round Ext.P15 order passed by the Commission for Protection
of Child Rights. The question to be decided is whether it
suffers from any manner of illegality or arbitrariness enabling
this Court to interfere with the same. The paramount
contention advanced by learned counsel for the petitioner is
that the petitioner has made the post in the face book which
contained the name of the child with bonafide and good
intentions. The intention of the petitioner was to book the real
culprit, who is a teacher in the school in question. It is also
stated that the name of the child is contained in Exts.P7 and
P8 and P9, which were received by the petitioner under the RTI
Act, and therefore mere posting of the same will not amount to
the offence under Sec.23 of the POCSO Act. Therefore,
essence of the issue is dependent on Sec.23 of POCSO Act,
which reads as follows:
"23. 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.
(2) No reports in any media shall disclose, the
identity of a child including his name, address,
photograph, family details, school, neighbourhood or
any other particulars which may lead to disclosure of
identity of the child:
Provided that for reasons to be recorded in
writing, the Special Court, competent to try the case
under the Act, may permit such disclosure, if in its
opinion such disclosure is in the interest of the child.
(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 of which shall not be less than six months but
which may extend to one year or with fine or with
both".
10. On an evaluation of Sec.23, it is unequivocally clear,
a prohibition is made under sub-section (1) thereto, by which,
no person shall make any report or 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. Further, as per sub-section (2), no reports in any
media shall disclose the identity of a child including his name,
address, photograph, family details, school etc. etc.
Therefore, the intention under Sec.23 is very clear that the
victim child shall not be exposed to any sort of publication so
as to affect her future and damn her career. In my considered
opinion, in order to constitute an offence under sub-section (4)
of Sec.23, no mens rea, culpability, and malafide or illegal
intention is required. Mere publication of the details of the
victim child will attract the offence under sub-section (4).
Therefore, the thrust of the contention advanced by the
petitioner that the petitioner did not have any malafide
intention to expose the child, cannot be sustained under law.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE SHAJI P.CHALY
11TH DAY OF NOVEMBER 2016
WP(C).No. 31378 of 2016 (V)
SUDHEESH KUMAR.S.R.,
V
STATE OF KERALA,
Citation: 2017 CRLJ 443 kerala
This writ petition is filed by the petitioner seeking to
quash Ext.P15 order, and for other related reliefs. Ext.P15 is
an order passed by the Kerala State Commission for Protection
of Child Rights, dated 22.08.2016, whereby a recommendation
was made to conduct enquiry against the petitioner and take
appropriate action under the provisions of Protection of
Children from Sexual Offences Act, 2012 [hereinafter called,
the POCSO Act], and as per the provisions of Child Protection
Commission Act. Material facts for the disposal of the writ
petition are as follows:
2. Petitioner is a practising lawyer with 13 years
experience before various Courts in Thiruvananthapuram
District. Petitioner is a public spirited citizen and legal advisor
of FICUS Charitable Society, constituted with the object of
fighting against corruption and for protection of child
education, providing financial assistance to children who are
financially poor. Petitioner filed several complaints against a
teacher in a Higher Secondary School, Kanjiramkulam, with
respect to numerous irregularities noticed for violation of
Ext.P1 Government Order, for collecting excess fees from
SC/ST students, etc. etc. Petitioner came to know that a
teacher working as UPSA in the said school had sexually
molested three girl children, and parent of a child filed a
complaint before the Head Master. Since there was no action
taken against the said person, despite adverse report and
recommendation of the Educational Officer, Neyyattinkara,
petitioner secured documents through the Right to Information
Act. In spite of all earnest efforts of the petitioner, there was
no action forthcoming from the authorities, and therefore, with
the bonafide intention to pressurize the authorities, posted
Exts.P9, and P7 and P8 received along with Ext.P9, under the
RTI Act, in the face book. Ext.P8 contains the name, class,
division and school of the child. According to the petitioner,
petitioner did not notice it before posting Ext.P8 in the face
book.
3. On noticing the name of the child next day itself,
petitioner deleted the same from the face book account of the
petitioner. One Vijaya Kumar, who is also an activist of FICUS
charitable society, requested the 3rd respondent through
Ext.P10 to take action against the said teacher, based on the
report of the DPI and records received under the RTI Act. In
reply to Ext.P10, 3rd respondent sent Ext.P11 communication
to Mr. Vijaya Kumar, stating that it is trivial or frivolous matter
and it is outside the purview of the Commission. It is also
stated, at the instance and influence of the Manager and
teacher in question of the school, in collusion with 6th
respondent filed Ext.P12 complaint before the Commission on
the basis of Ext.P12, and 3rd respondent issued Ext.P13 notice
to the petitioner to appear in person before the Commission.
Petitioner appeared before the Commission and submitted
detailed explanation. However, without considering the
explanation submitted by the petitioner, Commission passed
Ext.P15 order, directing the 5th respondent to conduct enquiry
into Ext.P12 complaint as well as Ext.P14 objection and take
steps to proceed against the culprits. It is thus challenging
Ext.P15, this writ petition is filed.
4. Fifth respondent has filed a statement through the
Special Government Pleader (Women & Children), disputing
the statements, allegations and claims and demands made by
the petitioner. It is also stated, the complaint originated from
a face book post of the petitioner on 23.05.2016 disclosing the
personal details of the child who was alleged to have been
sexually abused by a male teacher. The photocopy of the face
book post uploaded by the petitioner is produced as Annexure-
(a). It is also stated that the various documents which were
uploaded in the face book post clearly show the name of the
victim, school and the name of the male teacher alleged to
have sexually abused the child, thereby revealing the identity
of the child and also intruding into her privacy. It is further
stated, apart from Exts.P7, P8 and P9, yet another document
is also posted in the face book, produced as Annexure-(b), and
in the said document also, the identity of the victim girl as well
as the injuries allegedly sustained to her self respect was
mentioned.
5. That apart, it is submitted, consequent on the
receipt of the complaint, notice was issued to the petitioner,
received objection and considered the objection, complaint and
after providing an opportunity of hearing only, Ext.P15 order is
passed. However, it is also stated, an enquiry was conducted
through the Deputy Superintendent of Police, Neyyattinkara,
wherein the father of the victim girl, Head Master of the school
and another lady teacher of the school were questioned, from
which it was revealed that a complaint was made against the
teacher for child molestation. However, the Head Master when
enquired into the complaint revealed that the complaint had no
sanctity. Yet, departmental action was taken against the
teacher on the report of the Head Master and certain steps
were taken affecting the service conditions of the said teacher.
It is also stated, father of the student, did not submit any
other complaint before any other office in connection with this
matter. Moreover, father had also stated, his daughter is
studying in the same school for Plus One and he was unaware
of any face book post or regarding any agency investigating
the matter. According to him, the studies and future of his
daughter are of paramount importance to him.
6. However, the petitioner, after five years, when the
victim girl is doing her Plus One in the same school had gone
behind the incident under the RTI Act for reasons best known
to him and uploaded the face book post with disgraceful
comments. Therefore, according to the respondents, the
disclosure of identity of the child, contravened Sec.23(1) and
(2) of the POCSO Act. It is according to the provisions of law,
Ext.P15 order is passed. It is also stated that the impugned
order is passed observing all principles of natural justice and
therefore petitioner has not made out any case warranting
interference of this Court by invoking the power of judicial
review under Article 226 of the Constitution of India.
7. Petitioner has filed a reply affidavit to the statement
filed by the respondents, reiterating and adopting the stand
taken in the writ petition. It is also stated therein that the
school management or Child-line activists did not lodge a
complaint with respect to the incident before police due to the
influence of the teacher in question and the Manager of the
school, and now the 6th respondent has filed Ext.P12 complaint
against the petitioner. However, did not file any complaint
against the teacher who is the real culprit. It is also stated
that the subject matter should have been reported to the
police and police ought to have taken appropriate action.
8. Heard learned counsel for the petitioner and the
learned Special Government Pleader, and perused the
documents on record and the pleadings put forth by the
respective parties.
9. The subject matter of this writ petition is revolving
round Ext.P15 order passed by the Commission for Protection
of Child Rights. The question to be decided is whether it
suffers from any manner of illegality or arbitrariness enabling
this Court to interfere with the same. The paramount
contention advanced by learned counsel for the petitioner is
that the petitioner has made the post in the face book which
contained the name of the child with bonafide and good
intentions. The intention of the petitioner was to book the real
culprit, who is a teacher in the school in question. It is also
stated that the name of the child is contained in Exts.P7 and
P8 and P9, which were received by the petitioner under the RTI
Act, and therefore mere posting of the same will not amount to
the offence under Sec.23 of the POCSO Act. Therefore,
essence of the issue is dependent on Sec.23 of POCSO Act,
which reads as follows:
"23. 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.
(2) No reports in any media shall disclose, the
identity of a child including his name, address,
photograph, family details, school, neighbourhood or
any other particulars which may lead to disclosure of
identity of the child:
Provided that for reasons to be recorded in
writing, the Special Court, competent to try the case
under the Act, may permit such disclosure, if in its
opinion such disclosure is in the interest of the child.
(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 of which shall not be less than six months but
which may extend to one year or with fine or with
both".
10. On an evaluation of Sec.23, it is unequivocally clear,
a prohibition is made under sub-section (1) thereto, by which,
no person shall make any report or 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. Further, as per sub-section (2), no reports in any
media shall disclose the identity of a child including his name,
address, photograph, family details, school etc. etc.
Therefore, the intention under Sec.23 is very clear that the
victim child shall not be exposed to any sort of publication so
as to affect her future and damn her career. In my considered
opinion, in order to constitute an offence under sub-section (4)
of Sec.23, no mens rea, culpability, and malafide or illegal
intention is required. Mere publication of the details of the
victim child will attract the offence under sub-section (4).
Therefore, the thrust of the contention advanced by the
petitioner that the petitioner did not have any malafide
intention to expose the child, cannot be sustained under law.
11. Yet another contention advanced by learned counsel
is that, the incident took place before the introduction of the
Act. The POCSO Act came into force in the year 2012 and the
issue with respect to molestation took place much prior to
that. The incident under the consideration of the Commission
was not the issue of molestation. The issue was with respect
to the publication of the details of the victim child through face
book post, which took place on 23.05.2016 when the post was
uploaded in the face book. Therefore, in order to attract an
offence under Sec.23, the incident allegedly took place in
respect of the molestation of the child is not at all relevant.
The relevance of Sec.23 is in respect of the face book post,
which, even according to the petitioner, is after the
introduction of the Act. Therefore, there is no substance or
foundation for the contention advanced by the learned counsel
accordingly.
12. Learned counsel even though has brought to my
attention, discussion in the Parliament of India, Rajya Sabha,
in respect of the Protection of Children from Sexual Offences
Bill, 2011, and specifically to clause 23, wherein a Procedure
for Media is explained. However, on going through the said
report, I do not find anything in favour of the petitioner.
However, the attempt of the learned counsel for the petitioner
was to impress upon me a point that media means, the media
which broad-casts, for public attention. However, since
'media' is not defined under the POCSO Act, a reference to
dictionary meaning of the term would be worthwhile. The
Chambers Concise Dictionary defines 'media' as a medium, it is
further explained as any intervening means, instrument, or
agency etc. etc. Therefore, in my considered opinion, the said
contention advanced by the petitioner is also not having any
bearing to the issue in question.
13. Learned counsel has also invited my attention to
'Maxwell on the Interpretation of Statutes' Twelfth Edition,
Page 239, and pointed out that, if there appears any
reasonable doubt or ambiguity, it will be resolved in favour of
the person who would be liable to the penalty. Further pointed
out to a passage, which reads: "If the language of the statute
is equivocal and there are two reasonable meanings of the said
language, the interpretation which will avoid the penalty is to
be adopted. The court must always see that the person to be
penalised comes fairly and squarely within the plain words of
the enactment". Therefore, it is the contention of the learned
counsel, since there is no malafide intention on the part of the
petitioner in making the post inure to the benefit of the said
person and a punishment under Sec.23(4) shall be avoided.
This issue is discussed by me earlier and has come to a definite
conclusion that no manner of malafides is required to
constitute an offence. Therefore, I do not propose to take a
benevolent approach in favour of the petitioner. This Court is
also bound by the provisions of law since the validity of the
same is not under challenge. It is well settled that a provision
of a statute should be interpreted to meet the purpose and
purport it needs to serve. Looking in that angle also, I have no
hesitation to hold that petitioner is not entitled to get any
relief. Moreover, from the impugned order itself, it is clear,
petitioner was given all opportunity to defend his case and
thereafter only Ext.P15 order is passed.
14. Upshot of the above discussion is, petitioner failed
to establish any case to interfere with Ext.P15 order passed by
the Commission, invoking the power conferred on this Court
under Article 226 of the Constitution of India.
Resultantly, writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P. CHALY
JUDGE
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