The Supreme Court on Monday issued a split judgment on whether a publisher of the identity of a child sexual abuse victim can be prosecuted without a magistrate’s order, as it is a non-punishable offense .
A bench of judges Indira Banerjee and JK Maheshwari disagreed on an appeal filed by Gangadhar Narayan Nayak aka Gangadhar Hiregutti, editor of Karavali Munjavu newspaper. He appealed against the September 17, 2021 order of the Karnataka High Court which dismissed his plea of dismissal for the offense of disclosing the identity of a 16-year-old victim.
The case has now been directed to go to the Chief Justice of India for the establishment of a wider bench to decide the matter.
Lead Attorney Devadatt Kamat and Attorney Nishanth Patil, representing the petitioner, argued that Section 23 of the Protection of Children from Sexual Offenses Act (POCSO), which prohibited publication of the victim’s name, was an unrecognizable offense and cannot be investigated without a magistrate’s order in accordance with Article 155 of the Code of Criminal Procedure.
Read also – Identity of rape victims cannot be disclosed: SC
In her judgment, Banerjee rejected the plea, saying she could not accept the argument that the proceedings were flawed and subject to reversal or that the appellant was subject to release without trial, solely on the basis of the absence of prior authorization from the judicial magistrate. to investigate the alleged violation. “In our society, victims of sexual offenses are more often than not treated as accomplices, even as perpetrators of the crime, even though the victim may be absolutely innocent. Instead of identifying with the victim, people begin to criticize the victim. The victim is ridiculed, defamed, gossiped about and even ostracized,” she said.
Judge Maheshwari, for his part, said the orders taking cognizance and denying the request for release are not in accordance with the law. He stated that the procedure of Section 155(2) of the CrPC must be followed in a breach of the POCSO Act under Section 23 which is not recognizable and that the special tribunal is required to consider the procedure followed in the investigation.
Justice Banerjee said every child has the inalienable human right to live with dignity, to grow and develop in an atmosphere conducive to mental and physical health. She must be treated on an equal footing and not be discriminated against. “A child’s inalienable rights include the right to privacy. The Constitution guarantees inalienable and fundamental rights to everyone, including children,” she said.
Judge Banerjee referred to provisions such as IPC Section 228A, CrPC Section 327(2), Juvenile Justice Act Section 74 and POCSO Section 23 , among others, claiming that the main objective is to prevent the disclosure of the victim’s identity, which should not be noticeable from any material published in the media.
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