POCSO Act - Non-Reporting Of Sexual Assault Despite Knowledge Is A Serious Crime : Supreme Court

The Supreme Court observed that non-reporting of sexual assault against a minor child despite knowledge is a serious crime.

More often than not, it is an attempt to shield the offenders of the crime of sexual assault, the bench of Justices Ajay Rastogi and CT Ravikumar said while setting aside the Bombay High Court order that quashed criminal proceedings against a medical practictioner who was accused of offence of not reporting POCSO.

Background

An FIR was registered against unidentified person(s) on the accusation of commission of sexual offences against minor tribal girls who were students of Infant Jesus English Public High School, Rajura residing in its girls' hostel. During the investigation, Superintendent of the hostel and four others,  were arrested and arraigned as accused in the crime. One other accused was a Medical Practitioner appointed for treatment of girls admitted to the said Girls' hostel and the victim girls were taken to him.  He was arraigned as an accused after the investigation revealed that he had knowledge about the incidents occurred as the victim girls revealed in their statements recorded under Section 161 of Cr.P.C. The accused was under a legal obligation, in terms of the provisions under Section 19(1) of the POCSO Act upon getting the knowledge about committing of an offence under the POCSO Act, to provide such information either to the Special Juvenile Police Unit or the local police. Allowing petition under Section 482 CrPC filed by the said accused, the High Court quashed the proceedings against him observing that there is no evidence to implicate the applicant in the said crime.

We are not peeved, but certainly pained

In its judgment allowing the appeal, the bench made the following observations at the outset:

This Court in Shalu Ojha v. Prashant Ojha observed: "this is an unfortunate case where the provisions of the Protection of Women from Domestic Violence Act, 2005 are rendered simply a pious hope of the Parliament and a teasing illusion for the appellant". Even while, borrowing those words, we may say, we are not peeved, but certainly pained, as a legitimate prosecution under another Act viz., the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act"), has been throttled at the threshold by the exercise of power under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), without permitting the materials in support to it to see the light of the day in respect of misprision of sexual assault against minor tribal girls in a girls' hostel

Prompt and proper reporting of the commission of offence under the POCSO Act is of utmost importance

As per Section 19(1) any person (including the child), who has apprehension that in offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,--(a) the Special Juvenile Police Unit; or (b) the local police. The bench noted that violation of Section 19 (1) is punishable under Section 21 only with imprisonment for a short duration viz., six months and observed:

"One may think that it is not an offence to be taken seriously. However, according to us that by itself is not the test of seriousness or otherwise of an offence of failure to discharge the legal obligation...Prompt and proper reporting of the commission of offence under the POCSO Act is of utmost importance and we have no hesitation to state that its failure on coming to know about the commission of any offence thereunder would defeat the very purpose and object of the Act. We say so taking into account the various provisions thereunder. Medical examination of the victim as also the accused would give many important clues in a case that falls under the POCSO Act. Section 27 (1) of the POCSO Act provides that medical examination of a child in respect of whom any offence has been committed under the said Act, shall, notwithstanding that a First Information Report or complaint has not been registered for the offence under the Act, be conducted in accordance with Section 164 A of the Cr.P.C., which provides the procedures for medical examination of the victim of rape In this contextual situation, it is also relevant to refer to Section 53 A of Cr.P.C. that mandates for examination of a person accused of rape by a medical practitioner. It is also a fact that clothes of the parties would also offer very reliable evidence in cases of rape. We refer to the aforesaid provisions only to stress upon the fact that a prompt reporting of the commission of an offence under POCSO Act would enable immediate examination of the victim concerned and at the same time, if it was committed by an unknown person, it would also enable the investigating agency to commence investigation without wasting time and ultimately to secure the arrest and medical examination of the culprit. There can be no two views that in relation to sexual offences medical evidence has much corroborative value."

More often than not, it is an attempt to shield the offenders of the crime of sexual assaul

The bench noted that the High Court had relied on statements made under Section 161 CrPC to come to quash the proceedings against the accused. The court said that such statements recorded under Section 161 Cr.P.C. are inadmissible in evidence and, therefore, could not have been made the basis for arriving at such conclusions. 

"We have no doubt that the High Court should not have embarked upon an enquiry, especially by looking into the statements of the victims recorded as also their teacher to form an opinion regarding the availability of evidence to connect the Respondent with the crime. True that the FIR and the charge sheet still remain in fact in respect of the other accused. But then, non-reporting of sexual assault against a minor child despite knowledge is a serious crime and more often than not, it is an attempt to shield the offenders of the crime of sexual assault. Be that as it may in view of the decision in Shankar Kisan Rao Khade's case (supra) holding non-reporting of such a crime as serious and in view of the position obtained from a conjoint reading of Sections 19(1) and 21 of POCSO Act, such persons are also liable to be proceeded with, in accordance with law. In this context, it is also relevant to refer to an observation made by this Court in the said case that this Court under parens patriae jurisdiction has a duty to give directions for compliance of the provisions under the POCSO Act", the court said while allowing the appeal.

Case details

State of Maharashtra vs Dr. Maroti s/o Kashinath Pimpalkar | 2022 LiveLaw (SC) 898 | CrA 1874 of 2022 | 2 November 2022 | Justices Ajay Rastogi and CT Ravikumar

Counsels for the Petitioner(s): Mr. Sanjay Kharde, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR

Counsels for the Respondent(s): Mr. Anil Mardikar, Senior Advocate, Mr. Sachin Shanmukham Pujari, AOR

Headnotes

Protection of Children from Sexual Offences Act, 2012 ; Section 19(1), 21 - Non-reporting of sexual assault against a minor child despite knowledge is a serious crime and more often than not, it is an attempt to shield the offenders of the crime of sexual assault - Prompt and proper reporting of the commission of offence under the POCSO Act is of utmost importance and we have no hesitation to state that its failure on coming to know about the commission of any offence thereunder would defeat the very purpose and object of the Act. (Para 12-15, 22)

Code of Criminal Procedure, 1973 ; Section 161 and 164 - Indian Evidence Act, 1872 ; Sections 145,157 - Statements recorded under Section 161 Cr.P.C. are inadmissible in evidence and its use is limited for the purposes as provided under Sections 145 and 157 of the Evidence Act - statement recorded under Section 164, Cr.P.C. can also be used only for such purposes. (Para 20)

Code of Criminal Procedure, 1973 ; Section 482 - Scope of exercise of power under Section 482 - Exercise of power under Section 482 Cr.P.C. is an exception and not the rule and it is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist - If FIR and the materials collected disclose a cognizable offence and the final report filed under Section 173(2), Cr.P.C. on completion of investigation based on it would reveal that the ingredients to constitute an offence under the POCSO Act and a prima facie case against the persons named therein as accused, the truthfulness, sufficiency or admissibility of the evidence are not matters falling within the purview of exercise of power under Section 482 Cr.P.C. and undoubtedly they are matters to be done by the Trial Court at the time of trial. (Para 18)

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