Case Note & Summary
The appeal arose from a judgment of the High Court of Karnataka dismissing a criminal petition under Section 482 of the Code of Criminal Procedure, 1973, and upholding cognizance taken against the appellant under Section 23 of the Protection of Children from Sexual Offences Act, 2012. The appellant, an editor, had published a news report in October 2017 naming a 16-year-old sexual harassment victim, leading to a complaint by the victim's mother and police investigation. A chargesheet was filed under Section 173 Cr.P.C., and the Principal District Judge took cognizance in April 2018. The appellant sought discharge under Section 227 Cr.P.C., arguing that Section 23 POCSO is a non-cognizable offence requiring Magistrate permission under Section 155(2) Cr.P.C. for investigation, which was not obtained. The Trial Court dismissed the application, and the High Court upheld it, citing Section 19 POCSO as overriding the Cr.P.C. The Supreme Court considered whether Section 155(2) Cr.P.C. applies to Section 23 POCSO offences and if lack of Magistrate permission bars cognizance. The appellant's counsel argued that Section 4(2) Cr.P.C. makes its provisions applicable to all offences under other laws, subject to specific exclusions, and that Sections 31 and 33(9) POCSO incorporate Cr.P.C. procedures. He cited Keshav Lal Thakur v. State of Bihar to support that investigation without Section 155(2) permission is vitiated. The Court analyzed that Section 23 POCSO, punishable with up to one year imprisonment, is non-cognizable per the Cr.P.C. schedule, and Section 155(2) mandates Magistrate permission for such investigations. It found that Section 19 POCSO, which deals with reporting of offences, does not exclude Cr.P.C. for Section 23, and Sections 31 and 33(9) affirm Cr.P.C. applicability. The Court held that the investigation was illegal due to lack of permission, vitiating the proceedings, and quashed the cognizance order, allowing the appeal.
Headnote
A) Criminal Procedure - Investigation of Non-Cognizable Offences - Section 155(2) Cr.P.C. Applies to POCSO Section 23 - Code of Criminal Procedure, 1973, Section 155(2) - The appellant, an editor, was accused under Section 23 of POCSO for publishing a news report disclosing a child victim's identity. The police investigated without Magistrate permission under Section 155(2) Cr.P.C., as the offence is non-cognizable. The Supreme Court held that Section 155(2) is mandatory and applies to offences under special laws like POCSO unless excluded, and lack of permission vitiates the investigation and subsequent cognizance. (Paras 3, 14-16, 20-21) B) Special Laws - Protection of Children from Sexual Offences Act - Applicability of Cr.P.C. to POCSO Proceedings - Protection of Children from Sexual Offences Act, 2012, Sections 19, 23, 31, 33(9) - The High Court dismissed the appellant's petition under Section 482 Cr.P.C., holding that Section 19 of POCSO overrides the Cr.P.C. The Supreme Court reversed, noting that Section 19 pertains to reporting of offences and does not exclude Cr.P.C. for Section 23 offences, and Sections 31 and 33(9) make Cr.P.C. applicable to POCSO proceedings unless specifically provided otherwise. Held that the Cr.P.C. provisions, including Section 155(2), govern the investigation of Section 23 offences. (Paras 9, 17-19)
Issue of Consideration
Whether Section 155(2) of the Code of Criminal Procedure, 1973 applies to the investigation of an offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012, and whether the Special Court is debarred from taking cognizance due to want of Magistrate permission for investigation
Final Decision
The Supreme Court allowed the appeal, quashed the proceedings against the appellant, and set aside the impugned judgment of the High Court and the cognizance order of the Principal District Judge, holding that the investigation was vitiated due to lack of Magistrate permission under Section 155(2) Cr.P.C.
Law Points
- Section 155(2) of the Code of Criminal Procedure
- 1973 applies to non-cognizable offences under special laws unless specifically excluded
- Section 19 of the Protection of Children from Sexual Offences Act
- 2012 does not override Section 155(2) for offences under Section 23
- Section 31 and Section 33(9) of POCSO make the Cr.P.C. applicable to proceedings before the Special Court
- investigation of a non-cognizable offence without Magistrate permission is vitiated and cognizance cannot be taken
