Kerala High Court
Sunil Mathew vs State Of Kerala on 30 January, 2025
2025:KER:7448
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 30TH DAY OF JANUARY 2025 / 10TH MAGHA, 1946
CRL.MC NO. 979 OF 2024
CRIME NO.601/2020 OF VATTIYOORKAVU POLICE STATION,
THIRUVANANTHAPURAM
SC NO.1090 OF 2022 OF FAST TRACK SPECIAL COURT,
NEDUMANGAD
PETITIONERS/ACCUSED NOS.1 & 2:
1 SUNIL MATHEW
AGED 44 YEARS
PNRA B-8, GANDHI LANE, PANGAPPARA P.O.,
THIRUVANANTHAPURAM - 695 581
2 DINESHAN NAIR P @ SHANTHIVILA DINESH
AGED 62 YEARS
S/O.PARAMESWARAN PILLAI, AKSHARA, SHANTHIVILA,
NEMOM P.O., THIRUVANANTHAPRAM ., PIN - 695020
BY ADVS.
SOORAJ T.ELENJICKAL
HELEN P.A.
STEPHANIE SHARON
ATHUL ROY
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA ( CRIME NO.601/2020 OF VATTIYOORKAVU POLICE
STATION, THIRUVANANTHAPURAM DISTRICT), PIN - 682031
2 XXXXXXXXXX
XXXXXXXXXX
R1 BY PUBLIC PROSECUTOR SRI.JIBU T.S.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
6.1.2025, THE COURT ON 30.01.2025, PASSED THE FOLLOWING:
Crl.M.C.No.979/ 2024 2
2025:KER:7448
"C.R"
A. BADHARUDEEN, J.
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Crl.M.C.No.979 of 2024
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Dated this the 30th day of January, 2025
ORDER
Accused Nos.1 and 2 in S.C.No.1090/2022 on the files of Special Court under the Protection of Children from Sexual Offences Act (`POCSO Act' for short) Offences, Nedumangad, have filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure (`Cr.P.C' for short) to quash Annexure-I final report in Crime No.601/2020 of Vattiyurkavu Police Station, Thiruvananthapuram District, and all further proceedings thereof.
2. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. Perused the records. Even though notice was served upon the 2nd respondent, no appearance. Crl.M.C.No.979/ 2024 3
2025:KER:7448
3. Here the prosecution alleges commission of offences punishable under Sections 23(1), 23(3) and 23(4) of the POCSO Act and Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (`JJ Act' for short), by the accused who are the petitioners herein.
4. The prosecution case in a nut shell is that the accused persons, two in numbers, shared common intention to lower the reputation of the child victim, used their mobile phones' contents and video graphed conversations which would give an impression that the children who acted in `Aamy' film had been sexually exploited by the director of the film with specific reference to the child victim who had played the key role of the childhood of a famous writer in the film and the accused persons uploaded the video in social media news channel. It is alleged that the said acts of the accused had the effect of lowering the reputation of the child victim and infringing upon her privacy and that the accused Crl.M.C.No.979/ 2024 4 2025:KER:7448 persons thereby have made themselves liable for the said offences. The police started investigation on the basis of a petition submitted by the father of the de-facto complainant and submitted final report against the petitioners. The learned jurisdictional Special Court (under the POCSO Act), Thiruvananthapuram, took cognizance upon the said final report for the said offences as against the petitioners.
5. While canvassing quashment of the entire proceedings, the learned counsel for the petitioners raised two fold contentions. The first contention raised is that, on the facts of the case, none of the offences would attract, prima facie, and, therefore, the entire proceedings would require quashment. The second contention raised is that offence under Section 74 of the JJ Act is a non cognizable offence as per Section 86(3) of the JJ Act and, therefore, the police officer is not empowered to register crime and investigate the same without the order of a Magistrate. He also Crl.M.C.No.979/ 2024 5 2025:KER:7448 raised a contention that offences under Sections 23(1), 23(3) and 23(4) of the POCSO Act also are not cognizable offences. Therefore, the police has no authority to register crime and to investigate the same. Therefore, for the said reason alone, the entire proceedings would require quashment.
6. As far as the second contention raised by the learned counsel for the petitioners is concerned, it is submitted by the learned Additional Director General of Prosecution (`ADGP' for short) that, in view of Section 33(1) of POCSO Act, a Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts. So, insofar as the offence under the POCSO Act is concerned, a Special Court is empowered to take cognizance of any offence on receipt of a complaint of facts which constitute such offence or upon a police report of such fact. In view of the above, police Crl.M.C.No.979/ 2024 6 2025:KER:7448 officer is specifically empowered to register and investigate all offences under the POCSO Act, where Section 155(2) of Cr.P.C has no application.
7. Before answering the second contention, I am inclined to consider the first contention. In the instant case, crime was registered based on the statement of the victim. According to the victim, she acted the childhood of `Mm' (pseudo name) in the film "Aami" in response to an advertisement by e-mail. Thereafter, while she was studying for Plus Two course, during the month of May, 2020, when she searched for the film "Aami" in YouTube, she noticed in `i2i news' in the suggestion list, where the 2 nd accused made an interview about the Director of the film `Sri Kk' (pseudo name) and also the victim in a bad manner. According to the victim, in the YouTube video, the victim and her mother were ashamed and their identity was disclosed. Similar statement as that of the mother and father of the victim was recorded by the police. Crl.M.C.No.979/ 2024 7
2025:KER:7448 The allegation in the charge is as under:
"ഈ ആമിയുടെ കുട്ടിക്കാലം ചിത്രീകരിച്ച
രംഗത്തിലുണ്ടായിരുന്ന കുറെ കുട്ടികൾ ഉണ്ടായിരുന്നുവല്ലോ,
അതിലേതോ പ്രായപൂർത്തിയാവാത്ത കുട്ടിയേയും
പ്രായപൂർത്തിയായിയെന്നു വേണമെങ്കിൽ പറയാവുന്ന ഒരു
കുട്ടിയേയും ലൈംഗികമായി ഈ സംവിധായകൻ പീഡിപ്പിച്ചു."
8. Now the question poses for consideration is whether offences under Sections 23(1), 23(3) and 23(4) of the POCSO Act are made out, prima facie? Similarly, whether an offence under Section 74 of of the JJ Act is made out, prima facie? In this connection, I am inclined to refer statutory provisions in the configuration of Sections 23(1), 23(3) and 23(4) of the POCSO Act and Section 74 of the JJ Act, which are extracted as hereunder:
"Section 23 of the POCSO Act: 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 of lowering his reputation or infringing upon his privacy. Crl.M.C.No.979/ 2024 8
2025:KER:7448 xxxxxx (3)The publisher or owner of the media or studio or 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 shall not be less than six months but which may extend to one year or with fine or with both.
xxxx xxxx xxxx "Section 74 of the JJ Act: Prohibition on disclosure of identity of children : (1) No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or 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, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published:
Provided that 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.Crl.M.C.No.979/ 2024 9
2025:KER:7448 (2) The Police shall not disclose any record of the child for the purpose of character certificate or otherwise in the pending case or in the case which has been closed or disposed of. (3) Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to two lakh rupees or both."
9. According to the learned counsel for the petitioners, by making a general statement against a group of children, it could not be presumed or inferred that the statement pertains to a particular child or the defacto complainant. Therefore, from the above statement, none of the offences could be found, prima facie. It is pointed out that what has been published in the news channel is only an interview on the basis of the news item widely circulated among various news broadcasting sources, regarding a lawyer notice, containing factual narration of sexual assault upon a female cini artist by the director of the film `Aami', sent on behalf of a child, who alleged sexual assault. at the instance of the said Crl.M.C.No.979/ 2024 10 2025:KER:7448 director. Annexures II are the copies of news items in this matter published by various news channels. According to the learned counsel for the petitioners, Annexure-III legal notice was issued on behalf of one Mr.XXX to the controversial director regarding the sexual molestation at the instance of the director and thereby seeking apology. It is submitted that anyhow consequent to Annexure-III, no further steps were taken by Ms.XXX. Presumably, the matter might have been settled in between herself and the director. The petitioner's counsel also relied on Annexure- IV, copy of a petition filed by a public spirited lawyer to the police regarding the issue. The sum and substance of the argument of the learned counsel for the petitioners is that, matters being so, the interview stated to have been published, wherefrom the prosecution case emanated, is based upon authentic and genuine facts already under circulation and there is no allegation whatsoever in the police report that the news broadcasted by the interview board is one Crl.M.C.No.979/ 2024 11 2025:KER:7448 based upon any bogus materials and untrue facts. Further, the disputed subject in no way disclosed the identity of the defacto complainant in particular. Therefore, no offence would attract.
10. The learned ADGP strongly opposed this contention and produced the pen-drive along with case diary to establish the ingredients to see commission of the offences by the petitioners herein.
11. As per Section 23(1) of the POCSO Act, making any report or presenting comments to any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering a child's reputation or infringing upon the privacy of the child, is an offence. As per Section 23(3), the publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee. Section 23(4) is the penal provision for the offences under Sections 23(1) to (3) and Crl.M.C.No.979/ 2024 12 2025:KER:7448 the same provides punishment not less than six months and may extend to one year or with fine or with both.
12. So, the crucial question to be considered in the instant case is whether the accused herein made any report or presented any comments about the defacto complainant in a media without having complete and authentic information thereby lowered the reputation of the defacto complainant, and thereby accused 1 and 2 are liable to be prosecuted, for the offences under Section 23(1), 23(3) and 23(4) of the POCSO Act?
13. As per Annexure-II, there were public response from various women empowered groups in the matter of hesitation in proceeding against the controversial director in relation to the alleged sexual assault at his instance and there is reference regarding Annexure-III notice also. In Annexure-II there is reference regarding molestation of a young actress, who acted in the film "Aami" at the instance of the controversial director. But in Crl.M.C.No.979/ 2024 13 2025:KER:7448 Annexure-II, there is no reference regarding molestation of the defacto complainant in particular. Thus the materials available in no way suggest that the disputed interview and allegation affecting the defacto complainant were made on the basis of any complete or authentic information. If so, prima facie, the inference is that the accused persons presented comment, as extracted above, during an interview in a media without having complete and authentic information and thereby lowered the reputation and infringed upon the privacy of the minor girl, who was referred as the actor, who acted the childhood of Mm. Going by the allegations in the charge, there is specific mention that there was molestation against a minor girl, though generally it was stated that there were children acted in the film "Aami".
14. Viewing the factual aspects as divulged within the bound of the statutory provisions, it could not be held at this stage that, prima facie, offence under Sections 23(1), 23(3) and 23(4) of Crl.M.C.No.979/ 2024 14 2025:KER:7448 the POCSO Act would not attract in the facts of this particular case.
15. Coming to Section 74 of the JJ Act, no report in any news paper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or 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, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published. So, what is prohibited under Section 74 of the JJ Act is disclosure of the name, address or school or any other particular, which may lead to the identification of the 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 enquiry or investigation or judicial procedure. Comment to Section 74 of the JJ Act states that for reasons to be recorded in writing, the Board or Committee, as the Crl.M.C.No.979/ 2024 15 2025:KER:7448 case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child. Thus it becomes visible that enquiry or investigation or judicial procedure are the substrata where from such disclosure would arise, in order to bring home an offence under Section 74 of the JJ Act. 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.
15. Coming back to the first question, whether offence under Section 23 of the POCSO Act is cognizable or non- cognizable and also whether investigation of the offence under Section 23 of the POCSO Act would require the procedure contemplated under Section 155(2) of Cr.P.C, in the decision reported in [2022 KHC 6230 : 2022 (2) KLT OnLine 1004 : 2022 (12) SCC 72 : 2022 SCC OnLine SC 337], Gangadhar Narayan Crl.M.C.No.979/ 2024 16 2025:KER:7448 Nayak @ Gangadhar Hiregutti v. State of Karnataka, 2 Judges of the Apex Court delivered split verdict and accordingly the matter was referred to a larger Bench. Thus the decision of the larger Bench in this regard would become final as regards to this question. If the view expressed by the Hon'ble Mrs.Justice J.K.Maheswari is accepted, the entire proceedings herein is liable to be quashed. However, if the view taken by the Honourable Mrs.Justice Indira Banerjee is taken into consideration, the proceedings herein could not be quashed. Anyhow, a logical conclusion of this lis is necessary. Therefore, it is necessary to decide the case based on available materials after addressing the provisions of law. As pointed out by the learned ADGP, as per Section 33, the Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts. That apart, Section 42A of the Act provides as under: Crl.M.C.No.979/ 2024 17
2025:KER:7448 "The Act not in derogation of any other law:- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency."
Thus in case of inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency. It is true that as provided under Section 155(2) of Cr.P.C, no police officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or commit the case for trial. But the said provision would apply to specifically mentioned non-cognizable offences. 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 Crl.M.C.No.979/ 2024 18 2025:KER:7448 POCSO Act to be held as cognizable read along with Sections 33 and 42A of the POCSO Act. Therefore, on the said ground also, the quashment prayer would not succeed.
16. Holding so, this petition is allowed in part. Prosecution for the offence punishable under Section 74 of the JJ Act stands quashed; while dismissing the prayer to quash prosecution for the offences punishable under Sections 23(1), 23(3) and 23(4) of the POCSO Act.
17. The interim order of stay stands vacated. Registry shall forward a copy of this order to the jurisdictional court for information and further steps.
Sd/-
(A.BADHARUDEEN, JUDGE) rtr/ Crl.M.C.No.979/ 2024 19 2025:KER:7448 APPENDIX OF CRL.MC 979/2024 PETITIONERS' ANNEXURES Annexure 1 THE CERTIFIED COPY OF THE FINAL REPORT SUBMITTED IN CRIME NO.601/2020 OF VATTIYOORKAVU POLICE STATION DATED 24.3.2022 Annexure II TRUE COPIES OF THE NEWS ITEMS IN THE RELEVANT MATTER PUBLISHED BY VARIOUS NEWS CHANNELS Annexure III TRUE COPY OF THE LAWYER NOTICE SENT TO THE SUSPECTED DIRECTOR ON BEHALF OF ANOTHER CHILD WHICH FORMS THE BASIS FOR THE NEWS DATED 26.4.2019 Annexure IV TRUE COPY OF A PETITION FILED BY A PUBLIC SPIRITED LAWYER TO THE POLICE REGARDING THE ISSUE DATED 6.5.2020 Annexure V TRUE COPY OF THE PETITION IN S.C.NO.1090/2022 BEFORE THE COURT BELOW DATED NIL Annexure VI TRUE COPY OF THE ORDER DATED 03.01.2024 OF THE SPECIAL COURT IN CRL.M.P.NO.225 OF 2023 IN S.C.NO.1090/2022 RESPONDENTS' ANNEXURES : NIL