Bombay High Court seeks Commissioner response in plea against circular requiring ACP, DCP approval for registering POCSO cases

The Bombay High Court on Thursday 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 Offences (POCSO) Act and for the offence of outraging the modesty of women [Damayanti Madhav Vasave v. The Commissionerate of Police, Greater Mumbai and Anr.]..A Bench of Justices Revati Mohite Dere and VG Bisht directed the Public Prosecutor to seek instructions directly from the Commissioner and ask him whether he is ready to withdraw the said circular, which mandated approval of the Assistant Commissioner of Police (ACP) and Zonal Deputy Commissioner of Police (DCP) before such cases are filed..The plea, filed through Advocate Arjun Kadam, took exception to the circular on the following grounds:1. At the point of FIR registration, all that is required is to determine if the information provided ex facie exposes the commission of a cognizable offence. If the information provided is discovered to be fraudulent following an inquiry, the complainant might be prosecuted for submitting a fake FIR.2. Information being likely to be false can be no ground for not registering the offence as the police have enough powers and discretion to defer the arrest or to not effect any arrest at all, in cases where the allegations levelled in the FIR are believed to be false.3. Section 21 of the POCSO Act makes the failure to register an offence under the Act a punishable offence. As such, the compulsion imposed by the legislative mandate has been side lined by the Commissioner and has instead vested absolute discretion with the ACP and then the DCP who would decide whether the offence should be registered or not.4. Section 22 of the Act deals with eventualities of the complaint being a false complaint and addresses the apprehension of the respondent. A similar provision is contained in the Indian Penal Code as well5. The circular makes a reference to the Lalita Kumari judgment, but ignores the fact that the issuance of the circular is in itself a violation of the principles laid down in that judgment.6. The circular goes on to amend parliamentary legislation, which is undoubtedly beyond the competence of the Commissionerate of Police, Greater Mumbai. The issuance of the circular thus suffers from lack of legislative competence.7. The circular would 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.8. The circular is arbitrary, perverse and contemptuous to the law laid down by the Supreme Court and the Bombay High Court, and is also unconstitutional to the provisions of the POCSO Act, 2012..The petitioner had gone to Nagpada Police Station in September 2021 to file an FIR after she and her minor daughter were sexually assaulted by a constable and her accomplice. The station declined to register an FIR and instead recommended that a preliminary investigation be launched to test the authenticity of her accusations. More than nine months on, the FIR is yet to be recorded.She had also filed an application before a special court in Mumbai, which is still pending.Apprehending that the circular will prejudice and impede the process of registration of her FIR, she moved the High Court to assail the circular.The case has been scheduled for further hearing on June 23.