Kerala High Court Rules Police Can Investigate Section 23 POCSO Act Cases Without Magistrate’s Approval.

Section 23 of the POCSO Act criminalizes the disclosure of a minor sexual assault victim’s identity. Typically, investigations into cognisable offences—those considered more serious—can commence without prior judicial permission. In contrast, non-cognisable offences generally require magistrate approval before the police can register a case or begin an investigation. The legal debate in this case revolved around whether Section 23 should be classified as cognisable or non-cognisable.

Justice A. Badharudeen, who authored the High Court’s judgment, observed that the POCSO Act does not explicitly categorize its offences as cognisable or non-cognisable. This absence of classification led the judge to conclude that offences under Section 23 can be treated as cognisable. According to the judgment, the police are not restricted from initiating investigations into such cases without seeking a magistrate’s permission. Justice Badharudeen emphasized that Section 33 of the POCSO Act does not impose any specific bar on police officers from conducting investigations on their own initiative (suo motu), and the restrictions under Section 155(2) of the Code of Criminal Procedure (CrPC) do not apply in these circumstances. The court further supported this interpretation by referencing Section 42A of the POCSO Act, which gives the Act overriding effect over other laws.

The court’s ruling comes against the backdrop of a divided opinion by the Supreme Court in the 2022 case of Gangadhar Narayan Nayak v. State of Karnataka. In that case, a Division Bench of the Supreme Court had expressed differing views on whether offences under Section 23 of the POCSO Act require magistrate approval for investigation. Justice Indira Banerjee opined that Section 155 of the CrPC—which mandates magistrate approval for investigating non-cognisable offences—does not apply to Section 23 of the POCSO Act. On the other hand, Justice J.K. Maheshwari disagreed, holding that the offence should be treated as non-cognisable, necessitating judicial permission for investigation. Given this split verdict, the matter was referred to a larger bench of the Supreme Court, where it remains pending.

While acknowledging that the Supreme Court’s final decision on the matter will ultimately settle the issue, the Kerala High Court proceeded to analyze the facts of the case before it, drawing its own conclusions in light of the circumstances. Justice Badharudeen aligned with Justice Banerjee’s interpretation, concluding that the offence under Section 23 could be treated as cognisable and that the police had acted within their authority to investigate without prior judicial approval.

The case in question involved two individuals charged with violating Section 23 of the POCSO Act after they uploaded a video on a YouTube channel named ‘i2i News.’ The video suggested that a child artist from the Malayalam film Aami had been subjected to sexual exploitation. The father of the child artist filed a complaint, alleging that the video disclosed details that could reveal his child’s identity, thereby infringing on the child’s privacy and damaging their reputation. Following the complaint, the police registered an FIR, conducted an investigation, and filed a chargesheet against the accused.

The accused sought to quash the proceedings, arguing that the offences alleged against them were non-cognisable. They contended that since the police had not obtained prior approval from a magistrate before initiating the investigation, the charges were legally unsustainable. Along with Section 23 of the POCSO Act, the accused were also charged under Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). Section 74 of the JJ Act prohibits the disclosure of any information that could reveal the identity of a child in conflict with the law, a child witness, or a child in need of care and protection, particularly in the context of legal proceedings.

After carefully examining the case, the High Court refused to quash the charges under Section 23 of the POCSO Act. The court reasoned that, based on the allegations and the evidence available, a prima facie case existed against the accused, and it was premature to dismiss the charges at this stage. The court held that since the offence was cognisable, the police were justified in initiating the investigation without magistrate approval.

However, the High Court quashed the charge under Section 74 of the JJ Act. The court observed that Section 74 specifically applies to disclosures made during inquiries, investigations, or judicial proceedings. In this case, the video uploaded by the accused did not relate to any ongoing legal process; rather, it was a general disclosure made in a public forum. The court concluded that this did not attract the provisions of Section 74, as the disclosure was not made in the context of any formal legal procedure. “In the instant case, the disclosure is purely general and not made during any enquiry, investigation, or judicial procedure and, therefore, the offence under Section 74 of the JJ Act would not attract, prima facie,” the court noted.

Thus, the High Court partially allowed the petition by the accused. While the charge under Section 74 of the JJ Act was quashed, the criminal proceedings under Section 23 of the POCSO Act will continue. The court’s ruling effectively reinforces the position that police officers can investigate cases of identity disclosure under the POCSO Act without waiting for magistrate approval, at least until the Supreme Court delivers a conclusive verdict on the issue.

The accused were represented by advocates Sooraj T. Elenjickal, Helen P.A., Stephanie Sharon, and Athul Roy, while Public Prosecutor Jibu T.S. appeared on behalf of the State.