Source: Supreme Court

Why in News?

Recently, the Supreme Court observed that the entire purpose of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is to ensure that the identity of the child is not disclosed unless the Special Court for reasons to be recorded in writing permits such disclosure.

• The aforesaid observation was made in the case of Utpal Mandal @ Utpal Mondal v. The State of West Bengal & Anr.

What was the Background of Utpal Mandal @ Utpal Mondal v. The State of West Bengal & Anr. Case?

• Before the Supreme Court, a Special Leave Petition (SLP) was filed by the petitioner against impugned final judgment and order passed by the High Court at Calcutta.
• By way of this SLP, the petitioner was seeking anticipatory bail.
• After considering the submissions advanced by learned counsel for the petitioner and after going through the material available on record, the Court is of the view that the petitioner does not deserve indulgence of anticipatory bail.
• However, before closing the matter, the Court observed that the mandatory requirements of Section 33(7) of the POCSO Act and Section 228A of the Indian Penal Code, 1860 (IPC) have not been followed in this case.

What were the Court’s Observations?

• The Bench comprising of Justices Sandeep Mehta and PB Varale observed that the identity of the child should not be disclosed unless the Special Court, for reasons to be recorded in writing permits such disclosure.
• The Court directed that an exercise of sensitization of judicial officers as well as the police officers is required to be undertaken in the State of West Bengal so as to ensure strict compliance of this mandatory requirement.
• The Supreme Court relied on the judgment given in the case of Nipun Saxena v. Union of India reported in (2019).
• In this case it was held that the disclosure of the identity can be permitted by the Special Court only when the same is in the interest of the child and in no other circumstances. Thus, the disclosure of the name of the child to make the child a symbol of protest cannot normally be treated to be in the interest of the child.

What are the Relevant Legal Provisions Involved in it?

POCSO Act

• This Act was passed in 2012 under the Ministry of Women and Child Development.
• It is a comprehensive piece of legislation designed to protect children from crimes including sexual assault, sexual harassment, and pornography.
• It is gender neutral act and considers welfare of the child as a matter of paramount importance.
• It provides for the establishment of Special Courts for trial of such offences and related matters and incidents.
• Death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault was introduced in this act by the POCSO amendment bill, 2019.
• Under Section 2(1) (d) of the POCSO Act, a child is defined as any person below the age of 18 years.

Section 33(7) of the POCSO Act

• Section 33 of this Act deals with the procedure and powers of the Special Court.
• Sub-section 7 of Section 33 states that the Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial.
• Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
• For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighborhood or any other information by which the identity of the child may be revealed.

Section 228A of IPC

• This Section deals with the disclosure of identity of the victim of certain offences, etc. It states that—

(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is—

(a) By or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or

(b) By, or with the authorization in writing of, the victim; or

(c) Where the victim is dead or minor or of unsound mind, by, or with the authorization in writing of, the next of kin of the victim.

Provided that no such authorization shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognized welfare institution or organization.

Explanation. —For the purposes of this sub-section, “recognized welfare institution or organization” means a social welfare institution or organization recognized in this behalf by the Central or State Government.

(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

Explanation. —The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.