Kerala High Court Quashes Case Against Police Officer For Remarks Against Walayar Rape Victims, Asks DGP To Consider Action Against News Channel

For context, Section 23(1) of PoCSO Act is given below:

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.

In the Walayar case, two sisters, aged 13 years and 9 years respectively, were found hanging in their one-room house on separate days within a span of 3 months in 2017. Both of them belonged to Scheduled Caste community. Post-mortem reports disclosed that they were subjected to rape before their deaths. The post-mortem report of the younger girl even suggested the possibility of homicidal hanging. The incident caused a huge uproar in the Kerala civil society.

The police however, in the final report, did not investigate the angle of homicide and submitted a report for the charges of abetment of suicide, rape and unnatural sex under the Indian Penal Code. One of the accused was a juvenile.

The Special POCSO Court acquitted all the accused in 2019. The Court held that the prosecution failed to prove the allegation. The Court also noticed the absence of scientific evidence. The details of the judgment by the Special POCSO Court, Palakkad can be read here, here and here.

The High Court after noting that there were lapses on the part of the investigators and prosecutors had ordered a re-trial. The Court had specifically mentioned that officer M. J. Sojan, the petitioner in the instant case, who was the then Deputy Superintendent of Police and had investigated the case had failed to collect scientific evidence in time.

Background of the Case

As per the complaint given by the mother of the victim children, on 13.01.2019, M. P. Sojan through a program in '24 News' Channel made a statement to the reporter that the children enjoyed the sexual acts committed by the accused. It is also alleged that he said acts were done upon the children with their consent. This conversation was uploaded on the Youtube channel of '24 News' and was telecasted over their television channel.

The complainant said that the investigating officer had no opportunity to interact with the children and had not authoritative information on this. Being the investigating officer in their case, he fully knew that they belonged to Scheduled caste. The complainant stated that such statements would have affected their reputation if they were still alive.

The case is proceeding before the Special POCSO Court, Palakkad. The Officer had approached the High Court seeking quashing of further proceedings in the case.

Arguments advanced by the Parties

The Counsel for the Petitioner argued that the heading of Section 23 of POCSO Act says “procedure for media”. Therefore, the provision can be used only to punish media persons.

The Counsel for the complainant said that in Section 23(4), the words “any person” which signifies that the provision is not just applicable to the media persons but any other person who makes such comments.

Findings of the Court

Justice A. Badharudeen observed that the heading of a section has little to do with the construction of a statute. He said the provisions uses the word “any person” or “no one”. The phrase “media person” is not used instead. Therefore, the Court held that the provision is not limited to media person alone.

The Court then examined the statement of Shanoob Meerasahib who was working in 24 News at the relevant time. He had given his sworn statement claiming that the officer made these statements to him when he asked him questions as a part of investigative journalism. Shanoob gave these statements to the channel with the record.

The Court observed that the prosecution material do not show that the petitioner had any knowledge that said statements were intended to be published or telecasted. The Court said those statements were not made during an interview or when he was talking to media directly. The Court therefore held that the offence under Section 23(1) of the POCSO does not stand.

The Court also criticized the State for indulging in selective prosecution. The Court said that the offence under Section 23(1) might have been attracted against Shanoob and other officials in the channel responsible for the telecast.

The Court observed:

“Be it so, the offence under Section 23(1) may attract against CW1 and other officials responsible for telecasting the same in the channel. But the 1^st respondent did not array them as accused in the complaint and they aimed at selective prosecution.”

The Court directed the Registry to forward a copy of this judgment to Police for considering investigation against Shanoob and others.

Counsel for the Petitioners: Advocates Thomas J. Anakkallunkal, Jayaraman S., Nirmal Cheriyan Varghese, Litty Peter, Anupa Anna Jose Kandoth, Dhanya Sunny, Ann Milka George

Counsel for the Respondents: Senior Public Prosecutor Adv. Renjit George, Adv. P. V. Jeevesh

Case No: Crl. M. C. 4268 of 2022

Case Title: M. J. Sojan v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 575