Not Mandatory To Obtain Sanction To Prosecute Public Servant For Failing To Report POCSO Offences, S. 19 Contains Non-Obstante Clause: Kerala HC

The Court made this ruling on noting that Section 19 which mandates reporting of POCSO offences begins with a non-obstante clause, 'Notwithstanding anything contained in the Code of Criminal Procedure 1973' and thus it excludes the applicability of Section 42A of the Act.

It is to be noted that Section 42A (Act not in derogation of any other law) of POCSO Act states that provisions of the Act shall be in addition to and not in derogation of the provisions of any other laws.

Justice A. Badharudeen observed that Section 42A of the Act has to be read in exclusion to Section 19 which begins with a non-obstante clause.

Court stated, “It is true that as per Section 42A of POCSO Act the provisions of POCSO Act shall be in addition to and not in derogation of any other case for the time being in force. But Section 42A of the POCSO Act to be read in exclusion of the provision where non-obstante clause is provided, for its applicability…When a non- obstante clause is used specifically in Section 19, as far as Sections 19 and 21 are concerned, Section 42A would not apply, thereby Section 197 of Cr.P.C or Section 218 of BNSS would not have any application to Section 19 r/w 21 of the POCSO Act. The precept of the discussion leads to hold that in order to prosecute a public servant for the offence under Section 21 r/w Section 19 of POCSO Act, sanction under Section 197 of Cr.P.C or under Section 218 of BNSS is not mandatory.”

Section 19 of the POCSO Act put a legal obligation on a person to inform the relevant authorities when there is knowledge that an offence under the Act had been committed. Section 21 deals with the punishment for failing to report or record a sexual offence.

As per prosecution allegations, a 13 year old minor became pregnant due to penetrative sexual assault. It is alleged that the petitioner (arrayed as second accused), a government doctor who despite having knowledge of the commission of the POCSO offences failed to report it to the police.

The petitioner filed an application seeking discharge which was dismissed by the Special Court.

Aggrieved by the dismissal, the petitioner has filed this criminal revision petition seeking discharge. It was argued that sanction was required under Section 197 CrPC for prosecution of a government servant.

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 Court noted that Section 19 begins with a non-obstante clause, thus excluding the applicability of Section 42A. It thus stated that it was not mandatory to obtain sanction to prosecute a public servant under Section 19 read with 21 for failing to report POCSO offences.

Facts

In the facts of the case, the Court found that the petitioner got to know about the pregnancy of the minor victim on November 25, 2020 and failed to report it to the police. It noted that the police registered the crime only on December 12, 2020. The Court thus stated that the investigation of the crime was delayed by a period of three weeks, due to non-reporting of the POCSO offence by the petitioner.

The Court thus stated that prima facie case is made out against the petitioner warranting trial. As such, the Court dismissed the revision petition.

Counsel for Petitioner: Advocates Sarath Babu Kottakkal, Renjith B.Marar, Archana Vijayan

Counsel for Respondent: Public Prosecutor Jibu T.S.

Case Title: Dr Ditto Tom P. v State of Kerala

Case No: Crl.Rev.Pet No. 971 Of 2024

Citation: 2025 LiveLaw (Ker) 136