Police can investigate Section 23 POCSO Act case without magistrate approval: Kerala High Court

The Kerala High Court recently opined that the offence of revealing a minor sexual assault victim's identity under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) can be investigated by the police without waiting for a magistrate's approval to start the probe..Usually serious crimes, classified as cognisable offences, can be investigated without awaiting such approval. On the other hand, cases involving non-cognisable offences can be registered and investigated only after getting a magistrate's approval. .Justice A Badharudeen observed that the POCSO Act does not classify the offences under it into cognisable or non-cognisable offences. He took this to mean that the offence under Section 23, POCSO Act can be treated as a cognisable one, which can be investigated by the police without seeking a magistrate's approval first. "In the POCSO Act, there is no classification as to cognizable or non- cognizable offences and reading Section 33, there is no specific bar for the police officer to investigate a crime suo motu, where Section 155(2) of Cr.P.C. has no application. In such view of the matter, I am of the view that the offence punishable under Section 23 of the POCSO Act to be held as cognizable read along with Sections 33 and 42A of the POCSO Act," the Court held..Notably, a Division Bench of the Supreme Court had delivered a split opinion on this issue in 2022 in the case of Gangadhar Narayan Nayak vs State of Karnataka. Justice Indira Banerjee opined that Section 155 of the Code of Criminal Procedure (CrPC), which deals with the investigation of "non-cognisable" offences after getting magistrate approval, does not apply to Section 23 of the POCSO Act. Justice JK Maheshwari disagreed, holding Section 23 should be treated as a non-cognisable offence, meaning that a magistrate's approval is necessary to investigate such cases, as laid down in Section 155 of the CrPC (now replaced by BNSS). .The Kerala High Court acknowledged that the Supreme Court is yet to take a final call on this issue after the matter was referred to a larger Bench. "The decision of the larger Bench in this regard would become final as regards to this question," Justice Badharudeen added. However, he also observed that the case before him required a logical conclusion. Therefore, he analysed the issue against the background of the facts and circumstances in the instant case and ultimately agreed with the view taken by Justice Banerjee. .The High Court passed the ruling while refusing to quash a Section 23, POCSO Act charge against two persons accused of uploading a video on on a YouTube channel named 'i2i news', to suggest that a child artist in the Malayalam film 'Aami' was sexually exploited.The father of the child artist filed a complaint, alleging that the two accused violated the child's privacy and lowered the child's reputation by divulging details that led the identification of the child's identity. After a chargesheet was filed against the two accused, they moved the High Court with a plea to quash the case. They argued that the offences alleged against them were non-cognisable and could not have been investigated without getting a magistrate's approval first. They were booked under two charges, namely one under Section 23 of the POCSO Act and Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).Section 74 of the JJ Act prohibits the media from disclosing the name, address, school or any other detail that could reveal the identity of a child in conflict with the law, or a child witness or a child in need of care and protection, while reporting on any inquiry, investigation or judicial procedure..The Court refused to quash the Section 23, POCSO Act after taking the view that it was a cognisable offence which could be investigated by the police without awaiting a magistrate's approval. The Court added that based on the available allegations and evidence, it was not possible to conclusively rule out a prima facie case against the accused under Section 23, POCSO Act at this stage..However, it quashed the charge under Section 74 of the JJ Act. The Court noted that this provision only punished the disclosure of a child's identity while reporting on an inquiry, investigation or judicial procedure. The Court observed that the disclosure made by the accused in their video was more general in nature. "In the instant case, the disclosure is purely general and not made during any enquiry, investigation and judicial procedure and, therefore, the offence under Section 74 of the JJ Act would not attract, prima facie," the Court said. Therefore, it partly allowed the plea by the accused by quashing the Section 74, JJ Act charge. The criminal proceedings for the charge under Section 23, POCSO Act will continue..The accused were represented by advocates Sooraj T Elenjickal, Helen P A, Stephanie Sharon, and Athul Roy.Public Prosecutor Jibu TS appeared for the State.