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POCSO: the mandatory reporting under Section 21 of the POCSO Act should not be confused with delay in reporting or failure to report : Delhi High court

Case title: Jasvinder Kaur & Anr vs State& Anr.
Case no.: CRL. REV.P. 401/2020 & CRL.M.A. 17563/2020, CRL.M.A. 3620/2022
Dated on: 07TH May 2024
Quorum: Hon’ble Ms. Justice Amit Sharma.

FACTS OF THE CASE
The present petition Respondent no. 2 sent a complaint dated 10.09.2018 to the Director, Directorate of Education, Delhi alleging that his son (heretofore referred to as Master “VA” / PW-1), a minor aged about 12 years then, studying in class 7th in a public school had been sexually assaulted by few of his classmates in the preceding year [the name of the survivour and the school are withheld to protect the identity of the survivour in accordance with section 23 of the POCSO Act] and that when Respondent no. 2 approached the school management with the issue and persisted with his adamant efforts requesting for rustication of the 5 alleged CCLs involved in the incident; the management responded to the same with rustication of “M” and “R” and with issuance of warning to the 3 other CCLs. Furthermore, in the aforesaid complaint, it was stated that even after the alleged incident leading to rustication and warning, school authorities and especially one Ms. J. K. S. (name withheld), Teacher-in-Charge of the school continued to mete out different treatment to the survivour (Master “VA” / PW-1), who intentionally was made to sit at the back of the classroom secluded from other students despite his poor eyesight and was failed in class VII. CRL. REV.P.401/2020. One copy of the aforementioned complaint was sent to the DCP, Central District, Darya Ganj, on the basis of which, FIR no. 421/2018 under Sections 377/34 of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (heretofore referred as “POCSO Act”) was registered in PS Karol Bagh against the CCLs on 02.10.2018 (Annexure C-3), which was further referred to Juvenile Justice Board where it is currently pending. During investigation, on 06.10.2018, statement of the survivour “VA” (PW-1) under 164 of the Code of Criminal Procedure (heretofore referred as “Cr.P.C.”) was recorded; where he corroborated the allegations made in the complaint regarding forceful unnatural sex by 5 of his classmates.
He further corroborated to the inequitable and exclusionary treatment meted out to him by the school authorities including the Vice-Chairperson and the Teacher-in-Charge, Ms. J.K.S. On further investigation, all 5 CCLs were apprehended. The Principal and Vice-Chairperson Section 21 POCSO Act were thereafter framed against the petitioners. The petitioners in their application under Section 319 of the Cr.P.C. prayed for impleadment of Respondent no. 2 (PW-2) and Ms. G.K. (name withheld) as accused(s) in the case under Section 19 read with Section 21 of the POCSO Act; however, the same was dismissed by the Special Judge (POCSO Act), THC (Central), Delhi on 21.09.2020 on the ground that inculpatory statement of Respondent no. 2 (father of the survivour/PW-2), who is a prosecution witness cannot make him liable to be arrayed as an accused under Section 319 of the Cr.P.C. (Annexure A-1). Hence, the present revision petition.namely Jasvinder Kaur, W/o Gurpreet Kaur, R/o GH13/84, Paschim Vihar, New Delhi (petitioner no. 1) and Harvinderjeet Singh, S/o Sardar Satwant Singh, R/o I-16/390, Military Road, Anand Parbat, Karol Bagh (petitioner no. 2) were given notices under section 41A of the Cr.P.C. Chargesheet was filed. Charges under Section 21 POCSO Act were thereafter framed against the petitioners. The petitioners in their application under Section 319 of the Cr.P.C. prayed for Impleadment of Respondent no. 2 (PW-2) and Ms. G.K. (name withheld) as accused(s) in the case under Section 19 read with Section 21 of the POCSO Act; however, the same was dismissed by the Special Judge (POCSO Act), THC (Central), Delhi on 21.09.2020 on the ground that inculpatory statement of Respondent no. 2 (father of the survivour/PW-2), who is a prosecution witness cannot make him liable to be arrayed as an accused under Section 319 of the Cr.P.C. (Annexure A-1). Hence, the present revision petition.

CONTENTIONS OF THE APPELLANT
The learned Counsel for the petitioners submitted that they had only received a complaint of bullying amongst students of the class of the survivour, which was subsequently resolved by holding a meeting on 14.07.2017. Respondent no. 2 who is the father of the survivour was satisfied with the resolve made out in the issue by the school authorities, so much so that he had provided a letter of satisfaction to the school authorities on 15.07.2017 (Annexure D-4) assuring not to take any legal action against the school authorities. The learned Counsel for the petitioners further submitted that Respondent no. 2‟s (complainant/ explicit “admission” of the “knowledge” he had regarding commission of the sexual assault one year back does not provide him a leeway under POCSO Act and he is equally liable to inform the police about the incident as per the mandate of Section 19 and 21 of the POCSO Act, as Section 21 of the act renders “any person” liable for failure to report the case, which includes parents of the survivour as well. Furthermore, it is submitted that there was a delay of 13 months on behalf of Respondent no. 2 in reporting the alleged incident to the police, who conveniently made the complaint when his son, i.e., the survivour (PW-1) was rusticated from the school on non-payment of his yearly fees.
It is further submitted that the intention of the legislature behind framing such a stringent law as that of POCSO Act was to protect the children from sexual abuse, in which the perpetrators sometimes happen to be close relatives/parents of the children; therefore, both Section 19 (1) which mandates reporting and Section 21 which makes non-reporting punishable have been worded with “any person”. It is thus submitted that Respondent no.2 (the father of the survivour/PW 2) who is a prosecution witness in this case should be arrayed as an accused and there should not be any immunity given to him under the aegis of Section 132 of the Evidence Act as procedural law is always subservient to substantive law. Reliance was placed on Saiyad Mohammad Bakar El- Edroos (dead) by LRs vs. Abulhahabib Hasan Arab and others AIR 1998 SC 1624. Since the complainant admitted voluntarily of his knowledge about the alleged incident in his complaint in the preceding year, it can be used as evidence against him in both civil and criminal proceedings. Section 132 of the Evidence Act protects against self-incrimination; however, in consideration of the above circumstances, statement given by Respondent no. 2 (father of the survivour/PW-2) cannot be construed as self-incriminatory.

CONTENTIONS OF THE RESPONDENTS
Learned APP for the State submitted that the petitioners have exhausted all their remedies, including challenging the order on charge and even for recalling of PW-2 (father of the survivour) for further examination. It is further submitted that Respondent no. 2 came in possession of the knowledge of the alleged incident from one Ms. G.K., i.e., mother of the survivour‟s friend, Master “MS”, who in turn informed him and the school authorities. 9. It is further submitted that the school authorities had called the father (PW-2) and he was forced to sign the satisfactory letter dated 15.07.2017. Besides, in their testimonies, both the survivour child (PW-1) and the father (respondent no. 2) have explained the circumstances and corroborated the contents of the initial complaint. It was also submitted that the survivour has himself in his statement deposed about the acts of mistreatment by the Principal madam, the Vice-Chairperson of the school (the petitioners herein) and one J.K.S., the Teacher-in-Charge. It is further submitted that complaint dated 10.09.2018 was addressed to the Director, Directorate of Education, Delhi and was also sent to the Hon‟ble Lieutenant Governor and the DCP, Central District, Darya Ganj, on which the aforementioned FIR was registered. Learned Counsel on behalf of Respondent no. 2 submitted that “mandatory reporting” under Section 21 of the POCSO Act should not be confused with “delay in reporting” or “failure to report”, because if the “mandatory reporting” provision is given utmost importance, then the legislative intent of the framers as far as the best interest and primary well-being of the child are concerned, would be defeated.
It is further submitted that the petitioners have blatantly revealed the identity of the survivour and respondent no. 2 which stands in contravention to the provision of POCSO Act and a catena of judgements. It is further submitted that the revisional jurisdiction of the High Court and the Court of Sessions under Section 397 and 401 of the Cr.P.C. can only be invoked by the High Court or the Court of Sessions for the purpose of satisfying itself as to the correctness, legality or proprietary of any finding.

LEGAL PROVISIONS
Section 397 of the Code of Criminal Procedure: The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding.
Section 23 of the POCSO Act: No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.
Sections 377 of the IPC: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine or both.
Section 34 of the IPC: when a criminal act is done by several persons with a common intention each of the person is liable for that act as it has been done by him alone.

COURT’S ANALYSIS AND JUDGEMENT
The perusal of the aforesaid provisions reflects that the reporting of the nature of incident as mentioned hereinabove is mandatory. Keeping in view of the object of the aforesaid sections, a timely intervention is necessary and important. But the aforesaid provision provides for punishment in case of non compliance of the provisions of Section 19 for reporting an offence and not a belated one. As has been noted in the impugned order that the charges qua the petitioner were framed vide order dated 18.04.2019 under Section 21 of the POCSO Act, which was challenged by way of revision petition before this Court, which was subsequently dismissed as withdrawn vide order dated 17.02.2020. Initially, the application under Section 319 of the Cr.P.C. on behalf of the petitioners was against respondent no. 2 herein and one Ms. G.K, i.e., mother of friend of the survivor, i.e., Master “MS”. It is a matter of record that the aforesaid Ms. G.K. is not being arrayed as a respondent in the present petition. the present case as noted above, respondent no. 2 had filed a complaint on the basis of which the present FIR had been registered, chargesheet was filed and the prosecution evidence stands complete. The delay in making the complaint by respondent no. 2 can be used as a defence by the petitioner during the course of the trial. It was pointed out by learned APP for the State, assisted by the learned counsel for the complainant that sufficient explanations have been given by respondent no. 2 and the survivour during their testimony to explain the delay.
This Court is not entering into the issue whether the said explanation was satisfactory or not, as the same is to be determined by the Learned Trial Court if such defence is taken by the petitioner during the course of the trial. For the purpose of this petition, it is suffice to say that the complaint filed by respondent no. 2 will not bring the case of the latter under Section 21 of the Act, which provides for punishment for “failure to report”. In the present case, respondent no. 2 has reported the case to the concerned authorities, in pursuance of which, the present FIR was registered. the present petition is dismissed and disposed of accordingly.

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Judgement Reviewed by –HARIRAGHAVA JP

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