Mandate U/S 19 POCSO Act To Report Offence Is To Be Performed By A Person In Personal Capacity: Kerala HC Quashes Case Against Ex-CWC Head

The Kerala High Court (on December 20) observed that the mandate of reporting offences provided under Section 19 of the Protection of Children from Sexual Offences Act, 2012 is not of an official character and the person has to report it in his personal capacity.

“Section 19 of the POCSO Act casts a mandate on any person to report the commission of an offence. The mandate to report does not relate to his official character. The mandate to report contained in Section 19 of the POCSO Act is to be performed in his private capacity,” held Justice K Babu.

Reliance was placed upon the Supreme Court's decisions in Shankar Kisanrao Khade v. State of Maharashtra (2013) and State of Maharashtra v. Maroti (2022) to highlight the utmost importance of prompt reporting of offences under the Act.

In the present case, the allegations against the accused, a former chairman of the Child Welfare Committee, Thrissur, were of non-reporting offences under the Act to the police. However, the accused claimed that he directly informed the police about the matter on the very next day.

The Court observed that the mandate of Section 19 is not of an official character. Adverting to the facts of the case, it pointed out that the CWC was apprised about the victim's case through a letter. However, the details of the abuse were not mentioned in the letter. There was a general mention of the abuse.

“The charge against the petitioner is that he failed to report the matter. The petitioner got information only on 05.02.2014. He reported the matter to the police on the very next day. The necessary conclusion is that the petitioner has discharged the mandate cast on him in his private capacity under Section 19 of the POCSO Act."

The Bench discussed that as per Section 42A (Act not in derogation of any other law) of POCSO Act, its provisions shall be in addition to and not in derogation of the provisions of any other law. Further, in case of any inconsistency, the provisions of the Act shall have an overriding effect to the extent of such inconsistency.

Taking cue from this, the Court said that the non-obstante clause in Section 19 is to be constructed strictly so that its overriding effect is restricted only to the contradictory provisions of the CrPC. The Court then referred to Sections 39 and 40 of CrPC, which also talks about reporting the commission of offences. Marking the inconsistencies, the Court said that, unlike in the Act, the failure to report under Section 39 by itself is not defined as an offence.

“Therefore, when a person is to be tried for his failure to report under Section 19 of POCSO Act, he cannot resort to Section 39 of the Cr.PC and take protection on the ground that he had a reasonable excuse not to report the offence. Therefore, in the above context, Section 19 of the POCSO Act overrides the provisions of Section 39 of the Cr.PC.,'' the Court elaborated.

Having cemented this background, the Court found that the accused's defence is based on sound, reasonable and indubitable facts. Therefore, it held the proceedings initiated against him would result in the abuse of the process of the Court. Resultantly, the criminal proceedings against him were quashed.

Apart from this, the Court also clarified that the safeguard under Section 19(5) of the Act extends to a child reporting the offence. For reference, this Section states:

“Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection including admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report, as may be prescribed.”

Before parting, the Court noted that the final report revealed the identity of the victim. It expressed its dismay at the police for failing to protect the victim's interest. After reiterating the provisions under several Acts that make disclosure of a victim's identity a punishable offence, the Court observed:

“Those provisions and guidelines manifest that the interest of the victim of sexual offences are to be taken care of by the judiciary, executive and all organs of the State. It is painful to note that the police in the present case failed to protect the paramount interest of the victim in this regard.''

It directed the State police to see that the mandate of the Act, which states that the identity of the victim is not revealed, is scrupulously followed by the members of the police force.

Case Name: GEORGE P.O v. State of Kerela and another., CRL.MC NO. 5970 OF 2021

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