# GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. STATE OF KARNATAKA & ORS

- **Citation:** [2022] 2 S.C.R. 925
- **Court:** Supreme Court of India
- **Decided:** 2022-03-21
- **Case number:** Criminal Appeal No. 451 of 2022
- **Bench:** Indira Banerjee, J. K. Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gangadhar-narayan-nayak-gangadhar-hiregutti-v-state-of-karnataka-ors-35887
- **Pages:** 36

## Headnote

Protection of Children from Sexual Offences Act, 2012: s.23
- Applicability of s.155(2) of Code of Criminal Procedure Code to
the investigation of an offence u/s.23 of POCSO Act - Per Indira
Baneerjee, J. - 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]
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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
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and mental agony has to be strictly enforced. The provision cannot
be allowed to be diluted. Hence, a child against whom off

## Text

_Characters 0–39,922 of 80,939. This is a partial read: ask again with offset=39922 for what follows._

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[2022] 2 S.C.R. 925
925
GANGADHAR NARAYAN NAYAK @ GANGADHAR
HIREGUTTI
v.
STATE OF KARNATAKA & ORS.
(Criminal Appeal No. 451 of 2022)
MARCH 21, 2022
[INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
Protection of Children from Sexual Offences Act, 2012: s.23
- Applicability of s.155(2) of Code of Criminal Procedure Code to
the investigation of an offence u/s.23 of POCSO Act - Per Indira
Baneerjee, J. - 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]
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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
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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 subsection (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]
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v.
STATE OF KARNATAKA & ORS.
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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.
Rajiv Chaudhary v. State (NCT) of Delhi AIR 2001 SC
2369 : [2001] 3 SCR 508; Rakesh Kumar Paul v. State
of Assam (2017) 15 SCC 67 : [2017] 8 SCR 785 -
referred to.
Case Law Reference
Per INDIRA BANEERJEE, J.
[1996] 7 Suppl. SCR 578
distinguished
Para 20
[2011] 15 SCR 540
referred to
Para 22
(2021) 2 SCC 525
referred to
Para 27
(1955) 1 SCR 1150
referred to
Para 28
[2018] 14 SCR 75
relied on
Para 53
Per J.K MAHESHWARI, J.
[2001] 3 SCR 508
referred to
Para 14
[2017] 8 SCR 785
referred to
Para 14
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[1996] 7 Suppl. SCR 578
relied on
Para 17
(2021) 2 SCC 525
relied on
Para 17
[2011] 15 SCR 540
relied on
Para 17
[1955] 1 SCR 1150
relied on
Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
451 of 2022
From the Judgment and Order dated 17.09.2021 of the High Court
of Karnataka at Dharwad Bench in Criminal Petition No.101420 of 2020.
Devadatt Kamat, Sr. Adv., Nishanth Patil, Rajesh Inamdar, Javedur
Rahman, Ms. Malvika Kala, Advs. for the Appellant.
Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal,
Advs. for the Respondents.
The Judgments of the Court were delivered by
INDIRA BANERJEE, J.
1. 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
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.
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v.
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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 subsection (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."
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
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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.
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:
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v.
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]
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"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"
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 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.
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(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 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,
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v.
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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.
(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..."
1 (1996) 11 SCC 557
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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 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
2 (2011) 14 SCC 770
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v.
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]
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[(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.
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.
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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."
3 (2021) 2 SCC 525
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v.
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]
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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 H. N.Rishbud
and Others v. State of Delhi4. 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 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.
4 (1955) 1 SCR 1150
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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."
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.
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v.
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(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 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
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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.
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
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v.
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]
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under POCSO, as if it were a Court of Sessions "as far as may be",in
accordance with the procedure 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
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.
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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.
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.