She Is Herself A Victim: Delhi HC Sets Aside Charges Against Victim’s Mother For Failure To Report POCSO Offence Committed By Father

The Delhi High Court set aside the charges against a mother for failure to report an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) allegedly committed by father against their daughter.

The said victim’s mother had filed a petition against the order of the Additional Sessions Judge (ASJ) by which charges were framed against her under Section 19(1) of POCSO Act, punishable under Section 21 of POCSO Act.

A Single Bench of Justice Anish Dayal observed, “… letting the charge under Section 21 POCSO against petitioner, in the facts and circumstances of this case, would cause grave prejudice to not just the petitioner who herself is a victim, but also to the prosecutrix who is solely dependent upon her mother/petitioner for support.”

Advocate Kapil Madan appeared for the petitioner/mother while APP Pradeep Gahalot appeared for the respondent/State.

Factual Background -

An FIR was registered based on a complaint of the victim (petitioner’s daughter) who, at the time of commission of the alleged offence, was a minor girl aged 16 years. The FIR was registered under Sections 354, 354A, 377, 323, and 376 of the Indian Penal Code (IPC) and Sections 6 and 10 of the POCSO Act. On an application moved by the counsel for the accused, the petitioner (mother) was summoned to the Trial Court after which the order was passed by the ASJ, framing charges under Section 21 of POCSO Act against her for failure to report offences against her daughter (victim). As per the FIR, the victim had alleged that when she was in 7th Class, her father (accused) touched her in an inappropriate manner, followed her to the bathroom, closed the door from outside, and opened it after half an hour so that she would not complain about him.

Once when the victim was going to the washroom, her father allegedly held her from behind, touched her private parts and tried to insert his finger. She also alleged that her father had shown pornography to her on his mobile phone. She told her mother about the incident and then a quarrel took place between her parents. Later, she alleged that she was sexually assaulted by her father on several occasions and was also beaten by him. Furthermore, the father allegedly threatened to beat the petitioner (mother) up, in case the victim complained to anyone, so as to keep an eye on her. The accused/husband also alleged to have brutally beaten up the petitioner and threatened her in case she reported the alleged incidents. It was also complained that the father had unnatural sex with his wife (petitioner). Considering these incidents, her maternal uncle came and took her, the petitioner, and her younger brother to Kanpur, whereafter they registered the case.

The High Court in the above context of the case, said, “While most jurisdictions only have guidelines for failure to report and not delay, repercussions of the same vary from country to country. A duty of care exists in all commonwealth jurisdictions, towards the child. If she fails to report sexual abuse, duty of care has been breached when she fails to take reasonably practicable steps to avoid foreseeable and significant injury. However, considering that the mother was also a victim, a requirement to report may not fall under reasonably practicable steps. Tort law traditionally excuses the failure to report, so would excuse delay when reporting is present.”

The Court after going through the legislations of different countries regarding mandatory reporting with punitive consequences, remarked that, such provisions are enacted, so as to ensure deterrence against child sexual abuse and not in order to punish a victim which, unfortunately in a household with domestic violence, is at times inseparable.

“Mandatory reporting laws vis-à-vis child sexual abuse are designed with the intention to stop abuse against a child. There cannot be a straight-jacket formula where complex depraved conduct is involved and, as is the present case, along with the prosecutrix, the petitioner herself was under a threat from the accused person”, it added.

Accordingly, the High Court allowed the petition, set aside the charges framed against the petitioner mother, and directed that the trial shall proceed ahead against the main accused (father) in accordance with law.

Cause Title- ABC v. State NCT of Delhi (Neutral Citation: 2024:DHC:7124)

Appearance:

Petitioner: Advocates Kapil Madan, Gurmukh Singh Arora, and Vansh Bajaj.

Respondent: APP Pradeep Gahalot, Advocates Prachi Bahl, Varun Gupta, Ritu Sharma, and Gaurav Kaushik.

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