GANGADHAR NARAYAN NAYAK @ … V. THE STATE OF KARNATAKA ON 21 MARCH, 2022

GANGADHAR NARAYAN NAYAK @ … V. THE STATE OF KARNATAKA ON 21 MARCH, 2022

FACTS OF THE CASE

The above mentioned case in the filled in the form of appeal against Judgement and order dated 17 th  September 2021 passed by High Court of Karnataka dismissing the petition No. 101420/2020 filled by appellant under Section 482 of the Code of Criminal Procedure .Under   Section 23  of the Protection of Children from Sexual Offence  appeal is filled in the case.

 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. .

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.

 (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 sub-section (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.”

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. 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 19 th 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. 

 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 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.

ISSUES:

[1]  Section 155(2) of the Cr .P. C. applies to the investigation of an offence under Section 23 of POCSO?

[2] 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?

ARGUMENTS:

When the case was scheduled for hearing the issue was formulated by cited Judgement which were related to case by the Knowledgeable Lawyers . 

 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.

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.

On the side that is from the respondent that is a State of Karnataka  that arguments were as submitted from that side.  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

 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.

The above mentioned are the arguments submitted by both the sides in the case these were considered and Judgement was passed by the bench on these basis.

JUDGEMENT : 

 The following Judgement was passed in the case by the Hon’ble bench keeping in mind all the law mentioned in the respective statue .

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 ArConstitution of India guarantees the aforesaid inalienable and basic rights to all, including children. The right to live with dignity, the right to personal liberty, the right to Privacy are the type of Fundamental rights mentioned in Part 3 of the constitution of India.

 In view of the above, this appeal is allowed. Order impugned taking cognizance and consequential orders passed by the Trial Court which is affirmed by the High Court are hereby  set-aside. The Special Court is at liberty to follow the procedure prescribed in the matter of investigation of non-cognizable offences.

 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. This is the judgement passed by the bench.

REFERENCE:

[1]https://indiakanoon.com 

This Article is written by Sukhman Kapoor of Panjab University Chandigarh , Intern at Legal Vidhiya .

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