Kerala High Court
George P.O vs State Of Kerala on 20 December, 2024
Author: K. Babu
Bench: K. Babu
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 20TH DAY OF DECEMBER 2024 / 29TH AGRAHAYANA,
1946
CRL.MC NO. 5970 OF 2021
CRIME NO.1130/2019 OF OLLUR POLICE STATION, THRISSUR
SC NO.811 OF 2020 OF ADDITIONAL SESSIONS COURT-I, THRISSUR
PETITIONER/ACCUSED NO.2:
GEORGE P.O.,
AGED 72 YEARS,
S/O. OUSEPH, PARANIKKULANGARA HOUSE,
OLLUKKARA DESOM, OLLUKKARA VILLAGE,
THRISSUR, PIN-680 655
BY ADVS.
V.JOHN SEBASTIAN RALPH
VISHNU CHANDRAN
RALPH RETI JOHN
APPU BABU
SHIFNA MUHAMMED SHUKKUR
MAMATHA S. ANILKUMAR
ANILA T.THOMAS
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, COCHIN-682 031
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2 BENNY JACOB,
INVESTIGATING OFFICER (CW34) ,
INSPECTOR OF POLICE, OLLUR POLICE STATION,
THRISSUR,PIN-680 006
BY ADV
SRI.G.SUDHEER, PUBLIC PROSECUTOR
SRI.M.K.SREEGESH, AMICUS CURIAE
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
20.12.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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'C.R'
K.BABU, J.
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Dated this the 20th day of December, 2024
ORDER
The petitioner seeks to quash the proceedings against him in
S.C No.811/2020 on the file of the Additional Sessions Court-I,
Thrissur. The petitioner is the former chairman of the Child Welfare
Committee, Thrissur. He functioned as such for a period from 2009
to 2019. He has been arrayed as accused No.2 (Crime No.1130/2019
of Ollur Police Station) in the Sessions Case.
2. The offences alleged are punishable under Sections 450,
354(A), 376(2)(l), 376(2)(i) and 506 of the IPC and Sections 4, 3(b), 6,
5(k), 12 read with Section 11 (iii) and Section 21 of the Protection of
Children from Sexual Offences (POCSO) Act, 2012. The petitioner
has been arrayed as accused No.2, alleging the offence under
Section 21 read with Section 19(1) of the POCSO Act for non-
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reporting of the matter to the police.
3. The incident came to light after many years while the
victim was sexually abused by an auto driver for which Crime
No.1028/2019 was registered. In that crime, the provisions of the
POCSO Act were not included as the victim had attained 19 years on
the date of the second crime.
4. The allegation against the petitioner is that he had not
reported the incident to the police, when it was informed to him in
2014.
5. The allegation in the present crime is that accused No.1 had
shown the victim porn videos digitally and committed penetrative
sexual assault on her.
6. The case of the petitioner is as follows:
(A) The petitioner had duly intimated the matter to
the police. He had informed the matter to the
police over the phone and made an endorsement
in the relevant file “directed to police” sd/-
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06.02.2014.
(B) The CWC got information regarding the incident
only on 05.02.2014. The petitioner reported the
matter to the police on the very next day.
(C) During 2014, in the office of the CWC,
infrastructure like internet facilities, secretarial
staff, etc, were not available. The petitioner
himself would do all the typing work on his
personal computer. In the present case, the
petitioner himself prepared a letter directing the
police and transferred to the CWC for necessary
action.
7. The learned counsel for the petitioner raised the following
contentions:
(i) The petitioner had directly informed the matter to
the police over the phone and also taken steps to
report the matter to the police.
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(ii) Sanction under Section 197 Cr.PC is required to
initiate the prosecution as the alleged act was
committed during the course of his official
functions.
8. This Court appointed Advocate Sri.M.K.Sreegesh as Amicus
Curiae.
9. The learned Amicus Curiae extensively addressed
arguments on the subject. The learned Amicus Curiae submitted
that principles governing the interpretation of the non-obstante
clause in Section 19 of the POCSO Act are to be ascertained keeping
in mind the objects of the acts. The learned Amicus Curiae
submitted that the best interest and well-being of the child are the
relevant factors of paramount importance while constructing
Section 19 of the POCSO Act so as to see whether sanction under
Section 197 of the Cr.PC is required when the prosecution alleges
that any public servant failed to report offences under the POCSO
Act that came to his/her notice. The learned Amicus Curiae
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submitted that being a child Centric legislation, the legislative
mandate is intended to overcome the tendency of non-reporting of
the incident to protect the child.
10. The learned counsel for the petitioner submitted that the
non-obstante clause in Section 19 of the POCSO Act does not
exclude the applicability of Section 197 of the Cr.PC for an offence
committed under Chapter V of the POCSO Act. The learned counsel
for the petitioner submitted that reporting the information relating
to the offence under the POCSO Act does not come under an act in
the private capacity of the public servant.
11. The learned Amicus Curiae, relying on the relevant
provisions in the POCSO Act and the Code of Criminal Procedure,
submitted that the non-obstante clause in Section 19 of the POCSO
Act is not inconsistent with the subject matter of Section 197 of the
Cr.PC and therefore, does not exclude the applicability of Section
197 of the Cr.PC for an offence committed under Chapter V of the
POCSO Act. The learned Amicus Curiae submitted that the mandate
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to report does not relate to the official character of the public
servant. The mandate to report stipulated in Section 19 of the
POCSO Act is to be performed in his private capacity.
12. The issues that arise for consideration:
(1) Whether the non-obstante clause in Section 19
of the POCSO Act, excludes the operation of
Section 197 of the Cr.P.C.
(2) When a public servant fails to report the
commission of an offence as ordained by
Section 19 of the POCSO Act, whether sanction
as contemplated by Section 197 of the Cr.PC is
required to take cognizance of such offence.
ISSUE NO.1
13. For convenience of analysis, Section 19 of the POCSO Act
is extracted below:
“19 – Reporting of offences
(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), any person
(including the child), who has apprehension that an
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9offence 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.
(2) Every report given under sub-section (1) shall
be–
(a) ascribed an entry number and recorded in
writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the
Police Unit
(3) Where the report under sub-section (1) is given
by a child the same shall be recorded under sub-section
(2) in a simple language so that the child understands
contents being recorded.
(4) In case contents, are being recorded in the
language not understood by the child or wherever it is
deemed necessary, a translator or an interpreter, having
such qualifications, experience and on payment of such
fees as may be prescribed, shall be provided to the child
if he fails to understand the same.
(5) 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.
(6) The Special Juvenile Police Unit or local police
shall, without unnecessary delay but within a period of
twenty-four hours, report the matter to the Child
Welfare Committee and the Special Court or where no
Special Court has been designated, to the Court of
Session, including need of the child for care and
protection and steps taken in this regard.
(7) N o person shall incur any liability, whether civil
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10or criminal, for giving the information in good faith for
the purpose of sub-section (1).
14. The learned Amicus Curiae enumerated the following
principles governing the interpretation of a non-obstante clause
relevant to the context:
(a) The non-obstante clause is a legislative device to
the provisions of law mentioned therein in
specified circumstances [Aswini Kumar Ghose v.
Arabinda Bose, (1952) 2 SCC 237].
(b) It is a legislative device usually employed to give
an overriding effect to certain provisions over
some contrary provisions that may be found
either in the same enactment or some other
enactment [Union of India v. G.M. Kokil, 1984 Supp
SCC 196].
(c) A non-obstante clause is appended to a section
in the beginning so as to give the enacting part of
the section an overriding effect over the
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provision of the Act specified in the non-obstante
clause in case of conflict [Chandavarkar Sita
Ratna Rao v. Ashalata S. Guram, (1986) 4 SCC
447].
(d) The intention of the legislature is to be gathered
by directing its attention not merely to the
section to be construed but to the entire statute
[State of W.B. v. Union of India, 1962 SCC OnLine
SC 27].
(e) Interpretation of the non-obstante clause must
depend on the text and the context. The statute
deserves to be read, first as a whole and then
section by section, clause by clause, phrase by
phrase and word by word [RBI v. Peerless
General Finance & Investment Co. Ltd., (1987) 1
SCC 424].
(f) If a statute is conceived in the context of its
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enactment, with the glasses of the statute-
maker, provided by such context, its scheme, the
sections, clauses, phrases and words may take
colour and appear different than when the
statute is looked at without the contextual glass.
No part of a statute and no word of a statute can
be construed in isolation. Statutes have to be
construed so that every word has a place and
everything is in its place [RBI v. Peerless General
Finance & Investment Co. Ltd., (1987) 1 SCC 424].
(g) A non-obstante clause is intended to exclude the
operation of conflicting provisions of the same
statute or the provisions of other statute, but for
that reason alone, the non-obstante clause
deserves to be construed strictly [Madhav Rao
Jivaji Rao Scindia v. Union of India, (1971) 1 SCC
85].
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(h) When the section containing the non-obstante
clause does not refer to any particular
provisions which it intends to override, but
refers to the provisions of the statute generally,
it deserves to be interpreted bearing in mind that
in such cases, the non-obstante clause does not
exclude the whole Act and stands all alone by
itself [A.G. Varadarajulu v. State of T.N., (1998) 4
SCC 231 and Madhav Rao Jivaji Rao Scindia v.
Union of India, (1971) 1 SCC 85]. In such cases,
the provisions which are contrary/inconsistent
deserve to be identified first.
(i) If the legislature appends a non-obstante clause
in a later enactment, it conveys that the
legislature intends that the later enactment
should prevail to the extent of inconsistency
[Madhav Rao Jivaji Rao Scindia v. Union of India,
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(1971) 1 SCC 85].
(j) It is a settled rule of interpretation that if one
construction leads to a conflict and another
construction leads to the possibility of both Acts
being harmoniously construed, then the latter
must be adopted [P.S. Sathappan v. Andhra Bank
Ltd., (2004) 11 SCC 672].
(k) The parliament is deemed to know the existing
laws when it enacts a new enactment
[Kishorebhai Khamanchand Goyal v. State of
Gujarat, (2003) 12 SCC 274].
15. The learned Amicus Curiae has taken me to the objects of
the POCSO Act to understand the import of the non-obstante clause
in Section 19 of the POCSO Act. The statement of objects and
reasons of the POCSO Act read thus:
“Statement of Objects and Reasons.- Article 15 of the
Constitution, inter alia, confers upon the State powers to make
special provision for children. Further, article 39, inter alia,
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15provides that the State shall in particular direct its policy
towards securing that the tender age of children are not
abused and their childhood and youth are protected against
exploitation and they are given facilities to develop in a
healthy manner and in conditions of freedom and dignity.
2. The United Nations Convention on the Rights of
Children, ratified by India on 11th December, 1992, requires the
State Parties to undertake all appropriate national, bilateral
and multilateral measures to prevent (a) the inducement or
coercion of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or other
unlawful sexual practices; and (c) the exploitative use of
children in pornographic performances and materials.
3. The data collected by the National Crime Records
Bureau shows that there has been increase in cases of sexual
offences against children. This is corroborated by the “Study
on Child Abuse: India 2007” conducted by the Ministry of
Women and Child Development. Moreover, sexual offences
against children are not adequately addressed by the extant
laws. A large number of such offences are neither specifically
provided for nor are they adequately penalised. The interests
of the child, both as a victim as well as a witness, need to be
protected. It is felt that offences against children need to be
defined explicitly and countered through commensurate
penalties as an effective deterrence.
4. It is, therefore, proposed to enact a self contained
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16comprehensive legislation inter alia to provide for protection
of children from the offences of sexual assault, sexual
harassment and pornography with due regard for
safeguarding the interest and well being of the child at every
stage of the judicial process, incorporating child-friendly
procedures for reporting, recording of evidence, investigation
and trial of offences and provision for establishment of
Special Courts for speedy trial of such offences.
5. The Bill would contribute to enforcement of the right
of all children to safety, security and protection from sexual
abuse and exploitation.
6. The Notes on Clauses explain in detail the various
provisions contained in the Bill.
7. The Bill seeks to achieve the above objectives.”
16. The POCSO Act is a landmark legislation for the protection
of child rights and to prevent the sexual abuse and exploitation of
children. It was enacted with reference to Article 15(3) of the
Constitution recognizing the constitutional obligation, realizing that
the then-existing laws do not adequately address sexual offences
against children. The best interest and well-being of the child are
regarded as factors of paramount importance at every stage, and
the interest of the child both as a child and as a witness is
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safeguarded by providing a child-friendly procedure.
17. The POCSO Act is a gender-neutral legislation. Chapters II
to IV of the Act deal with various offences against children. Chapter
V of the Act sets out the procedure for reporting cases. Chapter VI
provides for recording the statement of the child. Chapters VII and
VIII provide for Special Courts and the procedure and powers of
Special Courts, including the recording of evidence. Section 31 of
Chapter VII postulates that the provisions of the Cr.PC shall apply
to the proceedings save as otherwise provided in the POCSO Act.
Chapter IX sets out the miscellaneous provisions. Section 42A of
Chapter IX stipulates that the provisions of POCSO Act shall be in
addition to and not in derogation of the provisions of any other law
for the time being in force. It further provides that in case of any
inconsistency, the provisions of the POCSO Act shall have an
overriding effect on the provisions of any such law to the extent of
the inconsistency.
Object of Section 19 of the POCSO Act
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18. The mandate to report the offence/apprehension of
commission of offence as envisaged by Section 19 of the POCSO Act
is intended to achieve the following objects:
(a) The mandate to report the apprehension that
an offence is likely to be committed is a
preventive measure intended to stall the
possibility of commission of the offence.
(b) The mandate to report is a legislative tool to
overcome the tendency of witnesses of child
abuse to be silent, giving undue weightage to
factors like social stigma, community
pressure, difficulties of navigating the criminal
justice system, dependency on the perpetrator
emotionally and economically and so on.
(c) The legislative mandate is intended to
overcome the tendency of even the parents
and other members of the family not to report
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19such crimes believing that non reporting of the
same would protect the child from social
stigma which they believe would do more harm
to the victim.
(d) The legislative mandate subserves the purpose
of curbing the growing tendency not to report
the offences, which in turn encourages the
perpetrator to remain silent and prowl for the
next victim.
(e) The mandate to report the offence is intended
to obviate such tendency and to weed away any
such loophole that would facilitate the
perpetrator committing/repeating an offence,
encouraged by the remote possibility of
reporting the commission of offence.
(f) Being a child-centric legislation, prompt
reporting facilitates both prevention or
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20commission of the offence and ensuring that in
such cases the tormentor, shall not go scot-
free.
(g) To make the reporting effective and not
dependent on the nature of the office on whom
the statutory mandate to report is cast.
(h) Section 19 casts such mandate on any person,
including a child, who has knowledge about the
commission of an offence/apprehension that
an offence is likely to be committed,
irrespective of the nature of the office held by
such person. Hence the Act casts a mandate
on every person who has knowledge of the
commission of offence/apprehension that the
offence is likely to be committed to report such
offence, unlike Section 21(2) of the POCSO Act,
which casts a mandate on any person being in
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charge of a company or institution to report the
commission of an offence, under Section 19 (1)
of the POCSO Act by his/her subordinates.
19. The Supreme Court in Shankar Kisanrao Khade v. State of
Maharashtra [(2013) 5 SCC 546] has taken judicial notice of the lack
of statutory framework for prompt reporting of an offence which
had caused the death of a minor child of moderate intellectual
disability.
20. In State of Maharashtra v. Maroti [(2023) 4 SCC 298] the
Supreme Court highlighted the importance of the legal obligation
for reporting offences under the POCSO Act. The Supreme Court
held that the provisions for reporting are included with a view to
ensure strict compliance with the provisions under the POCSO Act
to ensure that the tender age of children is not being abused and
their childhood and youth are protected against exploitation. On the
scope of Section 19(1) of the POCSO Act, the Supreme Court held
that since the failure to discharge the obligation under the section
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is punishable only with imprisonment for a short duration, there
exists a tendency not to attribute seriousness to the offence. The
Supreme Court stressed the utmost importance of prompt
reporting of the offence under the POCSO Act.
Degree of inconsistency between Section 19 of the POCSO Act and
the relevant provisions in the Cr.P.C .
21. I shall now try to identify the provisions in the Code of
Criminal Procedure which are inconsistent with the statutory
mandate contained in Section 19 of the POCSO Act. Section 19 of the
POCSO Act does not refer to any particular provision of the Code of
Criminal Procedure. The non-obstante clause in Section 19 of the
POCSO Act is to be constructed strictly so that its overriding
operative effect is restricted only to the contradictory provisions of
the Code of Criminal Procedure and not to the entire Code.
22. The provisions dealing with reporting of offence in the
Code of Criminal Procedure are Sections 39 and 40. Those sections
cast a mandate on the public, including the officers employed in
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connection with the affairs of a village, to report the commission of
offences specified in the Section. Those sections are pari materia,
with corresponding provisions being Sections 33 and 34 of the
BNSS.
23. The inconsistencies between Section 39 of the Cr.PC and
Section 19 of the POCSO Act are set out hereunder:
Section 39 of the Cr.PC Section 19 of the POCSO Act
The mandate to report by every The mandate to report extends to
person is restricted to offences all the offences under the POCSO
specified therein. Act.
The mandate to report also
The mandate extends to report the includes the mandate to report
intent to commit an offence. when any person apprehends that
an offence is likely to be committed.
The POCSO Act does not offer any
The mandate to report the offence is
exception to the mandate to report
subject to any reasonable excuse.
the commission of offences.
The failure to report under Section 39 The act of non-reporting of an
of Cr.PC by itself is not defined as an offence by itself is tantamount to an
offence. offence.
24. The above table will assist us to analyse the
inconsistencies between Section 19 of the POCSO Act and Section
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39 of the Cr.PC on the principle of ‘subject matter test’. The above
table indicates that Section 19 of the POCSO Act and Section 39 of
the Cr.PC, in respect of the subject matter mentioned above, appear
to be inconsistent with each other. 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.
25. The non-obstante clause of Section 19 of the POCSO Act is
not intended to override the provisions of the Code of Criminal
Procedure, which are not inconsistent with Section 19 of the POCSO
Act.
26. In Ismail. M v. State of Kerala [2019 (3) KLT 1117] by
applying the subject matter test, this Court laid down the
proposition that Section 19 of the Act operates as a special
provision in the matter of reporting of offences under the POCSO
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Act and Section 31 of the POCSO Act, mandates the applicability of
the Code of Criminal Procedure which are not inconsistent with
Section 19 of the POCSO Act.
27. In State of A.P. v. Mangali Yadagiri (2015 SCC OnLine Hyd
579), the Hyderabad High Court applied the ‘object test’ while
considering the issue pertaining to the jurisdiction of the Court to
try a case when offences alleged against the accused are triable
under two legislations that is, the POCSO Act and SC/ST
(Prevention of Atrocities) Act, 1989. Following the ‘object test‘ laid
down by the Supreme Court in Sarwan Singh v. Kasturi Lal [(1977) 1
SCC 750] and KSL and Industries Ltd. v. Arihant Threads Ltd.
[(2008) 9 SCC 763], the Hyderabad High Court held that the test to
be applied is that the later enactment must prevail over the earlier
one. The Court observed that bearing in mind the language of the
two laws, their object and purpose, and the fact that one of them is
later in point of time and was enacted with the knowledge of the
non-obstante clauses in the earlier.
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28. In Re: The Registrar (Judicial) High Court
(MANU/TN/1941/2017) the Division Bench of the Madras High Court
while considering a question regarding the jurisdiction of Court as
to whether it is a special court under the POCSO Act or the
exclusive special court or the special court under the SC/ST Act
has the power to remand the accused during investigation, to take
cognizance of the offences on a police report or on a private
complaint and also to try the offender held thus:
“46. Even otherwise, applying the standard norms of the rules of
interpretation, when there are two analogous provisions in two
different special enactments indicating overriding effect on the
other Act, then, the Court has to look into the object of the two
enactments and if the object is also more or less, one and the
same, the Court shall hold that the Act which is subsequent in
point of time shall have overriding effect over the Act which is
earlier in point of time.”
29. The Delhi High Court in Independent Thought v. Union of
India [(2023) 2 HCC (Del) 634], addressing the issue concerning the
overriding effect of Section 19 of the POCSO Act over the
restrictions imposed by Section 198(1) read with Section 198(3) of
the Cr.PC held that Section 19 of the POCSO Act, read with Section
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21, shall override the restrictions imposed by Section 198(1), read
with Section 198(3) of the Cr.PC.
The amendment to the Indian Penal Code, Code of Criminal
Procedure and POCSO Act by Act 13 of 2013 and the corresponding
provisions in the BNSS, 2023
30. In the light of the Criminal Law (Amendment) Act, 2013
(Act 13 of 2013), amendments were incorporated into the Indian
Penal Code, the Indian Evidence Act and the POCSO Act. By Act 13
of 2013, in the Code of Criminal Procedure, the following
explanation was incorporated to sub-section (1) of Section 197 of
the Cr.PC. The explanation reads thus:
“197. Prosecution of Judges and public servants.-
xxx xxx xxx
Explanation.–for the removal of doubts it is hereby
declared that no sanction shall be required in case of a
public servant accused of any offence alleged to have been
committed under section 166A, section 166B, section 354,
section 354A, section 354B, section 354C, section 354D,
section 370, section 375, section 376, section 376A, section
376C, section 376D or section 509 of the Indian Penal Code
(45 of 1860)”
31. The Act 13 of 2013 also introduced Section 42A to the
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POCSO Act. Section 42A reads thus:
“Section 42A – Act not in derogation of any other law.- The
provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for the time
being in force and, in case of any inconsistency, the
provisions of this Act shall have overriding effect on the
provisions of any such law to the extent of the
inconsistency.”
32. Act 22 of 2018 substituted Sections 376A, 376AB, 376C,
376D, 376DA and 376DB in the Explanation to Section 197 Cr.PC for
“Sections 376A, 376C and section 376D”.
33. The section corresponding to Section 197 of the Cr.PC in
the BNSS, 2023 is Section 218. The third proviso to Section 218 of
the BNSS is the provision corresponding to the Explanation to
Section 197 Cr.PC. The third proviso reads thus:
“218. Prosecution of Judges and public servants.-
xxx xxx xxx
Provided also that no sanction shall be required in
case of a public servant accused of any offence alleged to
have been committed under section 64, section 65, section
66, section 68, section 69, section 70, section 71, section 74,
section 75, section 76, section 77, section 78, section 79,
section 143, section 199 or section 200 of the Bharatiya Nyaya
Sanhita, 2023.”
34. The legislature only added Section 69 of the BNS, 2023
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(sexual intercourse by employing deceitful means etc.) an offence
of the same nature, in the exception provided in Section 218 BNSS.
35. The above extracted legislations manifest that:
(i) Those legislations were made after
appreciating the interplay of all the four
Acts, that is, the Indian Penal Code, the Code
of Criminal Procedure, the Indian Evidence
Act and the POCSO Act.
(ii) Even though the legislature was conscious
of the immunity granted to the public
servant under Section 197 Cr.PC and the
provisions of the POCSO Act, the legislature
did not incorporate an offence under Section
19 read with Section 21 of the POCSO Act, as
to carve the same out of Section 197 of the
Cr.PC or Section 218 of the BNSS as an
exception to the applicability of the
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immunity provided under those sections.
36. Section 42A of the POCSO Act also indicates that the Act
shall operate not in derogation of the provisions of the Code of
Criminal Procedure. The non-derogative provision in Section 42A of
the POCSO Act expresses the legislative intent not to detract from
or abrogate the provisions of the Code of Criminal Procedure
altogether in its applicability to the offences under the POCSO Act.
37. The principle of the subject matter test and the particular
perspective test makes it clear that the operation of the non-
obstante clause in Section 19 of the POCSO Act is restricted to the
overlapping subject matters prescribed in the Code of Criminal
Procedure or in the BNSS. Section 42A of the POCSO Act has
restricted the operation of the non-obstante clause to the subject
matters over which the special law shall have an overriding effect
on the general law.
38. Section 197 of the Cr.PC and Section 218 of the BNSS are
intended to operate as a safeguard against public servants from
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being dragged into vexatious proceedings for having discharged
their official duties. The legislature appears to have perceived that
the defence of having committed the offences in the course of
discharge of duty is not available in most of the offences under the
POCSO Act. Such defences are available only in cases of physical
examination by medical practitioners, physical education teachers,
etc. In those cases, it is possible for the court to adjudicate the
applicability of the safeguard extended by Section 197 of the Cr.PC
after considering the facts.
39. The offences under Chapter V of the POCSO Act are not
carved out as an exception to Section 197 of the Cr.PC or in Section
218 of the BNSS.
40. Applying the lex posteriori rule, it is manifest that the
parliament has consciously did not include the offence under
Section 19 read with Section 21 of the POCSO Act as an exception to
Section 197 of the Cr.PC or under Section 218 of the BNSS.
41. The resultant conclusion is that the non-obstante clause
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in Section 19 of the POCSO Act is not inconsistent with the subject
matter of Section 197 of the Cr.PC or Section 218 of the BNSS and
does not exclude the applicability of Section 197 of the Cr.PC or
Section 218 of the BNSS.
ISSUE NO.2
42. The following are the conditions to be satisfied for
extending the protection of Section 197 of the Cr.PC or Section 218
of the BNSS:
(A) The accused was a Judge, Magistrate or public
servant, not removable from his office by or with
the sanction of the Government.
(B) He faces any offence alleged to have been
committed while acting or purporting to act in the
discharge of his official duties.
43. In Dr. Hori Ram Singh v. Crown (1939 SCC OnLine FC 2),
the Federal Court considered the necessity of seeking sanction
under the relevant provisions of the Government of India Act, 1935.
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The Federal Court held that the necessity for sanction must be
determined with reference to the nature of the allegations made
against the public servant. The Court observed that if the
allegations cannot be held to relate to any act done or purporting to
be done in the execution of his duty the consent of the authorities
would not be necessary for the institution of the proceedings. The
Court held that the act/omission should be attributable to the
official character of the person doing it. The Court rejected the
requirement of sanction in those cases in which the official
character of the person provided him an opportunity for
commission of crime.
44. In H.H.B. Gill v. King (1948 SCC OnLine PC 10) the Privy
Council approved the ratio laid down in Dr. Hori Ram Singh (supra)
and laid down the proposition that a public servant can only be said
to act or purport to act in the discharge of his official duty, if his act
or omission is such as to lie within the scope of his official duty.
45. In Amrik Singh v. State of Pepsu (1955 SCC OnLine SC 102),
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the Supreme Court laid down the proposition that if the act
complained of is directly concerned with his official duties so that, if
questioned, it could be claimed to have been done by virtue of the
office, and then sanction is necessary.
46. In P. Arulswami v. State of Madras [(1967) 1 SCR 201] a
Three-Judges Bench of the Supreme Court after referring to Dr.
Hori Ram Singh (supra), H.H.B. Gill (supra) held that the act of
criminal misappropriation was not committed by the accused while
he was acting or purporting to act in discharge of his official duties
and the offence had no direct connection with the duties of the
accused as a public servant and his official status only furnished
him with the opportunity to commit the offence.
47. A Constitution Bench of the Supreme Court in Matajog
Dobey v. H.C. Bhari, (AIR 1956 SC 44) while holding that Section 197
Cr.PC was not violative of the fundamental rights under Article 14 of
the Constitution of India observed thus:
“15…..Public servants have to be protected from
harassment in the discharge of official duties while
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35ordinary citizens not so engaged do not require this
safeguard. It was argued that Section 197, Criminal
Procedure Code vested an absolutely arbitrary power in
the Government to grant or withhold sanction at their
sweet will and pleasure, and the legislature did not lay
down or even indicate any guiding principles to control the
exercise of the discretion. There is no question of any
discrimination between one person and another in the
matter of taking proceedings against a public servant for
an act done or purporting to be done by the public servant
in the discharge of his official duties. No one can take
such proceedings without such sanction….”
48. The Supreme Court in Matajog Dobey (supra) on the test
to be adopted for finding out whether Section 197 of the Code was
attracted or not observed thus:
“17. Slightly differing tests have been laid down in the
decided cases to ascertain the scope and the meaning of
the relevant words occurring in Section 197 of the Code;
‘any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official
duty’. But the difference is only in language and not in
substance. The offence alleged to have been committed
must have something to do, or must be related in some
manner, with the discharge of official duty. No question of
sanction can arise under Section 197, unless the act
complained of is an offence; the only point to determine is
whether it was committed in the discharge of official duty.
There must be a reasonable connection between the act
and the official duty. It does not matter even if the act
exceeds what is strictly necessary for the discharge of the
duty, as this question will arise only at a later stage when
the trial proceeds on the merits. What we must find out is
whether the act and the official duty are so interrelated
that one can postulate reasonably that it was done by the
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36accused in the performance of the official duty, though
possibly in excess of the needs and requirements of the
situation.”
49. In Pukhraj v. State of Rajasthan [(1973) 2 SCC 701], the
Supreme Court held thus:
“2…..While the law is well settled the difficulty really
arises in applying the law to the facts of any particular
case. The intention behind the section is to prevent public
servants from being unnecessarily harassed. The section
is not restricted only to cases of anything purported to be
done in good faith, for a person who ostensibly acts in
execution of his duty still purports so to act, although he
may have a dishonest intention. Nor is it confined to cases
where the act, which constitutes the offence, is the official
duty of the official concerned. Such an interpretation
would involve a contradiction in terms, because an offence
can never be an official duty. The offence should have
been committed when an act is done in the execution of
duty or when an act purports to be done in execution of
duty. The test appears to be not that the offence is capable
of being committed only by a public servant and not by
anyone else, but that it is committed by a public servant in
an act done or purporting to be done in the execution of
duty. The section cannot be confined to only such acts as
are done by a public servant directly in pursuance of his
public office, though in excess of the duty or under a
mistaken belief as to the existence of such duty. Nor need
the act constituting the offence be so inseparably
connected with the official duty as to form part and parcel
of the same transaction. What is necessary is that the
offence must be in respect of an act done or purported to
be done in the discharge of an official duty. It does not
apply to acts done purely in a private capacity by a public
servant. Expressions such as the ‘capacity in which the act
is performed’, ‘cloak of office’ and ‘professed exercise of
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37the office’ may not always be appropriate to describe or
delimit the scope of section. An act merely because it was
done negligently does not cease to be one done or
purporting to be done in execution of a duty…..”
50. In Rakesh Kumar Mishra v. State of Bihar [(2006) 1 SCC
557], the Supreme Court reiterating the earlier decisions, held thus:
“12….The section has, thus, to be construed strictly, while
determining its applicability to any act or omission in the
course of service. Its operation has to be limited to those
duties which are discharged in the course of duty. But
once any act or omission has been found to have been
committed by a public servant in the discharge of his duty
then it must be given liberal and wide construction so far
its official nature is concerned….”
51. In D. Devaraja v. Owais Sabeer Hussain (2020) 7 SCC 695],
the Supreme Court elucidated the import of Section 197 of the
Cr.PC. The Supreme Court held that the protection under Section
197 of the Cr.PC is available only when the alleged act/omission
committed by the public servant is reasonably connected with the
discharge of his official duty and the offence committed outside the
scope of his duty will certainly not require sanction.
52. The principles that crystallised from the aforesaid
precedents are:
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(a) The application of Section 197 of the Cr.PC or
Section 218 of the BNSS varies from facts to
facts.
(b) The act or omission must have a reasonable
connection with the discharge of official duty.
(c) It should come within the scope of his official
duty.
(d) Section 197 of the Cr.PC does not apply to acts
done purely in a private capacity by a public
servant.
(e) The protection of Section 197 of the Cr.PC
applies even if the act/omission is committed in
excess of his official duty.
53. 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
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in his private capacity.
The present case
54. The petitioner was the chairman of the Child Welfare
Committee, Thrissur during 2009 to 2019. The case of the victim
came to the CWC from Child Line through a letter dated 05.02.2014
addressing the Chairman, CWC. The details of the abuse were not
mentioned in the letter. There was a general mention of the abuse.
On the very next day, the petitioner informed the matter to the
police over the telephone. He made an endorsement to the effect
“directed to police” sd/- 06.02.2014 on the letter (Anx.2).
55. 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.
56. True that there are positive assertions against the
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petitioner. Annexure 2 and the other materials produced by the
accused show that the petitioner informed the police regarding the
abuse.
57. I am conscious of the principle that when a prayer for
quashing the final report is made, the Court has to only consider
whether the allegations disclose the commission of the cognizable
offence or not and the Court is not required to consider on merits
whether or not the allegations make out a cognizable offence.
58. It is equally settled that if the High Court is fully satisfied
that the materials produced by the accused are such that would
lead to the conclusion that his defence is based on sound,
reasonable and indubitable facts or the same rule out or displace
the assertions in the final report or the complaint or the materials
relied on by the accused reject and overrule the veracity of the
allegations, the judicial conscience of the High Court would
persuade to exercise its power under Section 482 of the Cr.P.C and
to quash such criminal proceedings to avoid or to prevent the
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abuse of the process of the court and secure the ends of justice
{Vide: Rajiv Thapar v. Madan Lal Kapoor [(2013) 3 SCC 330],
Prashant Bharti v. State (NCT of Delhi) [(2013) 9 SCC 293] and Divya
S Rose v. State of Kerala [2023 (7) KHC 132]}.
59. The materials relied on by the petitioner overrule the
veracity of the allegations against him in the final report. The
prosecution failed to place any material to refute those materials
relied on by the petitioner. Therefore, the proceedings initiated
against him would result in the abuse of the process of the Court
and would not serve the ends of justice.
60. In the result, Annexure 1 Final Report in Crime
No.1130/2019 of Ollur Police Station and all further proceedings
pursuant to it, as against the petitioner, stand quashed. It is made
clear that the observations made in this order are restricted to the
petitioner, and the Trial Court may proceed with the other accused
in accordance with the law.
Non-disclosure of the identity of the victim
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61. The learned Amicus Curiae, after appreciating the records
annexed to the petition, submitted that the final report revealed the
identity of the victim that goes against the very object of the
mandate of the non- disclosure of the identity under the POCSO
Act.
62. Sub-section (7) of Section 33 of the POCSO Act mandates
that the Special Court shall ensure that the identity of the child is
not disclosed at any time during the course of investigation or trial.
63. As per Section 228-A of IPC, whoever prints or publishes
the name or any matter which may make known the identity of any
person against whom an offence under section 376 is alleged or
found to have been committed shall be punished with imprisonment
of either description for a term which may extend to two years and
shall also be liable to fine. Under Section 228-A, disclosure of the
identity of the victim is permitted only under certain special
circumstances provided therein. Section 23(1) of the POCSO Act
prevents the media from making any report or presenting
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comments on any child from any form of media or studio or
photographic facilities without having complete and authentic
information which may have the effect of lowering his reputation or
infringing upon his privacy. The Section further prevents the
disclosure of the identity of a child, including his name, address and
photograph, family details, neighbourhood, or any other particulars
that may lead to the disclosure of the identity of the child. As per
the said provision, the disclosure of identity is allowed only when
the Special Court competent to try the case under the Act permits it
to do so.
64. Sections 66 and 67 of the Information Technology Act,
2000 make publishing or transmitting obscene materials or
sexually explicit materials or evidently doing any act violating the
privacy of an individual punishable. Section 74 of the Juvenile
Justice Act also prohibits disclosure of identity of children.
65. In Nipun Saxena v. Union of India [(2019) 2 SCC 703] the
Supreme Court issued the following directions:
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44“50. In view of the aforesaid discussion, we
issue the following directions:
50.1. No person can print or publish in print,
electronic, social media, etc. the name of the victim or
even in a remote manner disclose any facts which can
lead to the victim being identified and which should
make her identity known to the public at large.
50.2. In cases where the victim is dead or of
unsound mind the name of the victim or her identity
should not be disclosed even under the authorisation
of the next of kin, unless circumstances justifying the
disclosure of her identity exist, which shall be decided
by the competent authority, which at present is the
Sessions Judge.
50.3. FIRs relating to offences under Sections
376, 376-A, 376- AB, 376-B, 376-C, 376-D, 376-DA, 376-
DB or 376-E IPC and the offences under POCSO shall
not be put in the public domain.
50.4. In case a victim files an appeal under
Section 372 CrPC, it is not necessary for the victim to
disclose his/her identity and the appeal shall be dealt
with in the manner laid down by law.
50.5. The police officials should keep all the
documents in which the name of the victim is
disclosed, as far as possible, in a sealed cover and
replace these documents by identical documents in
which the name of the victim is removed in all records
which may be scrutinised in the public domain.
50.6. All the authorities to which the name of the
victim is disclosed by the investigating agency or the
court are also duty- bound to keep the name and
identity of the victim secret and not disclose it in any
manner except in the report which should only be sent
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in a sealed cover to the investigating agency or the
court.
50.7. An application by the next of kin to
authorise disclosure of identity of a dead victim or of a
victim of unsound mind under Section 228-A(2)(c) IPC
should be made only to the Sessions Judge concerned
until the Government acts under Section 228- A(1)(c)
and lays down criteria as per our directions for
identifying such social welfare institutions or
organisations.
50.8. In case of minor victims under POCSO,
disclosure of their identity can only be permitted by the
Special Court, if such disclosure is in the interest of the
child.
50.9. All the States/Union Territories are
requested to set up at least one “One-Stop Centre” in
every district within one year from today.”
66. 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.
67. The State Police Chief is directed to see that the mandate
of the POCSO Act that the identity of the victim is not revealed is
scrupulously followed by the members of the police force.
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The lacuna in sub-section (5) of Section 19 of the POCSO Act.
68. The learned Amicus Curiae brought to the notice of the
Court that the lacuna in sub-section (5) of Section 19 of the POCSO
Act requires to be addressed. The learned Amicus Curiae
submitted that whereas sub-section (1) of Section 19 of the POCSO
Act casts a duty on even a child to report the commission of an
offence/apprehension to commit an offence, the protection
extended by sub-section (5) of Section 19 of the POCSO Act is
restricted to the victim and not to the child reporting the
offence/apprehension to commit the offence. The professed
mandate of the POCSO Act is that the safeguard under sub-section
(5) of Section 19 of the POCSO Act deserves to be extended to a
child who is reporting the commission of an offence/apprehension
of commission of an offence. If such protection is not accorded, the
very object of the Act would be defeated. Therefore, it is made
clear that the safeguard under sub-section (5) of Section 19 of the
POCSO Act is applicable to the child who is reporting the
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commission of an offence/apprehension of the commission of an
offence.
69. The Criminal M.C is disposed of as above.
Before parting with the matter, this Court places on record its
profound appreciation to the learned counsel Sri.M.K.Sreegesh, for
his valuable assistance as Amicus Curiae.
Sd/-
K.BABU,
JUDGE
KAS
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APPENDIX OF CRL.MC 5970/2021
PETITIONER ANNEXURES
Annexure 1 THE CERTIFIED COPY OF THE FINAL REPORT
IN CRIME NO.1130/2019
Annexure 2 CERTIFIED COPY OF THE LETTER ADDRESSED
TO THE CHAIRMAN, CWC THRISSUR DATED
05.02.2014
Annexure 3 THE CERTIFIED COPY OF THE CASE FILE IN
NO.CWC/TSR/CSA-6/2014, ISSUED TO P.O.
GEORGE FROM THE CHILD WELFARE
COMMITTEE, THRISSUR DISTRICT, ALONG
WITH COVERING LETTER DATED 16.06.2020
Annexure 4 A TRUE COPY OF THE LETTER DATED
26.02.2014 OF CHILD WELFARE COMMITTEE,
THRISSUR DISTRICT