In the case of Damayanti Madhav Vasave v. The Commissionerate of Police, Greater Mumbai and Anr., a Bombay High Court Bench of Justices Revati Mohite Dere and VG Bisht sought the response of the Mumbai Commissioner of Police in a plea challenging a circular that mandates prior approval of police officers before registration of First Information Reports (FIRs) under the Protection of Children from Sexual Offenses (POCSO) Act and for offence of outraging
The court ordered the Public Prosecutor to seek direct instructions from the Commissioner and inquire if he is willing to retract the circular, which required the permission of the Assistant Commissioner of Police (ACP) and Zonal Deputy Commissioner of Police (DCP) before such charges could be brought.
The petition, which was filed by Advocate Arjun Kadam, took issue with the circular on the following grounds:
- All that is required at the time of FIR registration is to decide if the information supplied ex facie reveals the commission of a cognizable offence. If the information submitted is shown to be false after an investigation, the complainant may face charges of filing a false police report.
- In circumstances when the claims levelled in the FIR are regarded to be untrue, the police have sufficient authority and discretion to defer or not make any arrest at all.
- Failure to record an offence under the POCSO Act is punished under Section 21 of the Act. As a result, the Commissioner has ignored the legislative mandate and instead given total discretion to the ACP and subsequently the DCP, who would decide whether the offence should be filed or not.
- Section 22 of the Act deals with the apprehension of the respondent in the event that the complaint is a false complaint. The Indian Penal Code also contains a similar provision.
- The circular refers to the Lalita Kumari judgment, but ignores the fact that the circular’s issuing constitutes a violation of the principles put down in that decision.
- The circular then goes on to change parliamentary legislation, which is clearly beyond the Commissionerate of Police, Greater Mumbai’s jurisdiction. As a result, the circular’s issuance is hampered by a lack of legal authority.
- The circular would apply to all offences under the POCSO Act, regardless of whether the facts necessitate immediate preparations for the child victim’s care and custody or not.
- The circular is arbitrary, illogical, and disrespectful of the law established by the Supreme Court and the Bombay High Court, as well as the terms of the POCSO Act, 2012.
After she and her minor daughter were sexually assaulted by a constable and her accomplice, the petitioner went to Nagpada Police Station to register a FIR in September 2021. The station declined to file a FIR, instead recommending that a preliminary investigation be opened to determine the veracity of her claims. The FIR has still to be recorded after more than nine months.
She also filed an application with a Mumbai special court, which is now pending.
She filed a complaint with the High Court, claiming that the circular will prejudice and obstruct the registration of her FIR.
On June 23, a new hearing date has been set for the case.
