Holding

The Supreme Court held that for a non‑cognizable offence under Section 23 of the POCSO Act, the investigation must comply with Section 155(2) of the CrPC, and the Special Court must scrutinise the procedure followed, leading to the appeal being allowed and the order of cognizance set aside, pending referral to a larger bench.

Summary

The appellant, an editor, published a news report disclosing the name of a 16‑year‑old girl who was a victim of sexual harassment, leading to a complaint under Section 23 of the Protection of Children from Sexual Offences Act (POCSO). The police investigated, filed a charge‑sheet and the Special Court took cognizance, after which the appellant sought discharge on the ground that Section 23 is a non‑cognizable offence and, under Section 155(2) of the Code of Criminal Procedure (CrPC), investigation required prior magistrate’s permission. The High Court held that Section 19 of POCSO, with its non‑obstante clause, overrides the CrPC, and dismissed the petition. The Supreme Court was divided: Justice Indira Banerjee opined that Sections 4(1), 4(2) and 5 of the CrPC make all offences, including those under POCSO, subject to the CrPC unless a special law expressly excludes it, and therefore the investigation must follow CrPC provisions; Justice J.K. Maheshwari disagreed, holding that Section 19 overrides the CrPC and that a non‑cognizable offence under Section 23 requires compliance with Section 155(2) before investigation, leading to the appeal being allowed. The matter was referred to a larger bench for resolution.

Issues considered

Whether Section 155(2) of the CrPC applies to the investigation of an offence under Section 23 of the POCSO Act.
Whether Section 19 of the POCSO Act, by its non‑obstante clause, overrides the procedural provisions of the CrPC.
Whether a Special Court is barred from taking cognizance of an offence under Section 23 of POCSO without a magistrate’s prior permission.
Whether offences under the POCSO Act, specifically Section 23, are cognizable or non‑cognizable.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 155(2), s. 156, s. 157, s. 190, s. 4(1), s. 4(2), s. 5, s. 537
Indian Penal Code, 1860s. 228A
Juvenile Justice (Care and Protection of Children) Act, 2015s. 74
Protection of Children from Sexual Offences Act, 2012s. 19, s. 23, s. 31, s. 33(9)

Subjects

POCSO ActSection 23non‑cognizable offenceSection 155(2) CrPCSpecial Courtchild privacymedia disclosurecognizabilityprocedural law

Judgment

[2022] 2 S.C.R. 925 925

GANGADHAR NARAYAN NAYAK @ GANGADHAR A
HIREGUTTI
v.
STATE OF KARNATAKA & ORS.
(Criminal Appeal No. 451 of 2022) B
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
C
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 D
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.
E
Referring the matter to larger bench (in view of difference
of opinion), the Court
HELD:
Per INDIRA BANEERJEE, J.
F
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 G
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]

H
925
926 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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
B
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
C 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
D
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]
E 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”
F 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
G 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
H
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 927
STATE OF KARNATAKA & ORS.

and mental agony has to be strictly enforced. The provision cannot A
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,
B
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. C
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 D
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 E
POCSO Act also do not specify how and in what manner the
investigation on reporting of commission of offence under sub-
section (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. F
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 G
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]

H
928 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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.
B
[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
C 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
D (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 –
E referred to.
Case Law Reference
Per INDIRA BANEERJEE, J.
[1996] 7 Suppl. SCR 578 distinguished Para 20
F [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
G Per J.K MAHESHWARI, J.
[2001] 3 SCR 508 referred to Para 14
[2017] 8 SCR 785 referred to Para 14

H
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 929
STATE OF KARNATAKA & ORS.

[1996] 7 Suppl. SCR 578 relied on Para 17 A
(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. B
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. C
Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal,
Advs. for the Respondents.
The Judgments of the Court were delivered by
INDIRA BANERJEE, J.
D
1. Leave granted.
2. This appeal is against a judgment and order dated 17 th
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
E
(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 F
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 G
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.
H
930 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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
B 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:
C 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
D 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
E 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
F 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
G 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
H investigated the offence without obtaining an order of the Magistrate
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 931
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]

under Section 155(2) of the Cr.P.C. The Trial Court dismissed the A
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 B
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 C
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 D
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.
E
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. F
(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.”
G
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:
H
932 SUPREME COURT REPORTS [2022] 2 S.C.R.

A “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”

B

C

D

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
E 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:
F “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
G 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
H case or commit the case for trial.
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 933
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]

(3) Any police officer receiving such order may exercise the A
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 B
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 C
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
D
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 E
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 F
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
G
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, H
934 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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.”
B 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
C 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
D 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
E 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:
F “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,
G
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
H (1996) 11 SCC 557
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 935
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]

21. Mr. Kamat argued that in Keshav Lal Thakur (supra) the A
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
B
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 C
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.
D
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 E
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, F
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 G
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 H
936 SUPREME COURT REPORTS [2022] 2 S.C.R.

A [(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
B 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
C 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
D 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
E 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
F 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
G 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.
H
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 937
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]

27. Mr. Padhi cited Fertico Marketing and Investment Private A
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 B
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 C
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] D
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 E
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 F
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
G
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 H
938 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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
B
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
C 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
D 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.”
E 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
F 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
G 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
H (1955) 1 SCR 1150
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 939
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]

31. Unlike Section 4(1) of the Cr.P.C., which requires all offences A
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
B
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 C
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 D
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, E
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. F

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
G
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. H
940 SUPREME COURT REPORTS [2022] 2 S.C.R.

A (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
B 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.
C (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
D 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
E
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
F
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
G purpose of sub-section (1).”
35. The language and tenor of Section 19 of POCSO and sub-
sections 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
H
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 941
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]

person who has apprehension that an offence under this Act is likely to A
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.
B
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 C
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 D
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 E
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.
F
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 G
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 H
942 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 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
B 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.
C
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.
D
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.
E
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.
F 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
G 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.
H
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 943
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]

44. The entire object of provisions such as Section 228A of the A
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 B
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 C
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 D
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, E
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 F
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. The right to live with dignity, the right to personal
liberty, the right to privacy, the right to equality and/or the right against
discrimination, the right against exploitation, are Fundamental Rights G
guaranteed by Part III of the Constitution of India.
50. The Directive Principles of State Policy and in particular Article
39(f) casts an obligation on the State to ensure that children are given
opportunities and facilities to develop in a healthy manner and in conditions
of freedom and dignity and that childhood and youth are protected against H
944 SUPREME COURT REPORTS [2022] 2 S.C.R.

A exploitation and against moral and material abandonment. For the full
and harmonious development of his or her personality, the child should
grow up in an atmosphere of happiness, love and understanding and be
brought up in the spirit of peace, dignity, tolerance, freedom, equality and
solidarity.
B 51. The United Nations Convention on the Rights of the Child,
ratified by India on 11th December 1992, was based on the basic principles,
inter alia, of non-discrimination against a child, the best interest of the
child, the right of a child to survival and development. The Convention
on the Rights of the Child also requires States to undertake all appropriate
national, bilateral and multilateral measures to prevent exploitation of
C children. POCSO not only protects children from sexual offences but
also protects the interests of children in general, as victims as well as
witnesses. The right of a child to dignity not only requires that the child
be protected from offences of sexual assault, sexual harassment and
pornography but also requires that the dignity of a child be safeguarded.
D Disclosure of the identity of a child who is a victim of sexual offences or
who is in conflict with the law is in fundamental breach of the right of
the child to dignity, the right not to be embarrassed.
52. Article 16 of the Convention on the Rights of the Child provides
that no child shall be subjected to arbitrary or unlawful interference with
E his or her privacy. The child has the right to the protection of the law
against such interference. India has ratified the Convention on the Rights
of the Child. 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 and mental agony has to be strictly enforced.
F The provision cannot be allowed to be diluted.
53. In Nipun Saxena v. Union of India5, this Court held:-
“38. No doubt, it is the duty of the media to report every crime
which is committed. The media can do this without disclosing
G the name and identity of the victim in case of rape and sexual
offences against children. The media not only has the right
but an obligation to report all such cases. However, media
should be cautious not to sensationalise the same. The media
should refrain from talking to the victim because every time
5
H 2019 (2) SCC 703
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 945
STATE OF KARNATAKA & ORS. [INDIRA BANERJEE, J. ]

the victim repeats the tale of misery, the victim again undergoes A
the trauma which he/she has gone through. Reportage of such
cases should be done sensitively keeping the best interest of
the victims, both adult and children, in mind. Sensationalising
such cases may garner television rating points (TRPs) but
does no credit to the credibility of the media.”
B
54. In Nipun Saxena (supra), this Court directed: -
“50. In view of the aforesaid discussion, we issue the
following directions:
50.1. No person can print or publish in print, electronic, social
media, etc. the name of the victim or even in a remote manner C
disclose any facts which can lead to the victim being identified
and which should make her identity known to the public at
large.”
55. The judgment of this Court in Keshav Lal Thakur (supra) is
clearly distinguishable, in that this Court was dealing with investigation D
into an offence under Section 31 of the Representation of People Act,
1950. The Representation of People Act, 1950 does not contain any
provision regulating the manner or place of investigation, or inquiry into
any crime, or otherwise dealing with any offence under the said Act.
56. There can be no dispute with the proposition of law laid down E
in paragraphs 107 to 111 of Davindar Pal Singh Bhullar (supra) cited
by Mr. Kamat. In this case for the reasons discussed above, it cannot be
said that the impugned order of the Special Court taking cognizance of
the complaint against the Appellant suffers from any such illegality that
strikes at the root of the said order. The legal maxim “sublato F
fundamento cadit opus” is not attracted.
57. Mr. Kamat’s argument that Section 19 of POCSO does not
include offence under Section 23 of POCSO is unsustainable in law and
not supported by any cogent reasons. As observed above, the words
“offence under this Act” in Section 19(1) of POCSO makes it clear that
G
Section 19 includes all offences under POCSO including offence under
Section 23 of POCSO. It is reiterated at the cost of repetition that 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. H
946 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 58. I am unable to accept the argument of the Appellant that the
proceedings were vitiated and liable to be quashed or the Appellant was
liable to be discharged without trial, only because of want of prior
permission of the jurisdictional Magistrate to investigate into the alleged
offence. The Appellant would have to defend the proceedings initiated
against him under Section 23 of the POCSO on merits.
B
59. For the reasons discussed above, I do not find any infirmity
with the impugned judgment and order of the High Court which calls for
interference by this Court. The appeal is, accordingly, dismissed.

C
J. K. MAHESHWARI, J.
I have the benefit of going through the opinion of my esteemed
sister Justice Indira Banerjee, however I am unable to agree to the view
taken in the judgment for the reasons to follow.
D 2. Leave granted.
3. The facts as succinctly stated in the order and on perusal of
those, the first core question that arises is that “In absence of any
classification provided in the Protection of Children from Sexual
Offences Act, 2021 (in short POCSO Act) regarding offences being
E cognizable or non-cognizable, can all the offences under the Act
may be categorized as cognizable in view of the non-obstante clause
specified under Section 19 of POCSO Act?”. The another question is
“Whether Section 19 of the POCSO Act have overriding effect to
the provisions of Cr.P.C., in particular Chapter 12 titled as
F ‘Information to the police and their powers to investigate’ in the
context of the provision of Section 4 and 5 of Cr.P.C.?”. The last
question is “In the case at hand, by virtue of mandate of Section
4(2) of Cr.P.C., in absence of having any provision in Special
Enactment i.e. POCSO Act for investigation, to try an offence under
Section 23 of POCSO Act, the mandate of Section 155(2) of Cr.P.C.
G shall be required to be followed ?”
4. Before adverting to answer the aforesaid questions, the
backdrop of the issue in the instant appeal is described here. As per
allegations, the appellant allegedly committed an offence under Section
23 of POCSO Act for disclosing the identity of the victim. Mother of the
H
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 947
STATE OF KARNATAKA & ORS. [J. K. MAHESHWARI, J.]

victim lodged the complaint on 30.10.2017 against the appellant. The A
matter was reported by the police to the Special Court. Thereafter,
investigation was completed and challan was filed on 31.12.2017. The
Special Court in-turn took cognizance on 19.04.2018. The appellant then
moved an application for discharge before the Special Court, which was
rejected vide order dated 28.08.2020. The order taking cognizance and
B
consequential proceedings were assailed by the appellant in a petition
under Section 482 of Cr.P.C. before the High Court seeking quashment
inter-alia on the ground that offence under Section 23 of POCSO Act
being non-cognizable, investigation conducted by police authorities without
the order of the magistrate as mandated in Section 155(2) of the Cr.P.C
and filing the challan, completing investigation vitiates trial, and all the C
proceedings deserve to be quashed.
5. The Special Court while rejecting the application for discharge
observed that in view of Section 19 of POCSO Act, all offences under
the Act are cognizable after taking guidance by the judgment of Delhi
High Court in the case of Santosh Kumar Mandal vs. State,2016 SCC D
OnLine Del 5378. It was held the police have power to register the case
and investigate without obtaining permission from the magistrate. The
Court also observed that sufficient material is available against the
appellant to frame charge under Section 23 of POCSO Act and directed
to frame the charges.
E
6. The High Court by the impugned order held that Section 19 of
POCSO Act provides for reporting of offence and does not classify
cognizable or non-cognizable offence. It is said, sub-section (1) of Section
19 of POCSO Act starts with ‘non-obstante’ clause which overrides the
provisions contained under Sections 154 and 155 of Cr.P.C. However,
F
the provisions of Sections 154 and 155 of Cr.P.C. are specifically excluded
from application to the provisions of the POCSO Act. Therefore, obtaining
the order from the Magistrate under Section 155(2) of Cr.P.C. to
investigate a non-cognizable case is not necessary.
7. All the aforesaid questions are interlinked to each other,
G
therefore, it is being adverted commonly. In this respect, POCSO Act
does not clarify regarding cognizable and non-cognizable offences.
However, the definition of the cognizable and non-cognizable offence
under Sections 2(c) and 2(l) of Cr.P.C. may be relevant and quoted for
ready reference –
H
948 SUPREME COURT REPORTS [2022] 2 S.C.R.

A 2. Definitions. — In this Code, unless the context otherwise
requires —
**
(c) “cognizable offence” means an offence for which, and
“cognizable case” means a case in which, a police officer
B may, in accordance with the First Schedule or under any other
law for the time being in force, arrest without warrant;
**
(l) “non-cognizable offence” means an offence for which,
C and “non-cognizable case” means a case in which, a police
officer has no authority to arrest without warrant;
8. On perusal of the aforesaid, it is clear that on commission of
the cognizable offence, a police officer may in accordance with First
Schedule of Cr.P.C. or under any other law may arrest the accused
D without warrant. While in a non-cognizable offence, a police officer
has no authority to arrest without warrant obtained by an order of the
Court.
9. The First Schedule of Cr.P.C. provides for classification of
offence which is in two parts. Part first of the said Schedule specify
punishment; cognizability or non-cognizability; bailable or non-bailable;
E
and triable by which court. Part second of First Schedule deals with
the offences committed under any other law and specify the description
of the offences; cognizability – non-cognizability; bailable – non-
bailable; and triable by which Court. In para 14 of the judgment above,
part second of the First Schedule has been quoted. We can take
F advantage of it and on perusal of the same, it is clear that the sentence
with imprisonment for less than 3 year or with fine if prescribed in that
law, then commission of such offence under any other laws will be
non-cognizable, bailable and triable by any magistrate. In the present
case, an offence under Section 23 of POCSO Act has been allegedly
committed in contravention of sub-sections (1) and (2) thereof, which
G
is punishable with imprisonment for a period not less than 6 months but
it may extend to 1 year or with fine or with both. Under the POSCO
Act, it is not clear all the offences under the said Act are cognizable or
some are non-cognizable. However, the Court may have to take the
assistance from the provisions of Cr.P.C. on the said issue. In this
H regard, Section 4 of Cr.P.C. quoted in para 13 of the judgment above
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 949
STATE OF KARNATAKA & ORS. [J. K. MAHESHWARI, J.]

can be profitably looked into. As per sub-section 1 of Section 4 of A
Cr.P.C., trial of offences under Indian Penal Code, and as per sub-
section (2) of Section 4 of Cr.P.C. under any other laws shall be
investigated enquired into, tried and otherwise dealt with as specified
in sub-section (1), subject to any enactment for the time being in force
regulating the manner or place of investigating, enquiring into, trying or
B
otherwise dealing with such offences. Section 5 of Cr.P.C. is a
‘savings’ clause whereby the procedure prescribed in any special or
local law for the time being in force shall remain unaffected from the
procedure provided in Cr.P.C. 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. 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 Cr.P.C.
10. As per the findings recorded by Special Court as well the
High Court, the shelter of Section 19 of POCSO Act has been taken D
relying upon the judgment of Delhi High Court in the case of Santosh
Kumar Mandal (supra). However, the scope, context, applicability of
Section 19 of POCSO Act after the said judgment is required to be
seen, and to find out whether special enactment deals with investigation
after reporting. In para 36 of the judgment above, Section 19 has been
quoted which is part of Chapter V of the POCSO Act and provide a E
procedure for ‘reporting’ of the cases. It says that ‘when any person
including the child has apprehension that an offence under the POCSO
Act is likely to be committed or has knowledge of commission of the
offence, he shall provide such information to the Special Juvenile Police
Unit (in short “SJPU”) or local police. On reporting the offence under F
the Act, every such report shall be ascribed an entry number and be
recorded in writing; after reading over to the informant; and shall be
entered in a book to be kept by the Police Unit. Sub-section (2)
prescribes a procedure for ascribing the report made under sub-section
(1). As per sub-section (3) , while ascribing the report, it should be in
simple language so the child can understand its contents being recorded G
as it is. As per sub-section (4), if necessary, the translator/interpreter
may be provided to the child. Looking to the language of sub-sections
(3) and (4), it clearly applies in a case where the report has been
lodged by the child and not by the family members. Section 19(5)(6)
prescribes special procedure on reporting to the SJPU or local police, H
950 SUPREME COURT REPORTS [2022] 2 S.C.R.

A and also cast duty on them that if child is in need of care and protection,
after recording the reasons in writing, immediate arrangements of such
care and protection including admitting the child into shelter home or
nearest hospital within 24 hours of report, ought to have been made.
Simultaneously, they are supposed to report the matter to the Child
Welfare Committee, (in short “CWC”) and also to the Special Court
B
or the Court of Sessions, as the case may be. Sub-section (7) confers
protection on a person reporting such offence under sub-section (1) in
good faith.
11. Looking to the language of Section 19, it does not specify all
the offences under the POCSO Act are cognizable. Simultaneously either
C
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 sub-section (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.
D 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. In
contrast, Chapter XII of Cr.P.C. deals with investigation also after
receiving information in a cognizable or non-cognizable offences. The
E power of investigation has been given to the police officer as per Section
156 and the said officer shall make the investigation following the
procedure as prescribed under Section 157 in case of cognizable
offences. In non-cognizable offences, the information may be recorded
under Section 155(1) of Cr.P.C. by an officer in-charge of a police
station within whose limit the offence is committed. He shall enter the
F substance of information in a book to be kept by such officer in such
form as State Government may prescribe in this behalf, and shall refer
the informant to the Magistrate having power to try such case. The
said Magistrate may pass an order for investigation which shall be
abided by the police officer and shall exercise the same power except
G the power of arrest without warrant, as he may exercise in investigation
of cognizable offences. Otherwise, in a non-cognizable offence, the
police officer is not supposed to investigate without the order of Court.
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
H
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 951
STATE OF KARNATAKA & ORS. [J. K. MAHESHWARI, J.]

prescribed in Cr.P.C. ought to be followed in the matter of investigation A
enquiring into and trial. Section (5) of Cr.P.C. is a saving clause by which
the procedure prescribed in the special enactment will prevail otherwise
in absence of the provision and the procedure specified in Cr.P.C. may
be applicable.
12. After the discussion to the basic provisions of Cr.P.C. and B
POCSO Act, the order passed by the Trial Court, relying upon the
judgment of Delhi High Court in the case of Santosh Kumar Mandal
(supra) in paragraph 10 is required to be examined. On perusal of the
said judgment of Delhi High Court, it reveals Hon’ble Single Judge made
a sweeping observation while dealing with the case of Section 12 in C
reference to Section 19 and said all the offences punishable under the
POCSO Act are cognizable in nature. The said observation does not
appear to be in consonance to the language of Section 19 of POCSO
Act. After perusal of the facts and findings of the said case, it is suffice
to say that the Delhi High Court dealt with a case in which the sentence
extendable up to three years was there and weighed with the principle D
that the sentence maximum so prescribed can be looked into to decide
the cognizability or non-cognizability. Therefore, under the said impression,
the observation made by the High Court that all the offences under the
POCSO Act are cognizable, which, in my opinion, can not be said to be
correct view. E
13. The matter with respect to cognizability or non-cognizability,
the Division Bench judgment of Rajasthan High Court in Criminal
Reference No. 1 of 2020, titled Nathu Ram & Ors. vs. State of
Rajasthan & Anr., 2021(1) RLW 211 may be relevant, wherein the
question posed for answer was as under: F
“What would be the nature of an offence (whether cognizable or
non-cognizable) for which imprisonment “may extend to three
years” is provided and no stipulation is made in the statute regarding
it being cognizable/non-cognizable.”
G
14. The High Court, considering all the provisions and also the
judgments of this Court in the cases of Rajiv Chaudhary vs. State
(NCT) of Delhi, AIR 2001 SC 2369 and Rakesh Kumar Paul vs.
State of Assam, (2017) 15 SCC 67, has answered the reference as
under:
H
952 SUPREME COURT REPORTS [2022] 2 S.C.R.

A “21. … …. … … … …
Thus, the classification made as aforesaid, for determination of
nature of offence whether it is cognizable or non-cognizable, the
maximum punishment that may be awarded for particular offence,
is relevant and not the minimum sentence.
B
25. Accordingly, the reference is answered in terms that unless
otherwise provided under the relevant statute, the offences under
the laws other than IPC punishable with imprisonment to the extent
of three years, shall fall within the classification II of offences
classified under Part II of First Schedule and thus, shall be
C cognizable and non-bailable. Consequently, the offence under
Section 91(6)(a) of the Act of 1956 shall be cognizable and non-
bailable.”
15. Thus, as per the discussion made hereinabove, it is to conclude
that the Delhi High Court’s judgment of Santosh Kumar Mandal (supra)
D deals with an offence of Section 12 wherein maximum sentence
prescribed was extendable up to 3 years, however the said offence was
found cognizable. It is to state that the observation made in the said
judgment that all offences under POCSO Act are cognizable, is in my
humble opinion not justified without taking note of the provisions of Cr.P.C.
It is true that to decide the cognizability and non-cognizability, the
E maximum sentence prescribed for the offence would be taken into
consideration, but if the sentence prescribed for the offence is less than
3 years then those offences of POCSO Act would be non-cognizable. It
is clarified, Section 19 of the POCSO Act overrides the provisions of
Cr.P.C. only to the extent of reporting the matters to the police or SJPU
F and other ancillary points so specified in Section 19.
16. As per above discussion, 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
G 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.
17. In the said context, it is required to be seen, what may be the
mode of investigation as per the provisions of Cr.P.C. in non-cognizable
cases. As per Chapter XII of Cr.P.C., under Section 154, the F.I.R. in a
H cognizable offence may be registered by the in-charge of the police
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 953
STATE OF KARNATAKA & ORS. [J. K. MAHESHWARI, J.]

station and reduce so in writing. Section 155 prescribes the information A
as to non-cognizable cases and manner of investigation of such cases.
Section 156 provides the power to investigate a cognizable case to a
police officer while Section 157 specifies a procedure for investigation.
On perusal thereto, it is apparent that the officer in-charge of the police
station is having power to investigate any cognizable case without the
B
order of the Magistrate and while investigating the same, he shall
forthwith report the same to the Magistrate who is having power to
take cognizance of such offence and he may also relegate the said
investigation as prescribed in the Cr.P.C. or as per the notification
issued by the State Government. Therefore, it is clear that in the cases
where the commission of cognizable offence is there, the officer in- C
charge of the police station is competent without the order of Magistrate,
but in case of non-cognizable offences, after taking the report, the
officer in-charge shall refer the informant to the Magistrate as per
section 155(1). The language of Section 155(2) makes it clear and in
terms it is mandatory that no police officer shall investigate a non-
D
cognizable case without the order of the Magistrate. Therefore, the
said provision is mandatory and required to be complied with prior to
investigating a non-cognizable offence. Learned counsel for the
appellant has placed reliance on the judgment of this Court in Keshav
Lal Thakur vs. State of Bihar, (1996) 11 SCC 557. In the said case,
offence under Section 31 of Representation of People’s Act, 1950, E
was alleged to have been committed. After investigation, a final report
was submitted praying for discharge by police on which Magistrate
took cognizance, which was challenged before High Court under
Section 482 and the petition was dismissed, which was assailed before
this Court. This Court observed as thus:
F
“3. We need not go into the question whether in the facts of
the instant case the above view of the High Court is proper
or not for the impugned proceeding has got to be quashed as
neither the police was entitled to investigate into the offence
in question nor the Chief Judicial Magistrate to take
cognizance upon the report submitted on completion of such G
investigation. 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 Cr.P.C. Of course, the police is entitled to
investigate into a non-cognizable offence pursuant to an order H
954 SUPREME COURT REPORTS [2022] 2 S.C.R.

A of a competent Magistrate under Section 155 (2) Cr.P.C., 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. While on
this point, it may be mentioned that in view of the explanation
B
to Section 2(d) Cr.P.C., which defines ‘complaint’, the police
is entitled to submit, after investigation, a report a relating to
a non-cognizable offence in which case such a report is to be
treated as a ’complaint’ of the police officer concerned, but
that explanation will not be available to the prosecution here
C as that related to a case where the police initiates investigation
into a cognizable offence – unlike the present one – but
ultimately finds that only a non-cognizable offence has been
made out.
On perusal of the said, it is clear that the view taken by High
D Court upholding the order taking cognizance by Magistrate was not found
justified on the ground that the police was not entitled to investigate into
the offence and upon such a report of the police officer taking cognizance
after completion of investigation by the Magistrate was also not justified.
The Court observed that the offence being non-cognizable, the police is
entitled to investigate such offence pursuant to an order of competent
E Magistrate specified under Section 155(2) of Cr.P.C. But admittedly, no
such order was passed in the case, therefore, this Court said that the
recourse as taken is not justified and quashed the impugned proceedings.
Learned counsel distinguishing the judgment of Fertico Marketing and
Investment Private Limited & Ors. vs. Central Bureau of
F Investigation & Anr., (2021) 2 SCC 525, has relied upon the judgment
of State of Punjab vs. Davinder Pal Singh Bhullar, (2011) 14 SCC
770to contend that if initial action itself is illegal, all subsequent actions
emanating from that act are also a nullity, however, prayed for quashment
of proceedings.
G 18. Per contra, learned counsel for the respondent State relied
upon the judgment of Fertico (supra) to contend that seeking consent of
the State Government under Section 6 of Delhi Special Police
Establishment Act, 1946 to investigate the offence, if not taken would
not be an impediment to vitiate the trial unless there is a miscarriage of
justice. After perusal of the said judgment, it is revealed that the said
H
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 955
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judgment relies upon the judgment of 3-Judge bench of this Court in A
H.N. Rishbud & Inder Singh vs. State of Delhi, AIR 1955 SC 196
wherein paras 9 and 10 embark upon the niceties of the law relating to
the said issue and those are reproduced as thus:
“9. The question then requires to be considered whether and
to what extent the trial which follows such investigation is B
vitiated. Now, trial follows cognizance and cognizance is
preceded by investigation. This is undoubtedly the basic
scheme of the Code in respect of cognizable cases. But it does
not necessarily follow that an invalid investigation nullifies
the cognizance or trial based thereon. Here we are not
concerned with the effect of the breach of a mandatory C
provision regulating the competence or procedure of the Court
as regards cognizance or trial. It is only with reference to
such a breach that the question as to whether it constitutes
an illegality vitiating the proceedings or a mere irregularity
arises. A defect or illegality in investigation, however serious, D
has no direct bearing on the competence or the procedure
relating to cognizance or trial. No doubt a police report which
results from an investigation is provided in Section 190 of the
Code of Criminal Procedure as the material on which
cognizance is taken. But it cannot be maintained that a valid
and legal police report is the foundation of the jurisdiction E
of the Court to take cognizance. Section 190 of the Code of
Criminal Procedure is one out of a group of sections under
the heading “Conditions requisite for initiation of
proceedings”. The language of this section is in marked
contrast with that of the other sections of the group under the F
same heading i.e. Sections 193 and 195 to 199. These latter
sections regulate the competence of the Court and bar its
jurisdiction in certain cases excepting in compliance therewith.
But Section 190 does not. While no doubt, in one sense, clauses
(a), (b) and (c) of Section 190(1) are conditions requisite for
taking of cognizance, it is not possible to say that cognizance G
on an invalid police report is prohibited and is therefore a
nullity. Such an invalid report may still fall either under clause
(a) or (b) of Section 190(1), (whether it is the one or the
other we need not pause to consider) and in any case
cognizance so taken is only in the nature of error in a H
956 SUPREME COURT REPORTS [2022] 2 S.C.R.

A proceeding antecedent to the trial. To such a situation Section
537 of the Code of Criminal Procedure which is in the
following terms is attracted:
“Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a Court of competent
B jurisdiction shall be reversed or altered on appeal or
revision on account of any error, omission or irregularity
in the complaint, summons, warrant, charge, proclamation,
order, judgment or other proceedings before or during trial
or in any enquiry or other proceedings under this Code,
unless such error, omission or irregularity, has in fact
C occasioned a failure of justice.”
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
D 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 Prabhu v. Emperor [AIR 1944 Privy
E Council 73] and Lumbhardar Zutshi v. King [AIR 1950 Privy
Council 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
F 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,
G the invalidity of the precedent investigation does not vitiate
the result, unless miscarriage of justice has been caused
thereby.
10. It does not follow, however, that the invalidity of the
investigation is to be completely ignored by the Court during
H trial. When the breach of such a mandatory provision is
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 957
STATE OF KARNATAKA & ORS. [J. K. MAHESHWARI, J.]

brought to the knowledge of the Court at a sufficiently early A
stage, the Court, while not declining cognizance, will have to
take the necessary steps to get the illegality cured and the
defect rectified, by ordering such reinvestigation as the
circumstances of an individual case may call for. Such a course
is not altogether outside the contemplation of the scheme of
B
the Code as appears from Section 202 under which a
Magistrate taking cognizance on a complaint can order
investigation by the police. Nor can it be said that the
adoption of such a course is outside the scope of the inherent
powers of the Special Judge, who for purposes of procedure
at the trial is virtually in the position of a Magistrate trying C
a warrant case. When the attention of the Court is called to
such an illegality at a very early stage it would not be fair
to the accused not to obviate the prejudice that may have
been caused thereby, by appropriate orders, at that stage
but to leave him to the ultimate remedy of waiting till the
D
conclusion of the trial and of discharging the somewhat
difficult burden under Section 537 of the Code of Criminal
Procedure of making out that such an error has in fact
occasioned a failure of justice. It is relevant in this context
to observe that even if the trial had proceeded to conclusion
and the accused had to make out that there was in fact a E
failure of justice as the result of such an error, explanation
to Section 537 of the Code of Criminal Procedure indicates
that the fact of the objection having been raised at an early
stage of the proceeding is a pertinent factor. To ignore the
breach in such a situation when brought to the notice of the
F
Court would be virtually to make a dead letter of the
peremptory provision which has been enacted on grounds
of public policy for the benefit of such an accused. It is true
that the peremptory provision itself allows an officer of a
lower rank to make the investigation if permitted by the
Magistrate. But this is not any indication by the Legislature G
that an investigation by an officer of a lower rank without
such permission cannot be said to cause prejudice. When a
Magistrate is approached for granting such permission he
is expected to satisfy himself that there are good and
sufficient reasons for authorising an officer of a lower rank
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958 SUPREME COURT REPORTS [2022] 2 S.C.R.

A to conduct the investigation. The granting of such permission
is not to be treated by a Magistrate as a mere matter of routine
but it is an exercise of his judicial discretion having regard to
the policy underlying it. In our opinion, therefore, when such
a breach is brought to the notice of the Court at an early
stage of the trial the Court have to consider the nature and
B
extent of the violation and pass appropriate orders for such
reinvestigation as may be called for, wholly or partly, and by
such officer as it considers appropriate with reference to the
requirements of Section 5-A of the Act. It is in the light of the
above considerations that the validity or otherwise of the
C objection as to the violation of Section 5(4) of the Act has to
be decided and the course to be adopted in these proceedings,
determined.
19. On perusal thereto, it is clear that the ‘trial flows cognizance
and cognizance is preceded by investigation’, which is the basic
D scheme for the Court to cognizable cases. It is observed that, it does not
necessarily follow that an invalid investigation nullifies the cognizance or
trial based thereon. Then Court proceeded to decide the breach of
mandatory provisions regulating the competence or procedure of the
Court as regards cognizance or trial. In the said context, in reference to
Sections 190 and 537 of Cr.P.C., the Court said that, for breach of
E mandatory provision relating to investigation, it cannot be set-aside unless
the illegality in the investigation can be shown to have been brought
miscarriage of justice as it does not affect the competence and jurisdiction
of trial court. The Court further observed that, if the breach of mandatory
provision is brought to the knowledge of Court at sufficiently early stage,
F the Court while not declining cognizance will have to take necessary
steps to get illegality cured and the defect rectified by ordering such re-
investigation looking into circumstances of case. If the attention of the
Court is called to such illegality at very early stage, it would be fair to the
accused not to obviate the prejudice that may have been caused thereby,
by passing the appropriate orders at that stage and not leave him to
G ultimate remedy of waiting till conclusion of trial. The Court said that
granting of such permission is not to be taken by Magistrate as a matter
of routine but it is in exercise of his judicial discretion having regard to
the policy underlying it. The Court observed that when such a breach is
brought to the notice of court at early stage of trial, the Court has to
H consider the nature and extent of the violation and pass appropriate order
GANGADHAR NARAYAN NAYAK @ GANGADHAR HIREGUTTI v. 959
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for re-investigation as may be called for, wholly or partly or whatever is A
appropriate.
20. It is not out of place to mention that judgments of Fertico
(supra) and H.N. Rishbud (supra) are the cases in which this Court has
dealt with the violation of the procedure of investigation in the case of
cognizable offences, while in the case at hand, the offence is non- B
cognizable. Therefore, to investigate such an offence, the order as
mandated under Section 155 (2) of Cr.P.C. is necessary, prior to
investigating the offence. It is made clear here that, as per Section
155(2), for non-cognizable offence, the order is required to be taken
from the Magistrate but in the light of Sections 2(l) and 28 of POCSO
Act, the Special Courts are required to be designated to deal with C
offences under POCSO Act and they have been authorized under
Section 33, conferring a power to such Special Courts to take
cognizance. Therefore, the word used in Section 155(2) be read as
“Special Courts” in place of “Magistrate”, which may take cognizance
of any offence under POCSO Act. Therefore, the procedure of Section D
155(2) is required to be followed in an offence of POCSO Act under
Section 23 which is non-cognizable and the Special Court is required
to look into the procedure followed in the investigation. The order of
taking cognizance passed by the Special Court after filing the charge-
sheet passed on 19.04.2018, merely reflect that after perusal of
documents as per list which is verified, the Court has taken cognizance. E
The Court has not looked into the vital aspect of following the procedure
of Section 155(2) of Cr.P.C. Therefore, at the earliest when the
application for discharge was filed, it was dismissed by order impugned
dated 28.08.2020 with the incorrect notion regarding overriding effect
to the provision of Section 19 of POCSO Act, confirmed by High Court. F
In my considered opinion, the order taking cognizance and to pass
consequential order rejecting the application for discharge is not in
accordance with law. The view taken by this Court in case of Keshav
Lal Thakur (supra) relating to a case of non-cognizable offence, is
aptly applicable in the facts of the present case.
G
21. 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.
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960 SUPREME COURT REPORTS [2022] 2 S.C.R.

A ORDER
Hon’ble Ms. Justice Indira Banerjee pronounced her judgment
dismissing the appeal in terms of the signed reportable judgment.
Hon’ble Mr. Justice J.K. Maheshwari pronounced a separate
judgment, disagreeing with the view expressed by Hon’ble Ms. Justice
B 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.

C
Devika Gujral Matter referred to larger Bench.

D

E

F

G

H