Disposed

Sreelatha K.V. v. State of Kerala

Kerala HC4 Sept 2019Crl.MC/309/2019

Case brief

AI extract

What is this about?

A headmistress sought quashing of prosecutions for failing to report alleged sexual assaults by a teacher. The court upheld joint trial with the principal accused and declined to determine disputed knowledge under inherent jurisdiction. Quashing was refused, with liberty to seek discharge before framing of charges.

What did the court decide?

Liberty to seek discharge before framing of charges; the Special Court was directed to hear both sides and endeavour to decide within six weeks of the application.

Sreelatha K.V. Vs State of Kerala — Child Sexual Offences (POCSO) | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941

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Crl.MC.No.309 OF 2019(G)

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AGAINST THE ORDER/JUDGMENT IN SC 87/2015 OF DISTRICT COURT & SESSIONS COURT,THALASSERY

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CRIME NO.159/2014 OF Peringome Police Station , Kannur

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PETITIONER/S:

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SREELATHA K.V. AGED 42 YEARS W/O. T. CHANDRAN, PALERI HOUSE, PERINTHATTA NORTH, ARAVANCHAL P.O., KANNUR DISTRICT.

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BY ADVS. SRI.M.SASINDRAN SRI.P.K.SUBHASH

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.159/2014 OF PERINGOME POLICE STATION, KANNUR DISTRICT)

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SRI.SURESH BABU THOMAS, P.P SRI TOM JOSE PADINJAREKARA, AMICUS CURIAE

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH Crl.MC.5010/2019(E), Crl.MC.5013/2019(F), Crl.MC.5078/2019(D), Crl.MC.5080/2019(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941

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Crl.MC.No.5010 OF 2019(E)

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AGAINST THE ORDER/JUDGMENT IN SC 90/2015 OF DISTRICT COURT & SESSIONS COURT,THALASSERY

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CRIME NO.162/2014 OF Peringome Police Station , Kannur

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PETITIONER/S:

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SREELATHA K.V., AGED 42 YEARS W/O.T.CHANDRAN, PALERI HOUSE, PERINTHATTA NORTH, ARAVANCHAL P.O., KANNUR DISTRICT.

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BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN

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RESPONDENT/S:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031(CRIME NO.162/2014 OF PERINGOME POLICE STATION, KANNUR DISTRICT).

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SRI.SURESH BABU THOMAS, P.P SRI TOM JOSE PADINJAREKARA, AMICUS CURIAE

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH Crl.MC.309/2019(G), Crl.MC.5013/2019(F), Crl.MC.5078/2019(D), Crl.MC.5080/2019(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941

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Crl.MC.No.5013 OF 2019(F)

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AGAINST THE ORDER/JUDGMENT IN SC 89/2015 OF DISTRICT CONSUMER REDRESSAL FORUM, THALASSERY

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CRIME NO.161/2014 OF Peringome Police Station , Kannur

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PETITIONER/S:

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SREELATHA.K.V AGED 42 YEARS W/O T.CHANDRAN, PALERI HOUSE, PERINTHATTA NORTH, ARAVANCHAL P.O.KANNUR DISTRICT

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BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031, (CRIME NO 161/2014 OF PERINGOME POLICE STATION, KANNUR DISTRICT)

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SRI.SURESH BABU THOMAS, P.P SRI TOM JOSE PADINJAREKARA, AMICUS CURIAE

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH Crl.MC.309/2019(G), Crl.MC.5010/2019(E), Crl.MC.5078/2019(D), Crl.MC.5080/2019(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941

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Crl.MC.No.5078 OF 2019(D)

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AGAINST THE ORDER/JUDGMENT IN SC 88/2015 OF SPECIAL COURT UNDER POCSO ACT, KANNUR

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CRIME NO.160/2014 OF Peringome Police Station , Kannur

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PETITIONER/S:

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SREELATHA.K.V AGED 42 YEARS W/O.T.CHANDRAN, PALERI HOUSE, PERINTHATTA NORTH, ARAVANCHAL.P.O., KANNUR DISTRICT

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BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN

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RESPONDENT/S:

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031(CRIME NO.160/2014 OF PERINGOME POLICE STATION, KANNUR DISTRICT)

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R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION

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OTHER PRESENT:

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SRI.TOM JOSE (PADINJAREKARA), AMICUS CURIAE, SRI.SURESH BABU THOMAS, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH Crl.MC.309/2019(G), Crl.MC.5010/2019(E), Crl.MC.5013/2019(F), Crl.MC.5080/2019(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941

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Crl.MC.No.5080 OF 2019(D)

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AGAINST THE ORDER/JUDGMENT IN SC 91/2015 OF DISTRICT COURT & SESSIONS COURT,THALASSERY

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CRIME NO.166/2014 OF Peringome Police Station , Kannur

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PETITIONER/S:

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SREELATHA.K.V, AGED 42 YEARS W/O.T.CHANDRAN, PALERI HOUSE, PERINTHATTA NORTH, ARAVANCHAL.P.O., KANNUR DISTRICT.

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BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN

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RESPONDENT/S:

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STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031(CRIME NO.166/2014 OF PERINGOME POLICE STATION, KANNUR DISTRICT)

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BY SRI.SURESH BABU THOMAS, PP SRI.TOM JOSE PADINJAREKARA, AMICUS CURIAE

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.09.2019, ALONG WITH Crl.MC.309/2019(G), Crl.MC.5010/2019(E), Crl.MC.5013/2019(F), Crl.MC.5078/2019(D), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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(C.R)

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ALEXANDER THOMAS, J.

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==================

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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==================

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Dated this the 4^th day of September, 2019

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O R D E R

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The above five Criminal Miscellaneous Cases, viz., Crl.M.C.Nos.

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309, 5010, 5013, 5078 and 5080 of 2019 arise out of Crime Nos. 159/2014, 162/2014, 161/2014, 160/2014 and 166/2014 registered at Peringone Police Station and now the said criminal proceedings are pending as sessions case S.C.Nos.87/2015, 90/2015, 89/2015, 88/ 2015 and 91/2015 on the file of the Special Court (Addl. Sessions Court notified to deal with POCSO Cases), Thalassery, Kannur district. Accused No.1 in all the above five cases is a teacher of the ALP School, Perinthatta North (an aided school) and the allegation against him that he has committed sexual assault on various occasions from June, 2013 to January, 2014, on each of the five minor victim girls concerned in these cases, who are the students of the said school and A-1 has committed offences as per Sec. 9(f)(l)(m) read with 10 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The petitioner herein, who is the headmistress of the abovesaid school, has been arrayed as accused No.2 in each of these

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five cases and the allegation against her is that, though as the

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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headmistress of the school, she had knowledge about the commission of the abovesaid offences by A-1, who is a teacher in the above school, the petitioner (A-2) has not reported the commission of the said offence to the Police authorities concerned as mandated in Sec. 19(1) of the POCSO Act and therefore, she has committed offence punishable under Sec. 21(2) of the said Act. Accused No.3 in this case is said to be the person in charge of the help desk, who failed to report the commission of the abovesaid offence by A-1 to the authorities and has thereby committed the abovesaid offence punishable under Sec. 21(2) of the Act. Accused No.1 and accused No.3 in the above crimes are not parties in these cases. The State of Kerala has been arrayed as the sole respondent in the above Criminal Miscellaneous Cases filed under Sec.482 of the Code of Criminal Procedure seeking for quashment of the impugned criminal proceedings to the limited extent it is directed as against the petitioner herein (A-2). After the registration of the crime in each of these cases, the Police has filed separate final reports/charge sheets in each of these five cases, which has led to the pendency of the abovesaid Sessions Cases before the special sessions court notified to deal with the POCSO cases, Thalassery. It is the case of the petitioner that the abovesaid criminal

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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: 8 :-

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proceedings to the extent it is directed as against the petitioner herein (A-2) is not sustainable in law and that the prosecution has no case that the petitioner had witnessed the alleged act of sexual assault said to have been committed by A-1 and further that the petitioner has no knowledge about the commission of the offence, etc.

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The petitioner would point out that, even going by the admitted case of the prosecution, the only allegation raised as against the petitioner herein is that, she, as the headmistress of the school, has not reported about the commission of the abovesaid offences in each of these cases and that the prosecution has no case that the petitioner has done any act or omission so as to be directly or indirectly connected with the commission of the principal offence of sexual assault by the principal offender (A-1) and that the only allegation is that the petitioner has committed the secondary offence of not reporting the commission of offence by A-1 to the Police authorities concerned in spite of allegedly having knowledge about the said commission and that thereby she has committed the “secondary offence” punishable under Sec. 21(2) of the Act.

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One of the main contentions raised by the petitioner is that an offence in the nature as per Sec. 21(2) of the POCSO Act is

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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: 9 :-

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broadly akin to the offence as per Sec. 202 of the I.P.C. and is a “secondary offence” in comparison to the offence committed by the principal offender inasmuch as the offence alleged against the accused like the petitioner is that she has not reported the alleged commission of offence by the principal offender (A-1). Accordingly, it is contended by the petitioner that a person like the petitioner, who is accused of committing the secondary offence of not reporting the principal offence could be prosecuted only if it is established in a trial beyond reasonable doubt that the principal offence has been committed and that in the absence of a clear finding of conviction that the principal offender has committed the principal offence, there is no question of simultaneously prosecuting the “secondary offender” along with the principal offender. Reliance in that regard is placed by the petitioner mainly on the decisions of the Apex Court as in Harishchandrasing Sajjansinh Rathod (H.S.Rathod) & Anr. v. State of Gujarat [(1979) 4 SCC 502], para, 4, etc. In complementary to these aspects, the petitioner would further contend that in cases like this, joint trial of the accused, who is alleged to have committed the principal offence, along with other accused, who is said to have committed the secondary offence, is not permissible by any of the

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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: 10 :-

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provisions in the Cr.P.C. and that the only provision that may be pressed into service by the prosecution on the issue as to whether joint trial in such cases is permissible is the one as per Sec. 223(d) of the Cr.P.C. and that it cannot be contended that the principal offence of sexual assault allegedly committed by the principal accused and the secondary offence of not reporting the principal offence are offences committed in the course of the “same transaction” as understood in clause (d) of Sec.223 of the Cr.P.C. In that regard, the petitioner would place reliance on the Full Bench decision of the Madras High Court in the case in Seraje Narayana Bhatta & Ors. v. State [AIR 1949 Mad9 = 1949 CrLJ 80 = (1949) ILR Madras 220 = 1948 – 61 LW 536 = (1948) MLJ 138], the judgment of the Chhattisgarh High Court in the case in Kamal Prasad Patade v. State of Chhattisgarh & Ors. [2016 CrLJ 3759 = 2016 KHC 3937] as well as the judgment of the Madhya Pradesh High Court in Patnayak K.K. & Ors. v. State of M.P. [ 1999 CrLJ 4911 = 1999 KHC 2705].

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Yet another contention urged by the petitioner is that where the case of the prosecution is that a person concerned has not reported the commission of an offence under the POCSO Act despite

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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: 11 :-

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having knowledge about such commission, then the prosecution should have cogent accusations as well as materials to show that the accused like the petitioner did have knowledge about the commission of the principal offence of sexual assault by the principal accused and that despite that, he/she has not reported the said offence to the competent Police authorities concerned and it is only in such a case that it can be said that an offence for violation of Sec. 19(1) of the Act, which is punishable under Sec. 21(2) of the Act, is made out. In that regard the petitioner would mainly place reliance of the judgments of the Apex Court as in the case in Dr.Sr. Tessy Jose v. State of Kerala [2018 (3) KLT 934 (SC), paras 9, 10, etc.], A.S.Krishnan & Ors. v. State of Kerala [(2004) 11 SCC 576 paras 8, 9, 10, etc]. to contend that the requisite element of “knowledge” of the commission of the offence as envisaged in Sec. 19(1) of the Act is not mere information gathered by hearsay and that the ingredients of “knowledge” will be standing on an higher pedestal than “reason to believe”. Further that as the immunity to incur any civil or criminal liability for giving information to the Police as conceived in sub section (vii) of Sec. 197 could be claimed by the informant of the alleged offence only if the information is given in “good faith” for the

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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: 12 :-

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purpose of sub section (1) of Sec. 19 and that Sec. 52 of the I.P.C. stipulates that nothing can be said to be done or believed in “good faith”, which is done or believed without due care and attention and therefore, the person concerned, who receives information about the alleged commission of the offence, should take due care and attention to ascertain the prima facie veracity of the allegation regarding the commission of the offence and only after that satisfaction can the person concerned be said to have “ knowledge” of the commission of the offence as envisaged in Sec. 19(1) of the Act. That only in a case where the person concerned has the knowledge of the commission of the offence in that manner and still he/she does not report the commission of the offence to the competent authority concerned, then only the person concerned can be said to have incurred the criminal liability for violation of the obligation to report as per Sec. 19(1) of the Act, which is punishable as an offence under Sec. 21(2) of the Act. That in the instant case, the prosecution has no prima facie case the petitioner had the “ knowledge” of the alleged commission of the offence by the principal accused (A-1) and that therefore there is no question of making out the offence punishable under Sec. 21(2) of the Act, as far as it is pin pointed against the petitioner herein.

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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: 13 :-

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In view of the substantial importance of the questions raised in these matters, more particularly as the Chhattisgarh High Court has rendered a judgment, which is in favour of the petitioner, this Court, with the consent of the parties concerned, deemed it fit and proper to appoint Sri.Tom Jose Padinjarakkare, learned Advocate of this Court and the former Additional Director General (DG) of Prosecutions, as Amicus Curiae in this case, who has submitted detailed amcius curiae brief in this case for the assisting this Court.

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Heard Sri.M.Sasindran, learned Advocate, instructed by Sri.Satheesan Alakkadan, learned counsel appearing for the petitioner in these cases, Sri.Suresh Babu Thomas learned Addl. D.G. of Prosecutions-cum-Addl. State Prosecutor for the respondent State and Sri.Tom Jose Padinjarekkra, learned Amicus Curiae.

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The first two contentions urged by the petitioner as referred to herein above are interconnected and are complementary to each other. The petitioner's main argument in that regard is that in view of the dictum laid down by the Apex Court in the case in H.S. Rathod's case supra [(1979) 4 SCC 502] para 4, a person like the petitioner/accused, who is alleged to have committed the secondary offence of not reporting the principal offence committed by the

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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: 14 :-

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principal offender, can be prosecuted only if it is established that the principal offender has committed the principal offence and in the absence of a conviction finding about the commission of the principal offence, there is no question of simultaneously prosecuting an accused, who is alleged to have committed the secondary offence of not reporting to the Police authorities about the alleged commission of the principal offence. To deal with the contention raised by the petitioner on the basis of H.S.Rathod's case supra it may be pertinent to refer to the rudimentary facts in that case. In H.S.Rathod's case supra the Apex Court has dealt with a case where the principal offences alleged therein were those as per Sec. 331, 304 Part II, read with Sec. 149 of the I.P.C. and the secondary offence alleged therein was as per Sec.202 of the I.P.C. , which deals with “intentional omission to give information of offence by person bound to inform”. The Sessions Court acquitted all the accused persons. On appeal, the Gujarat High Court convicted the accused concerned for offence as per Sec. 202 of the I.P.C., but had maintained the rest of the order of acquittal passed by the Sessions Court. The State of Gujarat did not challenge the said judgment of the High Court before the Apex Court, whereas the appellant therein, who

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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was convicted for offence under Sec. 202 of the I.P.C. preferred the abovesaid criminal appeal as against his conviction under Sec. 202 of the I.P.C., which resulted in the judgment of the Apex Court in H.S. Rathod's case supra. Paragraph No.4 of the abovesaid judgment of the Apex Court in H.S. Rathod's case supra [(1979) 4 SCC 502, pp.504-505], reads as follows:

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“4. To sustain a conviction under the above quoted Section 202 of the Penal Code, it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed, (2) that the accused had intentionally omitted to give information respecting that offence, and (3) that the accused was legally bound to give that information. We have gone through the entire evidence bearing on the aforesaid offence under Section 202 of the Penal Code but have not been able to discern anything therein which may go to establish the aforesaid ingredients of the offence under Section 202 of the Penal Code. The offence in respect of which the appellants were indicted viz. having intentionally omitted to give information respecting an offence which he is legally bound to give not having been established, the appellants could not have been convicted under Section 202 of the Penal Code. It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main offence before making a person liable under this section. The offence under Section 304 (Part II) and the one under Section 331 of the Penal Code not having been established on account of several infirmities, it is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code. The High Court has also missed to notice that the word “whoever” occurring at the opening part of Section 202 of the Penal Code refers to a person other than the offender and has no application to the person who is alleged to have committed the principal offence. This is so because there is no law which casts a duty on a criminal to give information which would incriminate himself. That apart the aforementioned ingredients of the offence under Section 202 of the Penal Code do not appear to have been made out against the prosecution. There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed.”

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8. A reading of the abovesaid judgment, more particularly

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paragraph No.4 thereof, would make it clear that all what has been

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laid down by the Apex Court therein is that since the principal offence

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Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

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was not established, the appellants could not have been convicted under Sec. 202 of the I.P.C. In that regard, the Apex Court has categorically held therein that it is well settled that in a prosecution under Sec. 202 of the I.P.C. it is necessary for the prosecution to establish the main offence before making a person liable under an offence as per Sec. 202 of the I.P.C. Nowhere has the Apex Court held in that judgment that the prosecution of a person, who is accused to have committed the secondary offence as per Sec. 202 of the I.P.C. could be maintained only if the principal offender is already convicted of the principal offence, which the secondary offender in such cases is legally bound to give information or that simultaneous trial or prosecution of the principal offender and the secondary offender in such cases is legally impermissible. Moreover, a reading of the rudimentary factual aspects that arose in that criminal appeal in H.S.Rathod's case supra would make it clear that the only contention urged by the appellant therein was that since the principal offenders have been acquitted of the principal offences, the conviction of the appellant therein for the alleged commission of the secondary offence in not having furnished information about the commission of the principal offence is not permissible. So also, it is clear in that case that

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the appellant therein has not raised a contention, as the one raised by the present petitioner in these cases, regarding the impermissibility of simultaneous trial of the cases involving the principal offences as well as the secondary offences. Hence the judgment of the Apex Court in in H.S.Rathod's case supra is no authority for the abovesaid proposition canvassed by the petitioner that an accused like the petitioner, who is alleged to have committed only the secondary offence in not having reported or given information about the principal offence, can be prosecuted only if the prosecution has already secured conviction of the principal offender for the commission of the principal offence or that simultaneous trial of the cases involved in the principal offences and secondary offences is impermissible. In this regard, it may also be relevant to compare the provisions in Secs. 19 and 21 of the POCSO Act with certain other provisions of the general laws. Sec. 19 of the of the POCSO Act reads as follows:

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“Sec. 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 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

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(b) the local police.

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(2) Every report given under sub-section (1) shall be--

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(a) ascribed an entry number and recorded in writing;

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(b) be read over to the informant;

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(c) shall be entered in a book to be kept by the Police Unit.

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(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.

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(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.

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(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.

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(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.

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(7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1).”

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Sec. 21 of the POCSO reads as follows:

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“Sec. 21: Punishment for failure to report or record a case.- (1) Any person, who fails to report the commission of an offence under subsection (1) of Section 19 or Section 20 or who fails to record such offence under sub-section (2) of Section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.

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(2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of Section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.

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(3) The provisions of sub-section (1) shall not apply to a child under this Act.”

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Sec. 202 of the I.P.C. , which deals intentional omission

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to give information of offence by person bound to infirm, reads as

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follows:

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Sec.202: Intentional omission to give information of offence by person bound to inform.- Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.”

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In that regard, in connection with the offence as per Sec. 202 of the

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I.P.C., the provisions contained in Sec. 39 of the Cr.P.C. may also

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have relevance and the same provides as follows:

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“ Sec.39: Public to give information of certain offences. - (1) Every person, aware of the Commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely:--

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(i) Sections 121 to 126, both inclusive, and Section 130 (that is to say offences against the State specified in Chapter VI of the said Code);

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(ii) Sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code);

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(iii) Sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);

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(iv) Sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.);

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(v) Sections 302, 303 and 304 (that is to say, offences affecting life);

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(va) Section 364A (that is to say, offence relating to kidnapping for ransom, etc.);]

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(vi) Section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft);

¶159

(vii) Sections 392 to 399, both inclusive, and Section 402 (that is to say, offences of robbery and dacoity);

¶160

(viii) Section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);

¶161

(ix) Sections 431 to 439, both inclusive (that is to say, offence of mischief against property);

¶162

(x) Sections 449 and 450 (that is to say, offence of house-trespass);

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(xi) Sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass); and

¶166

(xii) Sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes),

¶167

shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such Commission or intention.

¶168

(2) For the purposes of this section, the term "offence" includes any act committed at any place out of India which would constitute an offence if committed in India.”

¶169

The learned counsel for the petitioner has brought to notice regarding various judgments of the Apex Court as in Palvinder Kaur v. State of Punjab [AIR 1952 SC 354- 3-Judges' Bench, para 15], Roshan Lal & Ors. v. State of Punjab [AIR 1965 SC 1413], Suleman Rahiman Mulani & Anr. v. State of Maharashtra [AIR 1968 SC 829 - 3 Judge's Bench, para 6], etc. which have dealt with the ingredients of requirements of the offence as per Sec. 201 of the I.P.C. (Causing disappearance of evidence of offence, or giving false information to screen offender). In Palvinder Kaur's case supra (AIR 1952 SC 354, para 14), the Apex Court has held that in order to establish a charge under Sec. 201 of the I.P.C., it is essential to prove that an offence has been committed and that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with the intent to screen the offender from legal punishment causes the evidence

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: 21 :-

¶172

thereof to disappear or gives false information respecting such offence knowing or having reason to believe the same to be false. It has been held in Roshan Lal's case supra [AIR 1965 SC 1413, para 13] the Apex Court has inter alia held that the word, “offence” appearing in first, second, third and fourth paragraphs of the provisions contained in Sec. 201 of the I.P.C. means some “real offence” which in fact has been committed, and not some offence, which the accused imagines has been committed. Further in Suleman Rahiman Mulani's case supra (AIR 1968 SC 829, para 6), it has again been reiterated by the Apex Court that to establish the charge under Sec.201 of the I.P.C. the prosecution must necessarily first prove that an offence has been committed, not merely a suspicion that it might have been committed and that the accused knowing or having reason to believe that such an offence had been committed and with the intent to screen the offender from legal punishment had caused the evidence thereof to disappear and proof of the commission of the offence is an essential requisite for bringing home the offence under Sec. 201 of the I.P.C.

¶173

In the light of the abovesaid categorical declaration made by the Apex Court in H.S. Rathod's case supra [(1979) 4 SCC 502,

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: 22 :-

¶176

para 4], it is well settled that in a prosecution under Sec. 202 of the I.P.C. it is necessary for the prosecution to establish that the main offence has been committed by the principal offender, before making a person liable for the secondary offence as per Sec. 202 of the I.P.C.

¶177

So the next matter to be examined is the inter connected issue as to whether joint trial of the persons accused to have committed the secondary offence as per Sec.21 of the POCSO Act, along with the “principal accused” who is alleged to have committed the main offence, is permissible or whether there is any legal embargo in that regard.

¶178

Sec. 31 of the POCSO Act deals with application of Code of Criminal Procedure, 1973, to proceedings before the special court and it is stipulated therein as follows:

¶179

“Sec.31: Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court .- Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.”

¶180

In view of the provisions contained in Sec. 31 of the POCSO Act, save

¶181

as otherwise provided in the said Act, the provisions of the Cr.P.C. including the provisions as to bail and bonds, shall apply to the proceedings before a special court. The provision contained in

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Cr.P.C. which deals with the scenario as to the persons, who may be

¶185

charged jointly is contained in Sec.223 of thereof. Sec. 223 of the

¶186

Cr.P.C. reads as follows:

¶187

“Sec.223: What persons may be charged jointly .- The following persons may be charged and tried together, namely:--

¶188

(a) persons accused of the same offence committed in the course of the same transaction;

¶189

(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;

¶190

(c) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months;

¶191

(d) persons accused of different offences committed in the course of the same transaction;

¶192

(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;

¶193

(f) persons accused of offences under Sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;

¶194

(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:

¶195

Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate or Court of Session may, if such persons by an application in writing, so desire, and if he or it is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.”

¶196

The issue of joint trial of a person, who is accused to have

¶197

committed the secondary offence as per Sec. 21 (2) of the POCSO Act

¶198

along with the principal accused, who is alleged to have committed

¶199

the main offence of sexual assault, etc. is to be primarily decided on

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: 24 :-

¶202

the basis of the issue as to the applicability of clause (d) of Sec. 223 of the Cr.P.C., wherein it has been stipulated that persons accused of different offences committed in the course of the same transaction may be charged and tried together. The expression, ' same transaction ' as occurring in Sec. 223 of the Cr.P.C. has also been used in provisions as in Sec. 220(1) of the Cr.P.C. The Apex Court in the decision in Mohan Baitha v. State of Bihar [(2001) 4 SCC 350, pp.354-355, para 4] and Anju Chaudhary v. State of U.P. & Anr. [(2013) 6 SCC 384, pp.414, para 43] has held that the abovesaid expression “same transaction” from its very nature is incapable of an exact definition and it is not intended to be interpreted in any artificial or technical sense and the common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be on transaction. Further that it is not possible to enunciate any formula of universal application for the purpose of determining whether two or more actions constitute the same transaction and such things are to be gathered from the circumstances of a case given indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. That where two incidents are of different times with

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: 25 :-

¶205

involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it may not possible for the court to take a view that they form part of the same transaction and therefore the issue as to whether the various offences concerned are committed in the same transaction is to be decided purely as a question of fact on such criteria. The Apex Court has held in Anju Chaudhary's case [(2013)6 SCC 384, p.414, para 45] that for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or the cause and effect or as principal and subsidiary, so as to result in one continuous action and where there is commonality of purpose or design or where there is a continuity of action, etc, then all those persons involved can be accused of the same or different offences “committed” in the course of the same transaction”. In this context, it is also relevant to note that the Apex Court in the judgment in Shankar KisanraoKhade v. State of Maharashtra [(2013) 5 SCC 546, pp.581, 583, after mentioning in paragraph 71 thereof about the provisions contained in Sec. 21 POCSO Act, has also inter alia observed in para 77.6 thereof that the non-reporting of the crime by

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¶208

anybody, after having come to know that a minor child below the age of 18 years was subjected to any sexual assault, is a serious crime and by not reporting, they are screening the offenders from legal punishment and hence be held liable under the ordinary criminal law and prompt action be taken against them, in accordance with law, etc. Further it has been held in para 73 thereof that while dealing with the issues of child abuse, the test to be adopted is the best interest of child standard and since the best interest of the child is paramount and not the interest of the perpetrator of the crime, the approach should be child centric. Chapter VIII of the POCSO Act deals with the procedure and powers of the special court and recording of evidence, wherein Secs.33 to 38 thereof have been included and Sec. 33(5)of the Act mandates that the special court shall ensure that the child is not called repeatedly to testify in the court.

¶209

The petitioner has mainly relied on the judgment of the Full Bench of the Madras High Court in Seraje Nararayan Batta's case supra [(1948) 2 MLJ = 1949 CrLJ 80], the judgment of the Chhattisgarh High Court in Kamal Prasad Patade v. State of Chhattisgarh & Ors. [2016 CrLJ 3759 = 2016 KHC 3937], judgment of the Madhya Pradesh High Court in Patnayak K.K. &

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: 27 :-

¶212

Ors. v. State of M.P . [1999 CrLJ 4911 = 1999 KHC 2705] and In Re: Seraje Narayana Bhatta & Ors. [AIR 1949 Mad9 = 1949 CrLJ 80 = (1949) ILR Madras 220 = 1948 – 61 LW 536 = (1948) MLJ 138].

¶213

In the case in Patnayak K.K. & Ors. v. State of M.P.

¶214

[1999 CrLJ 4911 = 1999 KHC 2705] the Madhya Pradesh High Court has inter alia held in para 3 thereof that an offence in the nature of Sec. 202 of the I.P.C. regarding intentional omission to give information of offence by person bound to inform, cannot be tried along with the charge under Sec. 306 or 498A of the I.P.C. as it does not fall under Sec. 223 of the Cr.P.C. or with any other provision thereof so as to be tried jointly.

¶215

Chhattisgarh High Court in the case in Kamal Prasad Patade v. State of Chhattisgarh & Ors. [2016 CrLJ 3759 = 2016 KHC 3937] has held in para 17 thereof that for prosecution under Sec. 21(2) of the POCSO Act, it is necessary for the prosecution to establish first the commission of the main offence of sexual assault, etc., before making the person liable under Sec.21(2) of the POCSO Act, as the prosecution has to firstly establish beyond doubt in the trial court that the principal offence of sexual offence, etc. has been committed

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¶218

by the accused person concerned and only if a finding is recorded by the jurisdictional criminal court convicting the said accused therein for offences of sexual assault as in Secs. 4 and 6 of the POCSO and then to establish that the co-accused had exclusive knowledge of such an offence having been committed by the principal accused under the POCSO Act and despite such knowledge, he failed to report the matter under Sec. 19(1) of the POCSO Act to the competent authority including the local Police Station, etc. It has also been held by the Chhattisgarh High Court in para 29 of the said case that the prosecution of the petitioner therein was accused for not reporting commission of offence of sexual assault by the co-accused under Secs. 4 and 6 of the POCSO Act, is unsustainable as the trial of the principal accused for the principal offence was still pending consideration, etc. In other words, the Chhattisgarh High Court has held in Kamal Prasad Patade's case supra that joint trial of a person, who is alleged to have committed offence as per Sec. 21(2) of the POCSO Act, is not legally permissible along with the prime accused persons, who are alleged to have committed the offence of sexual assault/sexual harassment by the principal accused, and only after conviction in respect of the principal offences, can the prosecution of

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: 29 :-

¶221

the person, who is alleged to have committed the offence as per Sec. 21 of the Act is permissible, etc.

¶222

Now it may be pertinent to refer to some of the rulings referred to by the petitioner. In Seraje Narayana Bhatta & Ors. v. State [AIR 1949 Mad9 = 1949 CrLJ 80 = (1949) ILR Madras 220 = 1948 – 61 LW 536 = (1948) MLJ 138], the Madras High Court has dealt with a case where accused No.1 and other accused Nos.2 to 4 were also accused of the offence as per Sec.201 of the I.P.C. (Causing disappearance of evidence of offence) inasmuch as they had allegedly conducted cremation of the dead body of the deceased victim for destruction of the evidence and all the accused persons therein were jointly tried in the same trial for charges as per Sec. 201 (causing disappearance of evidence), etc. The Madras High Court has taken the view in the abovesaid decision in Seraje Narayana Bhatta's case supra that since accused 2 to 4 have not been charged for the offence as per Sec. 302 of the I.P.C., they could not have been jointly tried along with A-1, who was alleged to have committed the principal offence as per Sec. 302 of the I.P.C., on the premise that in the facts and circumstances of that case, the offence as per Sec. 201 of the I.P.C. said to have been committed by A-2 to A-4 and the offence

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: 30 :-

¶225

as per Sec. 302 of the I.P.C. committed by A-1 cannot be said to have been committed in the course of the same “ transaction ”, as envisaged in Sec. 239(b) Criminal Procedure Code, 1898 [Old Code – which corresponds to Sec. 223(d) of the present Code]. In the case in Babulal Chaukhani v. King Emperor [AIR 1938PC 130 = (1938)1-MLJ647], the Privy Council dealt with a case, where the accused persons were charged with the offence as per Sec. 120B of the I.P.C. (conspiracy) inasmuch as they had conspired together in the commission of theft of electricity and that thereby they have also committed the offence of theft of electricity under Sec.39 of the Electricity Act, 1910. The conviction rendered by the trial court was challenged before the High Court and in appeal, the High Court had set aside the conviction of the offence for conspiracy. In the facts of the said case, it was held that separate thefts committed by the accused persons could be treated in that case as forming part of the same transaction only if they were unified as being overt acts done in pursuance of a conspiracy. It was therefore contended that since in appeal the conviction for offence as per Sec.120 of the I.P.C. (conspiracy) was set aside, the very framing of the joinder of charges in that case involving accused persons who had committed separate

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¶228

thefts by the conduct of joint trial, was vitiated, etc. The Privy Council in the aforecited Babulal Chaukhani's case s upra has upheld the view taken by the High Court in that case that the point of time for determining whether the joint trial is justified should be with reference to the time at which the charges are framed by the court and not at the later point of time of the final outcome of the trial. It was held therein that if the trial court had materials to be satisfied in framing joint charges, then the mere fact that subsequently, some of the accused persons have been acquitted of the offence of conspiracy as per Sec. 120B of the I.P.C., is no ground to contend that framing of the charges jointly for the offence of conspiracy and the separate thefts committed in pursuance of the said conspiracy is illegal, etc. The said decision of the Privy Council in Babulal Chaukhani v. King Emperor [AIR 1938PC 130] cannot be of any real assistance to the petitioner accused in the present cases. Whereas the legal position laid down therein by the Privy Council is that the legality and correctness of framing of joinder of charges which led to the conduct of joint trial is to be adjudged with reference to the materials available at the time of framing of charges. So it was held therein that the mere fact that some of the accused persons may have

¶229

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: 32 :-

¶231

been acquitted at the conclusion of the trial/appeal/revision, for one of the offences, which was ordered to be jointly tried with other offences, is no ground to impugn the very framing of charges at the earlier point of time.

¶232

In Begu v. King Emperor [1925 (48)MLJ 643 (PC)],

¶233

the Privy Council has dealt with a case of five accused persons, who have been charged with the offence as per Sec. 302 of the I.P.C. and two of them were convicted of that offence and the evidence had also established that the other three persons had assisted to remove the body knowing that a murder has been committed. But without any formal charge being made, the other 3 accused persons were convicted under Sec. 201 of the I.P.C. (causing disappearance of evidence). An objection was raised by the convicted accused that their conviction without a formal charge being made under Sec.201 of the I.P.C. is unsustainable, but the said objection was overruled by the Privy Council and their Lordships considered that the case was covered by Sec. 237 of the Cr.P.C. (Old Code) .

¶234

After hearing both sides, this Court with great respect is not in a position to be persuaded to accept the abovesaid contention of the petitioner based on the judgment of the Madras High Court in

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: 33 :-

¶237

Seraje Narayana Bhatta's case supra, inasmuch as the offences like acts done to cause disappearance of the evidence of offence like causing the disappearance of the dead body of the deceased victim in a murder case, is intimately and inextricably connected with the principal offence of murder of the said deceased victim as per Sec. 302 of the I.P.C. and generally such offences could be treated to have been committed in the course of the same transaction, as understood in Sec. 239(d) of the Old Code [corresponding to Sec. 223(d) of the present Code]. Merely because some of the accused persons, who have been charged with the offence as per Sec. 201 of the I.P.C. for causing the disappearance of evidence in respect of the principal offence, are not charged to have participated in the commission of the principal offence of murder, may not be the main basis to hold that these offences have not been committed in the course of the same transaction. But cases of that kind cannot be put in any straight jacket formula for joint trial and it all depends on the facts and attendant circumstances of each case. There could be exceptions to the abovesaid general approach and it may not be possible to lay down any straight jacket formula to determine as to whether such secondary offence and principal

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: 34 :-

¶240

offences have been committed in the course of the same transaction and determination of such issues would primarily depend upon the relevant facts and attendant circumstances of each case.

¶241

So also, this Court is not in a position to accept the abovesaid plea made by the petitioner on the basis of the aforectied judgment of the Madhya Pradesh High Court in KK Patnayak's case supra and that of the Chhattisgarh High Court in Kamal Prasad Patade's case supra. As categorically held by the Apex Court in a series of judgments as in Mohan Baitta's case supra [(2001) 4 SCC 350, para 4], Anju Chaudhary v. State of U.P. & Anr. [(2013) 6 SCC 384, paras 43 to 45], etc. it is not possible to enunciate any formula of universal application for the purpose of determining whether two or more offences are said to have been committed in the course of the same transaction. The expression, “same transaction” from its very nature is incapable of any exact and precise definition and it cannot be interpreted in any artificial or technical sense and common sense in the ordinary use of language must decide whether or not in the very facts of a case, it can be held to be one transaction. Many factors like the one relating to proximity of time, unity or proximity of place, continuity of action, commonality of purpose or

¶242

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: 35 :-

¶244

design, etc. could be taken into account. If the contention raised by the petitioner is accepted, then it will create very many problems for the parties, more particularly the child victim, the witnesses, etc. which are never intended by the Legislature. Moreover, it has also to be borne in mind that Sec. 33(5) of the POCSO Act specifically mandates that the special court shall ensure that the child is not called repeatedly to testify in the court. Special procedures have been devised in provisions as in Sec.19 of the POCSO Act, whereby it has been mandated that in cases where a person has an apprehension that an offence under the POCSO Act is likely to be committed or where he has knowledge that such an offence has been committed, then such a person is under the legal obligation to provide such information to the authorities including the Special Juvenile Police Unit or the local Police, as the case may be. The aspects relating to recording of such information so reported are also dealt with in the other provisions contained in Sec.19. Based on such information regarding commission of the offence, the competent Police authorities concerned will have to set in motion the investigation process and will have to finalise the same in accordance with law and thereafter, it is for the special court to deal with the final

¶245

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¶247

report/charge sheet so filed and to take decision in the matter of taking cognizance and then to proceed with the trial. For failure to adhere to the obligation to report or record a case as envisaged in Sec.19 of the POCSO Act, punishment has been provided as per Sec. 21 thereof. So if a person, who is cast with the legal obligation to report or record the offence in terms of the mandatory provisions contained in Sec. 19 of the POCSO Act, fails to do so, then criminal culpability is enjoined thereto, for failure to report or record a case and it is made as punishable offence in terms of Sec. 21 of the said Act. So the incidents in relation to the principal offence of sexual harassment/sexual assault/penetrative sexual assault as per the POCSO Act, and the incidents relating to the so-called secondary offence on account of failure to report or record a case, which is punishable under Sec. 21 of the Act, are all integrally connected in the scheme framed by the Parliament by the enactment of the POCSO Act. Hence this Court has no hesitation to hold that the principal offence of sexual assault, etc. as well as the secondary offence as per Sec. 21(2) of the Act are all integrally related and inter connected with each other, in terms of the scheme of the said Act and can be said to be offences, which are said to have been committed in the course of

¶248

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the same transaction as contemplated in clause (d) of Sec. 223 of the Cr.P.C.

¶251

The matter can be seen from yet another perspective. In cases relating to commission of the principal offence as per the POCSO Act, the legal obligation is cast on the person concerned to report or record the offence as brought out within the purview of Sec. 19, and contingencies of failure to report or record the case in violation of Sec. 19, is punishable under Sec. 21 of the Act. The further acts of investigation into the offences, the submission of the final report, taking of cognizance, etc. are all different incidents in the scheme of the Act in relation to the conduct of the trial. Therefore, it could be seen that the principal offence of sexual assault and the secondary offence as per Sec. 19 of the Act are all arising in the same transactions. Moreover, it has to be borne in mind that if the interpretation put forward by the petitioner is accepted, then it will lead to a situation, whereby the child victim will have to face different trials in respect of the principal offence and the secondary offence in cases in which he/she is a victim and such a narrow interpretation as put forward by the petitioner would defeat the child-centric interpretation that is required in the context of these special

¶252

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¶254

enactments, which have been framed in terms of the enabling provision contained in Art.15(3) of the Constitution of India. Even from the point of view of an accused like the petitioner, it is only in her better interest that the secondary offender also partakes in the trial which is faced by the principal offender, as one of the vital ingredients is that the prosecution should prove about the commission of principal offence, as held in H.S.Rathod's case supra [ 1979 (4) SCC 502, para 4]. If separate trials are necessarily to be resorted to, as argued by the petitioner, then it may give rise to various unnecessary confusions, as even after the conclusion of the trial as against the principal offender, appeals and further remedies may be available to the principal offender and it could be unnecessarily argued by the secondary offender that the conviction of the principal offender should be rendered not only by the trial court but should also be confirmed by the appellate courts. So also, witnesses and prosecution machinery will also be unnecessarily inconvenienced and strained. In the light of these aspects, this Court has no hesitation to hold that it is well within the competence of the prosecution agency to insist for joint trial of a person like the petitioner, who is said to have committed offence as per Sec.21 of the

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¶257

POCSO Act, along with the principal accused, who is alleged to have committed the main offence of sexual assault, etc. The judgment of the Apex Court in H.S.Rathod's case supra [(1979) 4 SCC 502] is certainly an authority for the proposition that in order to sustain the conviction of a person, who is alleged to have committed the secondary offence, then one of the prime requirements is to have a conviction of the main accused for the principal offence. But that does not mean that joint trial is impermissible, in view of the abovesaid aspects. The Bombay High Court in the judgment dated 22.3.2017 in Criminal Revision Application No.69/2017 in the case in Balasaheb @ Suryakant Yashwantrao Mane v. State of Maharashtra [Indiakanoon.org/doc/58904321] has held that the abovesaid dictum laid down by the Chhattisgarh High Court in Kamal Prasad Patade's case supra [2016 KHC 3937] regarding the impermissibility of the joint trial of a person, who is said to have committed offence as per Sec. 21 of the POCSO Act, along with the principal accused, who is said to have committed the main offence as per the POCSO Act, does not lay down the correct legal position and that joint trial in such cases can be resorted to in terms of the provisions contained in clause (d) of Sec. 223 of the Cr.P.C. and has

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: 40 :-

¶260

held that those offences will have to be treated as those coming within the same transaction as understood in that provision. This Court is in respectful concurrence with the abovesaid considered views rendered by the Bombay High Court in Balasaheb's case supra and with great respect, this Court is not in a position to concur with the views of the Chhattisgarh High Court in Kamal Prasad Patade's case [2016 KHC 3937]. In the light of these aspects, the abovesaid pleas made by the petitioner that joint trial is not permissible will stand rejected.

¶261

The next aspect to be examined is the contention of the petitioner that no offence as per Sec. 21 (2) of the POCSO Act is made out in the instant case. In that regard, the petitioner mainly places reliance on the judgments of the Apex Court as in Dr.Sr.Tessy Jose v. State of Kerala [2018 (3) KLT 934 (SC), para Nos.9 and 10], A.S.Krishnan & Ors. v. State of Kerala [(2004) 11 SCC 576, paras 8 to 10] to buttress her arguments in that regard. In Dr.Sr.Tessy Jose's case supra, the Apex Court has held in paras 9 and 10 thereof as follows:

¶262

“9. The entire case set up against the appellants is on the basis that when the victim was brought to the hospital her age was recorded as 18 years. On that basis appellants could have gathered that at the time of conception she was less than 18 years and was, thus, a minor and, therefore, the appellants should have taken due care in finding as to how the victim became pregnant. Fastening the criminal liability on the

¶263

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¶265

basis of the aforesaid allegation is too far fetched. The provisions of S.19(1), reproduced above, put a legal obligation on a person to inform the relevant authorities, inter alia, when he / she has knowledge that an offence under the Act had been committed. The expression used is "knowledge" which means that some information received by such a person gives him / her knowledge about the commission of the crime. There is no obligation on this person to investigate and gather knowledge. If at all, the appellants were not careful enough to find the cause of pregnancy as the victim was only 18 years of age at the time of delivery. But that would not be translated into criminality.

¶266

10. The term "knowledge" has been interpreted by this Court in A. S. Krishnan and Others v. State of Kerala, 2004 KHC 776 : 2004 (11) SCC 576 : 2004 (2) KLT SN 40 : AIR 2004 SC 3229 : 2004 CriLJ 2833 to mean an awareness on the part of the person concerned indicating his state of mind. Further, a person can be supposed to know only where there is a direct appeal to his senses. We have gone through the medical records of the victim which were referred by Mr. Basant R., Senior Advocate for the appellants. The medical records, which are relied upon by the prosecution, only show that the victim was admitted in the hospital at 9.15 am and she immediately went into labour and at 9.25 am she gave birth to a baby. Therefore, appellant no. 1 attended to the victim for the first time between 9.15 am and 9.25 am on 7th February, 2017. The medical records of the victim state that she was 18 years' old as on 7th February, 2017. Appellant no. 1 did not know that the victim was a minor when she had sexual intercourse.”

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The Apex Court has held in the decision in

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A.S.Krishnan & Ors. v. State of Kerala [(2004) 11 SCC 576] in

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paras 8 to 10 thereof as follows:

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“8. The essential ingredients of S.471 are : (i) fraudulent or dishonest use of document as genuine, (ii) knowledge or reasonable belief on the part of person using the document that it is a forged one. S.471 is intended to apply to persons other than forger himself, but the forger himself is not excluded from the operation of the Section. To attract S.471, it is not necessary that the person held guilty under the provision must have forged the document himself or that the person independently charged for forgery of the document must of necessity be convicted, before the person using the forged document, knowing it to be a forged one can be convicted, as long as the fact that the document used stood established or proved to be a forged one. The act or acts which constitute the commission of the offence of forgery are quite different from the act of making use of a forged document. The expression 'fraudulently and dishonestly' are defined in S.25 and 24, IPC respectively. For an offence under S.471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document

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as contemplated by S.471 must be voluntary one. For sustaining conviction under S.471 it is necessary for the prosecution to prove that accused knew or had reason to believe that the document to be a forged one. Whether the accused knew or had reason to believe the document in question to be a forged has to be adjudicated on the basis of materials and the finding recorded in that regard is essentially factual.

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9. Under the IPC, guilt in respect of almost all the offences is fastened either on the ground of "intention" or "knowledge" or "reason to believe". We are now concerned with the expressions "knowledge" and "reason to believe". "Knowledge" is an awareness on the part of the person concerned indicating his state of mind. "Reason to believe" is another fact of the state of mind. "Reason to believe" is not the same thing as "suspicion" or "doubt" and mere seeing also cannot be equated to believing. "Reason to believe" is a higher level of state of mind. Likewise "knowledge" will be slightly on higher plane than "reason to believe". A person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. S.26, IPC explains the meaning of the words "reason to believe" thus.

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26. "Reason to believe". A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise".

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10. In substance what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned. Such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the nature of the thing. These two requirements i.e. "knowledge" and "reason to believe" have to be deduced from various circumstances in the case. (See Joti Parshad v. State of Haryana (AIR 1993 SC 1167) (1993 AIR SCW 224: 1993 CriLJ 413)).”

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In Dr.Sr.Tessy Jose's case supra, the Apex Court has dealt

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with a case where two doctors had treated a victim girl, who was brought to the hospital for dealing with the emergency of her delivery. The age of the victim girl was recorded by the hospital staff as 18 years. The two doctors, who treated her were charged with the offence as per Sec. 21 (1) of the POCSO Act on the allegation that the

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age of the victim girl was shown as 18 years and that she was brought to the said hospital for delivery and she was pregnant and that the two doctors, should have inferred that the victim girl would have conceived the child only at a time, when she had not attained the majority age of 18 years, as her age was shown at the time of her delivery as 18 years and therefore, the doctors should have known that the victim girl became pregnant and therefore, someone had sexual intercourse with her at a time when she had not completed the majority age of 18 years and therefore, the doctors were legally obliged to report the said fact to the Police authorities to enable them to register case under the POCSO Act and the non-reporting of the abovesaid facts by the two doctors would amount to breach of Sec. 19(1) of the Act, which is an offence punishable under Sec. 21(1) of the POCSO Act. The Apex Court noted the fact that the pregnant victim had gone into labour and in these circumstances, it was the solemn professional duty of the 2^nd appellant therein, as a doctor to attend to the victim patient and conduct the delivery, which was duly done by the doctor and the baby was born and therefore, the second appellant as a Doctor has only performed his professional duty. The argument of the prosecution was that the age of the victim was recorded as 18

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years and therefore, the appellant doctors should have gathered that at the time she had conceived, she was less than 18 years and therefore, the doctors should have taken care in finding as to how the victim became pregnant. The Apex Court held that fastening criminal liability on the said basis under Sec. 21(1) on the said doctors on the abovesaid basis is too far fetched and that an obligation to report as per Sec. 19(1) occurs only when the person concerned has knowledge that an offence under the POCSO Act has been committed and that the expression, “ knowledge” means that some information received by such a person gives him/her the knowledge about the commission of the crime. As regards the contention raised by the prosecution therein that the doctors were duty bound to ascertain as to how the victim became pregnant as her age was shown as 18 years at the time of her delivery, the Apex Court held that such a duty or obligation cannot be cast on the doctors in the facts of that case and that when the victim patient is brought to them for emergency in respect of her delivery, their solemn duty, as doctors demand that they should give immediate treatment and the mere fact that the age of the victim would have been recorded by the hospital staff as 18 years, does not cast any duty to the doctors, who are called upon for emergent

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treatment to investigate and gather knowledge as to whether the pregnant victim was minor at the time of her conception and if so, as to who was responsible for her pregnancy and then to report the matter to the Police and other authorities in terms of Sec. 19(1) of the POCSO Act. In that context, the Apex Court has held that if at all the appellant doctors were not careful enough to find cause of her pregnancy as her age was shown as 18 years at the time of her delivery, that cannot be translated into criminal culpability. It is in that regard, the Apex Court in para 10 of Dr.Sr.Tessy Jose's case supra has placed reliance on the scope and ambit of the requirements of “knowledge” as interpreted by the Apex Court in A.S.Krishnan's case supra [(2004 (11) SCC 576, paras 9 and 10]. Accordingly, the Apex Court has held in para 10 of Dr.Sr.Tessy's case supra that “knowledge” means an awareness on the part of the person concerned indicating his/her state of mind and further a person can be supposed to know only where there is a direct appeal to his senses, etc. In the facts of Dr.Sr.Tessy Jose's case supra the Apex Court has noted that the medical records would clearly show that the victim was admitted to the hospital at 9.15 a.m. on the day in question and she had immediately gone to labour and that 9.25 a.m. and she gave birth

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to a baby and the doctor had attended the victim for the first time between 9.15 a.m. and 9.25 a.m. on that day and as per the medical records, it was shown that she was 18 years as on that day and that the doctor did not know whether the victim was a minor when she had sexual intercourse. As regards the other appellant therein, the said doctor had not even examined the victim and was not in contact with the victim as per the medical records relied on by the prosecution. The said doctor had attended to the baby at 5.30 p.m. on that day and he had no occasion to examine or treat the victim, etc. Further it was also found therein that the 3^rd appellant therein had not come into contact with the victim or the baby and as the administrator of the hospital, it was not possible for her to be aware about details of each and every patient. Accordingly, the Apex Court has held that the knowledge requirement foisted on the appellants therein cannot be that they ought to have deduced from the circumstances that an offence may have been committed and had thus quashed the impugned criminal proceedings. In A.S.Krishnan's case supra [(2004) 11 SCC 576] the Apex Court in paras 8 to 10 thereof noted that for sustaining conviction under Sec. 471 of the I.P.C. it is necessary for the prosecution to prove that the

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accused knew or had reason to believe that the document was a forged one. Dealing with the aspect regarding the concept of “knowledge” and “reason to believe” the Apex Court in para 9 thereof held that “knowledge” is an awareness on the part of the person concerned indicating his state of mind and “reason to believe” is another facet of the state of mind and that “reason to believe” is not the same thing as “suspicion” or “doubt” and mere seeing also cannot be equated to believing and that “reason to believe” is a higher level of state of mind and that “knowledge” will be slightly on a higher plane than “reason to believe”. It was held therein that a person can be supposed to know where there is a direct appeal to his senses and a person is presumed to have a reason to believe if he has sufficient cause to believe the same. It was accordingly held in para 10 thereof that in substance, what it means is that a person must have reason to believe if the circumstances are such that a reasonable man would, by probable reasoning, conclude or infer regarding the nature of the thing concerned and such circumstances need not necessarily be capable of absolute conviction or inference; but it is sufficient if the circumstances are such as creating a cause to believe by chain of probable reasoning leading to the conclusion or inference about the

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nature of the thing and these two requirements i.e. “knowledge” and “reason to believe” have to be deduced from various circumstances in the case, as held by the Apex Court in cases as in Joti Parshad v. State of Haryana [ 1993 suppl. (2) SCC 497].

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The learned counsel for the petitioner has pointed out that in a case where offence has already been committed, then the requirement in Sec. 19(1) of the POCSO Act is that the person concerned should necessarily have “knowledge” that such offence has been committed and it is only in a case where that requirement is met and the person concerned still does not provide the said information to the enumerated Police authorities concerned that the breach of Sec. 19(1) occurs, which makes it a punishable offence as per Sec. 21 of the POCSO Act. It is pointed out by the petitioner that in a case where the offence has been committed, then the requirement is that the person should necessarily have knowledge about it and not that he has reasons to believe, as the Apex Court has clearly held in the abovesaid decisions that the requirement of “knowledge” is standing on a higher pedestal than the one compared to “reason to believe”. There cannot be any quarrel with the said proposition as the said aspects have already been adumbrated with clarity by the Apex

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Court in Dr.Sr.Tessy Jose's case supra and A.S.Krishnan's case supra .

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An incidental argument has been raised by the learned State Prosecutor that an accused like the petitioner is not having any obligation to investigate and gather knowledge by placing reliance on the observations of the Apex Court in para 9 of Dr.Sr.Tessy Jose's case supra. Of course there is an observation by the Apex Court in para 9 of Dr.Sr.Tessy Jose's case supra, that there is no obligation on the person to investigate and gather knowledge, etc. But the said observation has been made only in the context of the specific argument made by the prosecution therein that the appellant doctors therein were obliged to find out as to how the victim girl became pregnant, as her age was shown as 18 years at the time of her delivery and that if the accused doctors had ascertained about the details as the victim's age was shown as 18 years, then it could have been found out that she had conceived at a time when had not completed the majority age of 18 years and that further probe by the doctors with the victim or her relative could have led to more information as to who was responsible for her pregnancy and the appellant doctors therein had the obligation in that regard and then should have

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reported to the Police in terms of Sec. 19(1)of the POCSO Act. It is in the context of this stand of the prosecution to justify the prosecution against the appellant doctors that the Apex Court held on facts of that case where the pregnant victim was brought to the doctor concerned for dealing with the emergency with respect to her delivery, the mere fact that the age of the victim would have been recorded by the staff in the hospital as 18 years, will not by itself cast any obligation on the doctor concerned to probe as to when and how the victim became pregnant so as to ascertain whether she became pregnant at a time when she had not completed the age of 18 years and if so, as to who was responsible for that and then for the doctor to report the matter to the Police, as per Sec. 19(1). In a case of that nature, the primary and solemn duty of the doctor is to give utmost care and treatment to the pregnant victim, who is about to deliver a child and that the mere fact that her age was shown as 18 years, will not cast any obligation on the doctor to investigate and gather knowledge as to when and how the victim became pregnant. Further that the Apex Court has also held that if at all the doctor was not careful in that regard to find the cause of pregnancy as the victim was only 18 years at the time of her delivery, that cannot translate into any criminality. Therefore, the

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abovesaid observation in paragraph 9 of the decision in Dr.Sr.Tessy Jose's case supra has been made in the facts of that case and that too, in favour of the accused therein (doctors). The said observation cannot be understood so as to mean that an person like the petitioner involved in a case like this, who gets some information through some source about the alleged commission of offence has no duty at all to ascertain the veracity or otherwise of such information which may be third party source or hearsay or that the person concerned is legally obliged to mechanically convey that information to the Police and other authorities concerned. In a case where a person gets some information about the alleged commission of offence, and if it leads that person to have “knowledge” (as understood in the aforecited rulings) about such commission of offence, then the person who gets such knowledge is legally obliged as per Sec. 19(1) of the POCSO Act to report the same to the competent Police officials concerned. Here, the element of such “ knowledge” should meet the requirements of the legal parameters laid down by the Apex Court in the aforecited rulings in Sr.Dr.Tessy's case supra, A.S.Krishnan's case supra. As held in those decisions of the Apex Court, “knowledge” is a state of level which is slightly higher than the element of “reason to believe”.

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That apart, it has to be borne in mind that sub section (7) of Sec. 19 of the POCOSO Act stipulates that no person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of Sec. 19(1). So the immunity conferred by Sec. 19(7) of the Act could be claimed only if the information is given in good faith by the person concerned. Sec. 52 of the I.P.C. deals with “good faith”, wherein it has been stipulated that nothing is said to be done or believed in “good faith” which is done or believed without due care and attention. Therefore, a person concerned can be said to be conveyed that information to the authorities concerned in good faith only if it is done with due care and attention.

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A perusal of the main part of sub section (1) of Sec. 19 of the POCSO would show that it consists of two parts and the first part deals with cases where the person concerned has apprehension that an offence under the said Act is likely to be committed. Whereas the second part conceives of a situation where a person concerned has knowledge that such an offence has been committed, etc. In a case like the instant one, where the case is that the offence has already been committed and it is not a case that the offence is likely to be committed in future, etc., then the person concerned should be

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imputed with a knowledge that such offence has been committed and if he is so imputed with such knowledge about the commission of the offence, then he is under the obligation to provide such information to the Special Juvenile Police Unit or the local Police as the case may be, as per the mandate of Sec.19(1). So in situation where the prosecution case is that the offence has actually been committed, etc., then the person concerned, who is cast with the obligation to provide such information to the Police authorities concerned, should be imputed that he has knowledge that the offence has been committed. The said imputation of knowledge on the person concerned [who is allegedly violated the obligation to provide information to the Police as envisaged in Sec. 19(1)] should satisfy the requirements of “knowledge” as adumbrated in decisions of the Apex Court as in Dr.Sr.Tessy Jose's case supra and in A.S.Krishnan's case supra.

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Sri.Suresh Babu Thomas, learned Addl. Director General of Prosecutions appearing for the respondent State would invite this Court's attention to the various factual aspects involved in this case and would point out that the petitioner is arrayed as accused No.2 in these cases and at the time of occurrence of the offence, she was

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admittedly the Headmistress of the LP school concerned and that A-1 (Govindan) was a teacher in the said school and that the allegation is that while A-2 was working as headmistress of the said school, A-1, who is working as a teacher in the said school, had sexually abused minor victim girls, who are his students, etc. Further, the learned Prosecutor would point out that the petitioner (A-2) had got clear and cogent information about the sexual abuse inflicted by A-1 and yet the petitioner had failed to inform the authorities as provided under Sec. 19 of the Act and therefore, it is an offence punishable under Sec. 21 of the Act. It is urged by the learned Prosecutor that the petitioner (A-2) had clear knowledge as envisaged in Sec. 19 of the POCSO Act and first information statements have been lodged by the minor victim girls concerned in four cases on 22.2.2014 and in Crime No.161/2014 FIS has been lodged on 23.2.2014 and that all these cases, one Anitha, who is another teacher of the said school, is a witness. The learned Addl. D.G. Prosecutions has invited this Court's attention to the Sec. 161 Cr.P.C. statement given by said Anitha, who is a teacher of the said school (as given on page 47 of Crl.M.C.No. 309/2019), which reads as follows:

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"ഞഞാൻ മഞാതമമംഗലമം എന്ന സ്ഥലതത്ത് തഞാമസമഞാണ. പപെരരുന്തട LP സസസ്കൂളളിൽ 23 വർഷമഞായളി അധധഞാപെളിസയഞായളി ജജഞാലളി പചെയതരു

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: 55 :-

¶322

വരരുസയഞാണ. ഇജപഞാൾ സസസ്കൂളളിപല 1-ആമം കഞാസ അധധഞാപെളി സയഞാണ. 1 മരുതൽ 5 വപര കഞാസസ്സു ളഞാണ സസസ്കൂളളിൽ പപെവർതളി കരുന്നത. എലലഞാ കഞാസസ്സു ളസ്സുമം ഓജരഞാ ഡളിവളിഷൻ മഞാപതജമ ഉളസ്സു . ഞഞാൻ ഉൾപപപടെ സസസ്കൂളളിൽ 5 ജപെരഞാണ അധധഞാപെസരഞായളി ഉളത. 2-ആമം കഞാസ അദധഞാപെളിസ വവീണ രഞാമദഞാസളിന് സ്ഥളിരമം നളിയമനമം ആയളിടളിലല. പഹെഡ് ടെവീച്ചർ പശവീലത 5-ആമം കഞാസളിലരുമം ജഗഞാവളിന്ദൻ മഞാഷ് 4-ആമം കഞാസളിലരുമം സജളിത 3-ആമം കഞാസളിലരുമം കഞാസ ടെവീച്ചർമഞാരഞായളി പപെവർതളിച്ചസ്സു വരളിസയഞാണ. സഞാഫ് മവീറളിമംഗളിൽ ഞങ്ങൾ പെരസപെരമം തവീരരുമഞാനളിച്ചഞാണ കഞാസ ടെവീച്ചർമഞാരഞായളി പപെവർതളികരുന്നത. ജഗഞാവളിന്ദൻ മഞാഷ് 5-ആമം കഞാസളിൽ സണകരുമം പെരളിസര പെഠനവരുമം കഞാസ എടെരുകരുന്നരുണത്ത്. 10/02/14 തവീയതളി പശവീലത ടെവീച്ചർ ആണ എജന്നഞാട് ജഗഞാവളിന്ദൻ മഞാഷ് സസസ്കൂളളിപല പപെൺസരുടളിസപള പെവീഡളിപളിച്ചതഞായളി പെറഞ്ഞത. PTA പപെസളിഡന്ന ജടെഞാമളി യരുപടെ മസൾ അലവീനപയ മഞാഷ് ലലമംഗവീസമഞായളി പെവീഡളിപളിച്ച സഞാരധമം ജടെഞാമളി ടെവീച്ചപറ അറളിയളിച്ചതഞാപണന്നരുമം പപെശനമം ചെർച്ച പചെയസ്സുന്നതളിന് പെളിജറ ദളിവസമം PTA എകസളിസധസ്കൂടവീവ് വളിളളികരു സയരുമം പചെയതരു. ജയഞാഗതളിൽ പവച്ചഞാണ മഞാഷ് ഗഞായപതളി, ഈശശ്വരളി, മജഹെശശ്വരളി, സഫവീന എന്നവീ സരുടളിസപളയരുമം ലലമംഗവീസമഞായളി ഉപെപദവളിച്ചതഞായളി പെറഞ്ഞറളിഞ്ഞത . തരുടെർന്നത്ത് 14-ആമം തവീയതളി PTA ജനറൽ ജബഞാഡളി വളിളളികരുസയരുമം, ജനറൽ ജബഞാഡളിയളിൽ മഞാർച്ചത്ത് 30 വപര മഞാജഷഞാട് അവധളിയളിൽ ജപെഞാസരുവഞാനരുമം തരുടെർന്നത്ത് VRS വഞാങ്ങളി ജപെഞാസരുന്നതളിനരുമം നളിർജദ്ദേശളിച്ചളിരരുന്നരു. സമംഭവപതപറളി ആജരഞാ വളിവരമം അറളിയളിച്ചതളിൽ AEO 19-ആമം തവീയതളി സസസ്കൂളളിൽ അജനശ്വഷണതളിന് വരളിസയരുമം AEO വളിന്പറ അജനശ്വഷണ പതതരുടെർന്നത്ത് ജഗഞാവളിന്ദൻ മഞാപഷ 20 -ആമം തവീയതളി സസപപെൻഡ് പചെയസ്സു യരുമം തരുടെർന്നത്ത് അജനശ്വഷണ ഭഞാഗമഞായളി പശവീലത ടെവീച്ചപറയരുമം പഹെലല്പ് പഡസക ടെവീച്ചർ സജളിതപയയരുമം സസപപെൻഡ് പചെയത ഉതരവരുണഞാസരുസയരുമംപചെയതരു. അതളിനരു ജശഷമം HM ന്പറ ചെഞാർജ എനളികത്ത് നൽസളിയളിരളികരുസയഞാണ. അതളിനരു ജശഷമം തഞാതസഞാലളി സമഞായളി സനസ്കൂല്പ്, അനസ്കൂല്പ് സരുമഞാർ എന്നവീ അധധഞാപെസപര സസസ്കൂളളിൽ AEO നളിയമളിച്ചളിരളികരുസയഞാണ. പശവീലത ടെവീച്ചറഞാണ ജഗഞാവളിന്ദൻ മഞാഷ് സരുടളിസപള ഉപെപദവളിച്ച സഞാരധമം എപന്ന ആദധമം അറളിയളിച്ചത. പചെറളിയ ഒരരു സമംഭവമം എന്ന നളിലയളിലഞാണ എപന്ന വളിവരമം അറളിയളിച്ചത. അതരുപസഞാണരു ഞഞാൻ അതളിപനകരുറളിച്ചത്ത് അലവീന ജയഞാജടെഞാ മറത്ത് സരുടളിസജളഞാജടെഞാ ജചെഞാദളിച്ചളിരരുന്നളിലല. PTA മവീറളിമംഗളിൽ പവച്ചഞാണ ജഗഞാവളിന്ദൻ മഞാഷ് പചെയതത വലളിയ പതറഞാണ എന്നത്ത് അറളിയഞാൻ ഇടെയഞായത . AEO ഓഫവീസളിൽ നളിന്നരുമം അജനശ്വഷണതളിന് വന്ന ദളിവസമഞാണ അലവീന ജഗഞാവളിന്ദൻ മഞാഷ് ഉപെപദവളിച്ച സഞാരധമം എജന്നഞാടെരുമം മറത്ത് അധധഞാപെസജരഞാടെരുമം പെറഞ്ഞത. പശവീലത ടെവീച്ചർകത്ത് മരുജന്ന മഞാപഷകരുറളിച്ചത്ത് എജന്നഞാട് ആരരുമം പെരഞാതളി പെറഞ്ഞളിരരുന്നളിലല . സസസ്കൂളളിപല പപെൺസരുടളിസപള ജഗഞാവളിന്ദൻ മഞാഷ് ലലമംഗവീസമഞായളി പെവീഡളിപളിച്ചതളിൽ സരുടളിസളസ്സുപടെ പെരഞാതളിപപെസഞാരമം ജപെഞാലവീസ ജസസ എടെരുതതഞായരുമം ജഗഞാവളിന്ദൻ മഞാസപറ അറസത്ത് പചെയതതഞായരുമം

¶323

Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

¶324

: 56 :-

¶325

അറളിഞ്ഞളിരരുന്നരു. ഇന്നത്ത് ജസസളിന്പറ ആവശധതളിന് PTA മളിനളിറത്ത്സ ബരുകത്ത് ഞഞാൻ ജപെഞാലവീസളിന് ഹെഞാജരഞാകളിപസഞാടെരുകരുസയരുമം ബന്ത വസളിൽ എടെരുത ബരുകത്ത് ജസഞാടെതളി ആവശധപപടെരുന്ന സമയമം ഹെഞാജരഞാ കണപമന്ന നളിബന്ധനയളിൽ ഞഞാൻ ഏറസ്സു വഞാങ്ങരുസയരുമം ആയതളിനരു ഞഞാൻ മഹെസറളിൽ ഒപത്ത് പവയകരുസയരുമം പചെയതളിരരുന്നരു. മറത്ത് ജരഖസൾ ഞഞാൻ പെളിന്നവീട് ഹെഞാജരഞാകളിതരരുന്നതഞാണ. PTA മവീറളിമംഗളിൽ ജഗഞാവളിന്ദൻ മഞാഷ് VRS വഞാങ്ങളി ജപെഞാസരുന്നളിപലലങളിൽ നളിയമ നടെപെടെളി സശ്വസരളികരുന്നതളിന് തവീരരുമഞാനളിച്ചളിരരുന്നരു.”

¶326

On the basis of the abovesaid Sec.161 Cr.P.C. statement of Smt.Anitha, learned Addl. D.G. Of Prosecutions would argue that the petitioner (A-2) who is the headmistress of the school, had clear knowledge about the various incidents of sexual assaults done by A-1 on the minor victim girls concerned even prior to 10.2.2014 and that therefore her abject failure in reporting the same to the Police authorities concerned as mandated in Sec. 19(1) of the POCSO Act, is punishable under Sec. 21 of the Act. Per contra, the learned counsel for the petitioner would urge that prosecution has not been able to establish that the petitioner could be imputed with the “ knowledge” regarding the commission of the principal offence, going by the legal requirements of “such knowledge” as understood in the aforecited decisions of the Apex Court as in Sr.Dr.Tessy Jose's case supra, A.S.Krishnan's case supra, etc.

¶327

After hearing both sides, this Court is of the considered view that it will be extremely hazardous for this Court and that too, in

¶328

Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

¶329

: 57 :-

¶330

exercise of inherent powers under Sec.482 of the Cr.P.C. to adjudicate on the various factual issues that arise in these case, so as to evaluate as to whether the petitioner accused had knowledge about the commission of the offence as understood in Sec. 19(1) of the POCSO Act, as envisaged in the aforecited rulings, by evaluating factual materials involved in this case. If that is so done, it may amount to shortcircuiting the due procedure of law as the said matter will have to be determined by the trial court itself. Therefore, this Court is refraining from deciding the said factual issue as to whether the petitioner had knowledge about the commission of the act and as to whether she had failed in her legal obligation to convey the said information to the competent Police authorities concerned and whether she has thus committed the offence punishable under Sec. 21(2) of the POCSO Act.

¶331

The upshot of the above discussion is that the main prayer of the petitioner for quashment of the impugned criminal proceedings cannot be acceded to by this Court, but liberty is accorded to the petitioner to avail other remedies open to her as aforested.

¶332

The learned counsel appearing for the petitioner (A-2) would then submit as an alternative plea that in case this Court is not

¶333

Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

¶334

: 58 :-

¶335

deciding the said issue, then liberty may be granted to the petitioner to raise these issues by filing requisite application seeking discharge before the special court concerned and that this Court may direct the said special court concerned to consider the said plea on merits, after hearing both sides. The learned Addl. Director General of Prosecutions appearing for the respondent fairly submit that the prosecution has no serious objections for the said course of action. The learned counsel for the petitioner submits that an accused like the petitioner has a statutory right in terms of the provisions contained in Sec. 239 of the Cr.P.C. to seek discharge. But the issue as to whether such a plea for discharge is factually tenable or sustainable, is fully within the province of the special court concerned. Therefore, it is made clear that this Court is not entering into the merits of the said controversy and the petitioner if so advised, may move requisite application for discharge before the special court concerned without any further delay and the said plea for discharge may be considered by the special court, provided charges have not been framed at the time of submission of the said application. If such an application is filed without much delay, the special court may consider the same after granting reasonable opportunity of being

¶336

Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

¶337

: 59 :-

¶338

heard to the petitioner accused as well as the Prosecutor concerned and then will pass orders thereon in accordance with law, preferably within a period of six weeks from the date of filing such application. It is also made clear that this Court has not in any manner entered into the merits of the said factual controversy and it is entirely within the domain of the special court concerned to examine the tenability or otherwise of such a plea.

¶339

The learned counsel for the petitioner has also urged that the petitioner has unnecessarily been dragged into these proceedings and that as the headmistress of the school, it would be extremely embarrassing to her to appear as an accused in the criminal court along with the principal accused, who is alleged to have committed the offence of sexual assault and this Court may direct the special court to grant exemption from personal appearance of the petitioner, etc. As regards the said plea, it may not be proper for this Court to enter into such a question at a time when admittedly the petitioner has not even made any such plea before the court below concerned. If the petitioner has any case that she can seek any such plea, it is for her to avail remedies and options which are available to her as per law.

¶340

Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

¶341

: 60 :-

¶342

The following aspects may be summed up on the basis of the abovesaid discussion:-

¶343

(i) In cases as in the instant one, the person who is alleged to have committed the so-called “secondary offence” as per Sec. 19(1) of the POCSO Act, which is punishable as per Sec. 21 thereof can be jointly tried with the person who is said to have committed the principal offence of sexual harassment/ sexual assault/ penetrative sexual assault, etc. as per the POCSO Act.

¶344

(ii)(a) In order to successfully secure conviction of the person, who is alleged to have committed the so-called secondary offence as per Sec. 19(1) of the POCSO Act, one of the prime requirements is that the prosecution will have to establish that the principal offender has in fact committed the principal offence as per the POCSO Act. In other words, if the principal offender is acquitted of the principal offence, then there is no question of securing any conviction of the secondary offender, who is said to have committed the offence as per Sec. 19(1) of the POCSO Act. This is all the more so, in view of the dictum laid down by the Apex Court in H.S.Rathod's case supra.

¶345

(b) The other requirement is that the person concerned should be imputed with the “knowledge” about the commission of principal offence. The issue as to whether the person who is accused of committed the secondary offence as per Sec. 19(1), which is punishable under Sec. 21 of the POCSO Act, has “knowledge” about the commission of the principal offence, etc. will be dependent upon the facts and attendant circumstances of each case and to be

¶346

Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

¶347

: 61 :-

¶348

assessed in accordance with the parameters laid down by the Apex Court in the decisions as in Sr.Dr.Tessy's case supra., A.S.Krishnan's case supra, etc.

¶349

(c) The last requirement is that the person concerned has not provided such information to the competent Police authorities concerned in breach of the obligation as per Sec. 19(1), despite having knowledge about the commission of the principal offence. 36. To sum up the following orders and directions are made:

¶350

(i) The main plea made by the petitioner herein for quashment of the impugned criminal proceedings wherein she has been alleged to have committed the offence as per Sec. 19(1), which is punishable as per Sec. 21 of the POCSO Act is rejected.

¶351

(ii) However, the petitioner, if so advised, will be at liberty to file appropriate application seeking discharge before the Special (Sessions) Court concerned and if such application is filed without much delay, the Special Court concerned shall consider the said plea for discharge and pass appropriate orders thereon after affording reasonable opportunity of being heard to the petitioner's counsel and the learned Public Prosecutor and orders in that regard will be endeavoured to be rendered by the Special Court within six weeks from the date of filing of such application. Needless to say, the petitioner can seek the remedy of discharge only before the framing of charges by the Special Court.

¶352

(iii) The other pleas of the petitioner for exemption from personal appearance, etc. are all left open to be raised before the Special Court concerned, at the appropriate stage.

¶353

It is made clear that this Court has not in any manner

¶354

Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

¶355

: 62 :-

¶356

entered into the merits of the controversy in that regard on the issue as to whether the petitioner has committed the offence as per Sec. 19(1) of the POCSO Act and all such contentions of the petitioner are left open to be decided in appropriate proceedings before the Special Court concerned, in the manner known to law.

¶357

Before parting with these cases, this Court would place on record its deep sense of appreciation for the valuable assistance rendered to this Court by the learned counsel for the petitioner, the learned Addl. State Prosecutor and the learned Amicus Curiae.

¶358

With these observations and directions, the above Criminal Miscellaneous Cases will stand finally disposed of.

¶359

sdk+

¶360

Sd/- ALEXANDER THOMAS, JUDGE

¶361

Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

¶362

: 63 :-

¶363

APPENDIX OF Crl.MC 309/2019

¶364

PETITIONER'S/S EXHIBITS:

¶365

ANNEXURE-A1 A TRUE COPY OF THE FIR IN CRIME NO.159/2014 OF PERINGOME POLICE STATION.

¶366

ANNEXURE-AII A TRUE COPY OF THE REPORT SUBMITTED BY THE SUB INSPECTOR OF POLICE, PERINGOME POLICE STATION. ANNEXURE-AIII A TRUE COPY OF THE FINAL REPORT IN CRIME NO.159/2014 OF PERINGOME POLICE STATION. ANNEXURE-AIV A COPY OF THE STATEMENTS PURSUANT TO WHICH THE CHARGE IS FILED.

¶367

APPENDIX OF Crl.MC 5010/2019

¶368

PETITIONER'S/S EXHIBITS:

¶369

ANNEXURE A1	TRUE COPY PERINGOME	OF THE POLICE	FIR IN CRIME NO.162/2014 OF STATION, KANNUR DISTRICT.
ANNEXURE AII	TRUE COPY	OF THE	REPORT SUBMITTED BY THE SUB
	INSPECTOR STATION.	OF	POLICE, PERINGOME POLICE
ANNEXURE AIII	TRUE COPY NO.162/201	OF T 4 OF P	HE FINAL REPORT IN CRIME ERINGOME POLICE STATION.
ANNEXURE AIV	TRUE COPY	OF THE	STATEMENT.

¶370

APPENDIX OF Crl.MC 5013/2019

¶371

PETITIONER'S/S EXHIBITS:

¶372

ANNEXURE A1	A TRUE COPY OF THE	FIR IN CRIME NO 161 OF
	2014 OF PERINGOME	POLICE STATION, KANNUR
	DISTRICT

¶373

ANNEXURE A11	A TRUE COPY OF THE REPORT SUBMITTED BY THE
	SUB INSPECTOR OF POLICE, PERINGOME POLICE

¶374

Crl.M.C.Nos. 309, 5010, 5013, 5078 and 5080 of 2019

¶375

: 64 :-

¶376

STATION

¶377

ANNEXURE A111 A TRUE COPY OF THE FINAL REPORT IN CRIME NO 161 OF 2014 OF PERINGOME POLICE STATION, KANNUR DISTRICT

¶378

ANNEXURE AIV A TRUE COPY OF THE STATEMENTS PURSUANT TO WHICH THE CHARGE IS FILED

¶379

APPENDIX OF Crl.MC 5078/2019

¶380

PETITIONER'S/S EXHIBITS:

¶381

ANNEXURE	A1 A TRUE OF PERI	COPY NGOME	OF POL	THE ICE	FIR IN CRIME NO.160/2014 STATION.
ANNEXURE	AII A TRUE SUB IN STATION	COPY SPECTO .	OF R	THE OF	REPORT SUBMITTED BY THE POLICE, PERINGOME POLICE
ANNEXURE	AIII A TRUE NO.160/	COPY 2014 O	OF F P	TH ERIN	E FINAL REPORT IN CRIME GOME POLICE STATION
ANNEXURE	AIV A TRUE WHICH T	COPY HE CHA	OF RGE	TH IS	E STATEMENTS PURSUANT TO FILED

¶382

APPENDIX OF Crl.MC 5080/2019

¶383

PETITIONER'S/S EXHIBITS:

¶384

ANNEXURE	A1 TRUE COPY PERINGOME	OF THE FI POLICE STA	R IN TION	CRIME NO.166/2014 OF , KANNUR DISTRICT
ANNEXURE	AII TRUE COPY INSPECTOR STATION	OF THE RE OF POL	PORT ICE,	SUBMITTED BY THE SUB PERINGOME POLICE
ANNEXURE	AIII TRUE COPY NO.166/201	OF THE 4 OF PERIN	FINA GOME	L REPORT IN CRIME POLICE STATION
ANNEXURE	AIV TRUE COPY WHICH THE	OF THE CHARGE IS	STAT FILE	EMENTS PURSUANT TO D

Sreelatha K.V. v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sreelatha K.V. v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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