GANGADHAR NARAYAN NAYAK @ GANGADHAR v. STATE OF KARNATAKA & Ors.

Judgment

– Procedure under Cr.P.C is not required to be followed as the offence u/s.23 of POCSO Act which has been committed, by disclosure of the identity of victim, necessitates expeditious investigation for compliance of sub-sections (5) and (6) of s.19 of POCSO – Per J.K Maheshwari, J. – Procedure of s.155(2) Cr.P.C is required to be followed in an offence of POCSO Act u/s.23 which is non-cognizable and special Court is required to look into the procedure followed in the investigation – Held: In view of difference of opinion, matter referred to larger bench – Code of Criminal Procedure Code, 1973 – ss.155(2), 4, 5. Referring the matter to larger bench (in view of difference of opinion), the Court HELD: Per INDIRA BANEERJEE, J.

1. 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. [Para 33][939-E-F] 925 A B C D E F G H 926 SUPREME COURT REPORTS [2022] 2 S.C.R.

2. 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. 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. [Paras 35, 36][940-G-H; 941-A-D]

3. 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. [Para 39][942-B-C]

4. 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. 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 A B C D E F G H GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. STATE OF KARNATAKA & ORS. 927 and mental agony has to be strictly enforced. The provision cannot be allowed to be diluted. Hence, 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. [Paras 44, 52, 57][943-A-B; 944-E-F; 945-G-H] Nipun Saxena v. Union of India 2019 (2) SCC 703 : [2018] 14 SCR 75 – relied on. Keshav Lal Thakur v. State of Bihar (1996) 11 SCC 557 : [1996] 7 Suppl. SCR 578 – distinguished. State of Punjab v. Davinder Pal Singh Bhullar and Others (2011) 14 SCC 770 : [2011] 15 SCR 540; Fertico Marketing and Investment Private Limited and Others v. Central Bureau of Investigation and Another (2021) 2 SCC 525; H. N. Rishbud and Others v. State of Delhi (1955) 1 SCR 1150 – referred to. Per J. K MAHESHWARI, J.

1. 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 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. 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. [Para 11][950-C-E, G-H; 951-A] A B C D E F G H 928 SUPREME COURT REPORTS [2022] 2 S.C.R. A B C D E

2. 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 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. [Para 16][952-F-G] Santosh Kumar Mandal v. State 2016 SCC Online Del 5378; Nathu Ram & Ors. v. State of Rajasthan & Anr. 2021(1) RLW 211; Fertico Marketing and Investment Private Limited and Others v. Central Bureau of Investigation and Another (2021) 2 SCC 525; State of Punjab v. Davinder Pal Singh Bhullar and Others (2011) 14 SCC 770 : [2011] 15 SCR 540; H.N. Rishbud & Inder Singh v. State of Delhi AIR 1955 SC 196 : [1955] 1 SCR 1150; Keshav Lal Thakur v. State of Bihar (1996) 11 SCC 557 : [1996] 7 Suppl. SCR 578 – relied on.

ORDER 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. Devika Gujral Matter referred to larger Bench. A B C D E F G H