It Is Mandatory For A Parent To Inform About POCSO Offence Against Child To The Police: Punjab & Haryana HC
The Punjab and Haryana High Court observed that it is mandatory for a parent to inform about the offence against child to the police under Section 19 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
The Court observed thus in a batch of two petitions filed by a School Principal and the mother of the deceased child respectively.
A Single Bench of Justice Deepak Gupta held, “The use of the word ‘shall’ in Section 19(1) of the POCSO Act makes the intention of the legislature quite clear that it is mandatory for any person having knowledge of the offence to inform the Special Juvenile Police Unit [SJPU] or the local police. It is irrespective of the fact as to whether the concerned person having knowledge of the offence is part of some institution or the parent of the child or a friend etc. Section 21 of the POCSO Act provides punishment for failure to report or record a case.”
The Bench further said that the Sessions Court has power under Section 193 of the Criminal Procedure Code (CrPC) to summon a person as accused to stand trial, even if he has not been challaned by the police but who was named in the FIR and whose complicity in the crime appears from the evidence available on record.
Senior Advocate Indira Jai Singh appeared for the mother and Advocate Amitabh Tewari appeared for the Principal while Addl. AG Randhir Singh appeared for the State.
Brief Facts -
A very unfortunate incident happened in which a minor child aged about 16 years (student of Class X) committed suicide in 2022, leaving behind a suicide note blaming the school authorities for taking the extreme step. The mother of the child lodged an FIR under Section 306 of the Indian Penal Code (IPC) besides Sections 6,8,18, and 21 of the POCSO Act. It was alleged by her that around one year prior to the incident of suicide, boys in the school used to tease the deceased child by calling him ‘gay’ and used to misbehave with him. A complaint was made to the school management but no action was taken due to which the child was suffering from depression. Thereafter, the child had to write a science examination but since he was suffering from dyslexia, he was unable to solve numerical questions.
When the child sought help from the Head Mistress, she started scolding him due to which he got depressed and ultimately committed suicide. The mother prayed for taking action against the school management whereas, the school principal prayed for quashing of FIR. After dismissal of the principal’s petition, the matter was fixed before the Special Court for charge consideration and it was contended that the principal was made an accused under Section 21 of POCSO Act only on the ground that she failed to report the commission of offence to the police. However, the principal submitted that the child’s mother was aware about the offence and hence, equally responsible for not reporting matter to the police.
The High Court in view of the facts and circumstances of the case noted, “In this case, the email dated 23.09.2021 (Annexure R-2/7 in CRM-M-44425 of 2023), on which the mother-Axx has relied so as to contend that she had informed the school authorities about the bullying/ sexual harassment etc. of the deceased child, would make it clear that the mother-Axx had knowledge about the commission of offences covered under POCSO Act, much prior to when the information was given to the school authorities. As such, prima facie, the mother was mandatorily required to inform the local police or the SJPU about the same as per Section 19 of the POCSO Act.”
The Court observed that Section 193 CrPC would be applicable when the Sessions Court concerned, to whom a case has been committed, is required to consider whether to take cognizance or not, against such an accused, who though named in the FIR, but has not been challaned by the police, despite there being sufficient material against him in the evidence as collected during investigation by the Investigating Agency.
“Section 319 of the Code of Criminal Procedure (CrPC) becomes applicable when, during the trial after the filing of the challan and framing of the charge-sheet, evidence is presented indicating the involvement of a person, who was not initially charged by the police. In such cases, if the evidence establishes the person's complicity, the court may proceed to include them in the proceedings. To apply Section 319 CrPC, evidence led should be such that it shows more than a prima facie case as is exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction”, it said.
The Court further said that every case has its own facts and circumstances, which may compel the Court concerned to adopt a procedure, not barred by law, as per the facts and circumstances and it is true that Section 33 of the POCSO Act or Section 193 of CrPC do not provide for serving a notice to the proposed accused, but at the same time, there is no such bar to serve a notice in the facts and circumstances of a particular case.
“Usually, a Court is not required to serve any such notice, but in the present case, the proposed accused i.e., mother Axx is the complainant of the FIR. She is also the victim, being the mother of deceased child. As is evident from the impugned order dated 18.07.2023 of the Special Court, the proposed accused i.e. mother-Axx, in her capacity as complainant of the FIR/victim was present in the Court along with her counsel at the time when application was moved”, it added.
Accordingly, the High Court dismissed both the petitions.
Cause Title- Surjeet Khanna v. State of Haryana and Another (Neutral Citation: 2024:PHHC:023004)
Appearance:
Senior Advocate Indira Jai Singh, Addl. AG Randhir Singh, Advocates Amitabh Tewari, Rajesh Lamba, Ganesh Sharma, Rohin Bhatt, Abhijeet Sharma, and ADS Sukhija (Amicus Curiae).
