Supreme Court bench split on prosecuting publisher who identified sexual abuse victim without magistrate nod

The Supreme Court on Monday pronounced a split judgement on an issue of whether a publisher of the identity of a child sexual abuse victim can be prosecuted without an order from the magistrate, since it is a non-cognisable offence.

A bench of justices Indira Banerjee and JK Maheshwari disagreed with each other on an appeal filed by Gangadhar Narayan Nayak alias Gangadhar Hiregutti, editor of Karavali Munjavu newspaper. He filed an appeal against the Karnataka High Court's September 17, 2021 order that dismissed his plea for discharge for the offence of disclosing identity of a 16-year-old victim.

The matter has now been directed to be placed before the Chief Justice of India for setting up a larger bench to decide the issue.

Senior advocate Devadatt Kamat and advocate Nishanth Patil, appearing for the petitioner, contended Section 23 of the Protection of Children from Sexual Offences (POCSO) Act, which prohibited publishing the name of the victim, was a non-cognisable offence and cannot be investigated without an order from the magistrate as mandated under Section 155 of the Criminal Procedure Code.

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In her judgement, Banerjee dismissed the plea, saying, she is unable to accept the argument 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. "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 empathising with the victim, people start finding fault with the victim. The victim is ridiculed, defamed, gossiped about, and even ostracised," she said.

Justice Maheshwari, for his part, said the orders taking cognisance and rejecting the application for discharge are not in accordance with law. He said the procedure of Section 155(2) of the CrPC is required to be followed in an offence of the POCSO Act under Section 23 which is non-cognisable and the special court is required to look into the procedure followed in the investigation.

Justice Banerjee said every child has the inalienable human right to live with dignity, grow up and develop in an atmosphere conducive to mental and physical health. She should be treated with equality and not be discriminated against. "The inalienable rights of a child include the right to protection of privacy. The Constitution guarantees the inalienable and basic rights to all, including children," she said.

Justice Banerjee referred to provisions such as Section 228A of the IPC, 327(2) of the CrPC, Section 74 of the Juvenile Justice Act and Section 23 of POCSO, among others, saying the entire object is to prevent disclosure of the identity of the victim, which should not be discernible from any matter published in the media.

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