Will police chief withdraw circular on new norms for FIRs under POCSO, asks Bombay HC

The petitioner said that she had approached a police station in the city in September last year, after she and her minor daughter were sexually assaulted by a constable and another person.

However, police declined to register an FIR and instead recommended that the preliminary probe be conducted to check veracity of the allegations. The petitioner filed an application before a special court in Mumbai, which is still pending and the FIR is yet to be lodged.The petitioner said the circular will prejudice and delay the process of registration of FIR further, and approached the High Court seeking to quash and set aside the same.

According to police officers, the circular was issued in the aftermath of the Dharavi police wrongly arresting two brothers in connection with the rape of a 19-year-old woman.

The order issued last week stated: “It has come to light that owing to property dispute, previous enmity and other personal reasons, people lodge complaints of POCSO and molestation. In such instances, without verifying the facts, the person on whom allegations are placed are often arrested.” Pandey told police to first seek a recommendation from the assistant commissioner of police, following which they would have to get permission from the zonal deputy commissioner.

The plea, filed through advocate Arjun Kadam, stated that at the point of filing FIR, all that is required is to determine if the information provided “ex facie” exposes commission of cognizable offence. It added that if the information provided is found to be fraudulent following an inquiry, the complainant might be prosecuted for submitting a fake FIR.

The writ petition added, “Information being likely to be false cannot be grounds for not registering the offence as police have enough powers to defer the arrest or not to effect it in case of false allegations.

The plea stated that Section 21 of the POCSO Act stipulates the failure to register crime as a punishable offence and there is a compulsion imposed through the law, which has been sidelined in the impugned circular, which vested absolute discretion with ACP and then the DCP, who would decide whether the offence can be registered or not. The petitioner went on to state that the circular is in violation of the principles laid down in the Lalita Kumari case by the Supreme Court and goes on to amend the Parliamentary legislation, which is “undoubtedly beyond the competence of the Mumbai CP. The issuance of the circular thus suffers from lack of legislative competence.”

Claiming that the circular was “arbitrary, perverse and contemptuous” to the law laid down by High Courts, SC, POCSO Act and the Constitution, the plea apprehended that it would also apply to all offences under the POCSO Act, irrespective of whether the facts require immediate provisions for care and custody of the child victim or otherwise. The bench asked Additional Public Prosecutor Veera Shinde to take instructions directly from Pandey on whether he was willing to withdraw the circular, otherwise the court would pass orders accordingly. APP Shinde sought time to respond.