-

investigation 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 non-

cognizable. 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 non-

cognizable 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.