Failure To Report POCSO Offences Not An Exception To Sanction For Prosecuting Public Servants U/S 197 CrPC Or U/S 218 BNSS: Kerala HC

The Kerala High Court has observed that Section 19 of POCSO Act which mandates reporting of POCSO offence is not carved out as an exception to Section 197 CrPC which pertains to requirement of sanction to prosecute public servants. In doing so the court observed that Section 197 CrPC/Section 218 BNSS are meant to safeguard the public servants from being dragged into vexatious proceedings while discharging official duty. Discussing an interplay between both these provisions, a single-judge Bench of Justice K Babu held:“Section 197 of the Cr.PC and Section 218 of the BNSS are intended to operate as a safeguard against public servants from being dragged into vexatious proceedings for having discharged their official duties. The legislature appears to have perceived that the defence of having committed the offences in the course of discharge of duty is not available in most of the offences under the POCSO Act. Such defences are available only in cases of physical examination by medical practitioners, physical education teachers, etc. In those cases, it is possible for the court to adjudicate the applicability of the safeguard extended by Section 197 of the Cr.PC after considering the facts. The offences under Chapter V of the POCSO Act are not carved out as an exception to Section 197 of the Cr.PC or in Section 218 of the BNSS. Applying the lex posteriori rule, it is manifest that the parliament has consciously did not include the offence under Section 19 read with Section 21 of the POCSO Act as an exception to Section 197 of the Cr.PC or under Section 218 of the BNSS.''Section 19 POCSO Act states that "notwithstanding anything contained in the Code of Criminal Procedure, any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to, (a) the Special Juvenile Police Unit; or (b) the local police". In the present case, the allegations against the accused, a former chairman of the Child Welfare Committee Thrissur, were of non-reporting offences under the Act to the police. However, the accused claimed that he directly informed the police about the matter the next day. One of the issues before the court was consideration whether there was any degree of inconsistency between Section 19 of the POCSO Act and the relevant provisions in the Cr.P.C. For context, Section 197 CrPC states that when any person who is or was a Judge or Magistrate or a public servant not removable from his officer save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with previous sanction. The explanation to the provision states that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of IPC. The Bench discussed that as per Section 42A (Act not in derogation of any other law) of POCSO Act, the Act's provisions shall be in addition to and not in derogation of the provisions of any other law. Further, in case of any inconsistency, the provisions of the Act shall have an overriding effect to the extent of such inconsistency."The non-derogative provision in Section 42A of the POCSO Act expresses the legislative intent not to detract from or abrogate the provisions of the Code of Criminal Procedure altogether in its applicability to the offences under the POCSO Act. The principle of the subject matter test and the particular perspective test makes it clear that the operation of the nonobstante clause in Section 19 of the POCSO Act is restricted to the overlapping subject matters prescribed in the Code of Criminal Procedure or in the BNSS. Section 42A of the POCSO Act has restricted the operation of the non-obstante clause to the subject matters over which the special law shall have an overriding effect on the general law," the court observed. The court said that Section 19 of the POCSO Act does not refer to any particular provision of the Code of Criminal Procedure. Taking its cue from this, the Court said that the non-obstante clause in Section 19 is restricted only to the contradictory provisions of the CrPC. It went on to observe that Section 197 acts as a safeguard for public servants and prevents them from vexatious proceedings. It further opined that Parliament consciously did not include Section 19 as an exception to Section 197.“The principle of the subject matter test and the particular perspective test makes it clear that the operation of the nonobstante clause in Section 19 of the POCSO Act is restricted to the overlapping subject matters prescribed...

Failure To Report POCSO Offences Not An Exception To Sanction For Prosecuting Public Servants U/S 197 CrPC Or U/S 218 BNSS: Kerala HC

Gyanvi Khanna

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