Case Title: Gangadhar Narayan Nayak v. State of Karnataka [Criminal Appeal 451 of 2022]
A bench of Justices Indira Banerjee and JK Maheshwari delivered a split verdict on the question of whether permission from a magistrate is needed by the police to probe the offence of revealing a victim’s identity under Section 23 of the Protection of Children from Sexual Offences (POCSO) Act.
While Justice Banerjee answered the questions in the negative, Justice Maheshwari took a different stance.
Justice Banerjee noted that had the legislature intended for the Code of Criminal Procedure (CrPC) to apply to the investigation of an offence under Section 23 of POCSO, it would specifically have provided so.
“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,” Justice Banerjee observed.
On the other hand, 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.
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,” Justice Maheshwari noted in his order.
Source: Barandbench
