Discouraging Parents From Reporting Child's Sexual Assault Not By Itself Offence Of Non-Reporting U/S 21 POCSO Act: Bombay High Court

Discouraging the parents of a minor from reporting an offence publishable under the stringent Protection Of Children from Sexual Offences (POCSO) Act would not be punishable under section 21 of the Act as it only punishes failure to report an offence under the Act, held the Bombay High Court on Wednesday (October 28). 

Single-judge Justice Hiten Venegavkar while discharging a man, booked for discouraging parents of a minor girl from reporting a sexual assault case, noted that section 21 only penalises non-reporting of such information to the police but the said provision does not speak about discouraging or threatening or even pressuring the parents not to report the crime. 

"It is equally necessary to distinguish between failure to report an offence and an allegation that a person prevented another from reporting it. Section 21(1) punishes failure to discharge the statutory reporting obligation. It does not expressly create a separate offence of threatening, intimidating or persuading another person not to lodge a complaint. Such conduct may constitute an offence under another penal provision if its ingredients are established. It may also be relevant evidence of deliberate non-reporting where the person concerned was himself under the statutory obligation. However, the allegation of pressure cannot be treated as a substitute for the essential ingredients of Section 21(1). The Court must examine whether the person had the requisite knowledge and whether there is sufficient material to proceed against him for failure to report," Justice Venegavkar held. 

Further, the judge said that the scope of section 21 cannot be enlarged merely because the allegation of pressuring the parents of the minor for not reporting the offence to the police are serious.  

"The allegation that the parents were discouraged or pressurised from approaching the police is a serious matter. If such conduct is established and satisfies the ingredients of any other penal provision, the law provides appropriate remedies. However, the seriousness of an allegation cannot justify prosecution under a provision whose essential ingredients are not sufficiently disclosed. The Court cannot enlarge the scope of Section 21 merely because the conduct alleged against an accused is considered objectionable. The protective object of the POCSO Act must be achieved through faithful application of its provisions and not by extending criminal liability beyond the statutory requirements," the judge said.

The judge however, clarified that the duty under section 19 to report such offences immediately to the police, would apply on one and all however, to prosecute someone for non-reporting under section 21 of the Act, the role of the said individual must be properly established and the ingredients of the said provision to must be met with.

"It is necessary to observe that the obligation to report sexual offences against children is an important safeguard intended to ensure that the victim receives timely protection and that the offender is brought before the law. Courts must remain conscious of the legislative purpose while interpreting Sections 19 and 21. Equally, the penal consequences prescribed by Section 21 require careful examination of the statutory ingredients. The object of protecting children is not advanced by indiscriminate prosecution of persons against whom the necessary ingredients are not disclosed. It is advanced by ensuring prompt reporting, effective investigation, protection of victims and prosecution of persons whose conduct attracts the provisions of law," the judge observed. 

The present conclusion, the judge explained, does not recognise any exemption from mandatory reporting in favour of social workers, village elders, elected representatives or their relatives and nor does it mean that a person who receives credible information about a sexual offence through the parents of the victim is outside the operation of Section 19. The statutory obligation remains applicable to every adult who acquires the requisite knowledge. The conclusion in the present case rests upon the insufficiency of the material establishing the applicant's individual criminal liability for the particular offence alleged against him, the judge said.

"The interpretation adopted herein preserves both the object of the legislation and the safeguards inherent in criminal law. The reporting obligation under Section 19 is wide and must be complied with whenever the requisite knowledge is acquired. A person receiving a credible disclosure of sexual assault against a child cannot avoid that obligation by undertaking a private inquiry, attempting a compromise or waiting for medical confirmation. At the same time, prosecution under Section 21 must be founded upon material disclosing the statutory ingredients against the particular accused. The law does not contemplate automatic prosecution of every person who comes into contact with the parents or participates in a subsequent discussion concerning the incident," the judge held. 

The instant detailed judgment was penned down by Justice Venegavkar while hearing the discharge plea of a man booked under section 21 on the allegations that he along with other villagers had discouraged parents of a minor girl, a victim of sexual assault at the hands of her school teacher, from reporting the case to the police. 

The allegation was that the petitioner, husband of the village Sarpanch and also a social worker along with other villagers, had pressurised the parents not to report the offence as the accused teacher had accepted his act and apologised for the same. 

The judge said that the special court wrongly interpreted section 21 and therefore, erred in refusing to discharge the petitioner from the case. The judge, thus, discharged him from the case, however, granted liberty to the special court to resort to the proper provisions in law and make him an accused, if during the trial, any incriminating material surfaces against him. 

With these observations, the bench disposed of the plea. 

Appearance:

Advocate KN Shermale appeared for Applicant.

Additional Public Prosecutor SD Ghayal represented the State

Advocate Sarika Maru Tekale was appointed to represent the Victim's Family.