Written By- Pretika tiwari
[Damayanti Madhav Vasave v. The Commissionerate of Police, Greater Mumbai and Anr.]
The Bombay High Court on Thursday decided to seek the Mumbai Commissioner of Police’s response to a petition challenging a circular that requires prior approval of police officers before filing FIRs under the Protection of Children from Sexual Offences (POCSO) Act and for the offence of outraging women’s modesty. The bench directed the Public Prosecutor to seek a response from the Commissioner and ask him whether he was willing to withdraw the circular, which required the approval of the Assistant Commissioner of Police (ACP) and the Zonal Deputy Commissioner of Police (DCP) before such cases could be filed.
The petition filed through, Advocate Arjun Kadam, took an exception to the circular on following grounds:
- During the registration of the FIR, it is to be determined whether the provided information exposes an ex-facie commission of a cognizable crime.
- Information that is likely to be false cannot be used as a reason not to register the offence because the police have adequate authority to defer or not make any arrests at all.
- Failure to record an offence under the POCSO Act is a punishable offence under Section 21. The compulsion imposed by the legislative mandate has been sidelined by the Commissioner and has vested absolute discretion with the ACP instead and then the DCP to decide whether the offence should be registered or not.
- The circular, while referring to the Lalita Kumari judgement, ignores the fact that the issuance of the circular is in itself a violation of the principles laid down in that judgement.
- The circular then goes on to change parliamentary legislation, which is clearly beyond the Commissionerate of Police, Greater Mumbai’s jurisdiction.
- The circular would apply to all offences under the POCSO Act, regardless of whether the facts necessitate immediate provisions for the child victim’s care and custody or not.
- The circular is arbitrary of the law established by the Supreme Court and the Bombay High Court, as well as the requirements of the POCSO Act, 2012.
The petitioner had gone to the Nagpada Police Station to record an FIR under the POSCO Act, but the registration was declined, and a preliminary investigation was suggested to verify the authenticity of her accusations. It has been more than nine months, and the FIR has still not been recorded. So she moved to the High Court to assail the circular. The case will be heard on 23 June.