Allowing the appeal, Justice Maheshwari noted that when a cognizable offence is committed, the officer in-charge of a police station is competent to make an arrest without a magistrate’s order. However, in non-cognizable offences, the police has no authority to arrest without a warrant obtained by an order of the court.
While it is not clear which offences under the POCSO Act are cognizable or non-cognizable, the court takes the assistance from the provisions of CrPC on the said issue, his judgment stated. In this light, it was noted,
“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 CrPC.”
Relying on a few judgments, Justice Maheshwari opined,
“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 CrPC, in absence of having any provision in special enactment, the CrPC would apply.”
Source: Barandbench
