Offence U/s 21 POCSO Act Won't Attract Against Investigation Officer If Some Delay Occurs In Waiting For Woman Police Officer To Record Victim's Statement: Kerala HC

The Court however clarified that when considering whether an offence under Section 21 of the Protection of Children from Sexual Offences Act (POCSO), 2012 is committed by the police officer, the Court should have to evaluate whether there was a deliberate or willful omission in recording the statement.

A Single Bench of Justice A. Badharudeen observed, “In a case, if the police officer waits to facilitate recording of the statement by a woman police officer, so that the victim/informant could candidly state each and eveything without hesitation, and while making such an attempt if some delay which was not deliberate or willful occurs, it is not safe to fasten criminal culpability upon him. No doubt, when there is deliberate or willful delay in recording and registering crime on getting information regarding commission of offences under the POCSO Act, Section 21 of the POCSO Act would squarely apply.”

Advocate E.A. Haris appeared for the petitioner, while PP M.P. Prasanth represented the respondent.

The petition was filed to challenge the order of a Special Court which refused to implead the investigating officer as an additional accused under Section 21 of the POCSO Act. The argument of the petitioner revolved around the alleged failure of the investigating officer to immediately record the statement of the victim upon receiving information about the commission of a cognizable offence under the POCSO Act.

The petitioner argued that both the victim and her mother reached the police station to give their statements. According to the petitioner, the investigating officer had a statutory duty to record the statement immediately and register a crime as mandated by Section 19(2) of the POCSO Act. Failure to do so, the petitioner contended, would attract penal consequences under Section 21(1) of the POCSO Act.

The Court explained that in the absence of a woman police officer not below the rank of a Sub-Inspector, the officer incharge of the police station himself was competent and duty bound to record the statement of the child victim or the informant.

“The spirit of Section 24 is that as far as possible, the statement of the victim or the informant of an offence of sexual assault under the POCSO Act to be recorded by a woman police officer not below the rank of a Sub-Inspector, to ensure proper recording of the statement and also to avoid hesitance to the victim or the informant to state all the overt acts because of the gender disparity,” the Bench remarked.

The Court stated that Section 24 of the POCSO Act intended to ensure that the grievance of the victim/informant of POCSO offences should be recorded “in it's letter and spirit” providing the victim/informant to disclose the same before a woman police officer without hesitation and delicacy.

However, the Court clarified that in the facts of the case, the statement was recorded on the next day morning and crime was registered. “In such a case, it is unjust to hold that PW12/ the Investigating Officer deliberately failed to record the statement of the victim and to register the crime as against the mandate of Section 19 (2) so as to attract an offence punishable under Section 21 of the POCSO Act,” the Bench added.

Consequently, the Bench held, “In view of the above discussion, the Special Judge has rightly disallowed the petition to implead PW12 as additional accused. The said order doesn't require any interference.”

Accordingly, the High Court dismissed the petition.

Cause Title: Hyder Ali v. State of Kerala (Neutral Citation: 2024/KER/55333)

Appearance:

Petitioner: Advocates E.A.Haris, M.A.Ahammad Saheer, Muhammed Yasil and Anil K.Muhamed

Respondent: Public Prosecutor M.P.Prasanth

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