Mechanically Implicating Doctor U/S 21 POCSO Act For Not Reporting Crime Against Minor 'Absolute Injustice', Causes Mental Trauma: Kerala HC

The Kerala High Court has asked the investigating officers to be extra cautious while implicating doctors as accused for failing to report commission of crime against minor under Section 19 read with read with Section 21 of the POCSO Act. The Court further stated that arraying doctors mechanically in criminal proceedings as accused is absolute injustice and causes mental trauma to doctors which would prevent them from discharging their duties.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.Justice A. Badharudeen thus ordered that unwarranted implication of doctors in POCSO cases must be avoided unless there is deliberate intention or omission to report the commission of a crime. “It is noticed that doctors got arrayed as accused with the aid of Section 19 of the POCSO Act mechanically, without applying the mind of the investigating officer. This is nothing but absolute injustice and putting the doctors under mental trauma of criminal prosecution and the same would stand as a rider for the doctors in doing their duties promptly. Therefore, the investigating officers are specifically directed to be more cautious when doctors' involvement is doubted in POCSO offences and implication of doctors in criminal cases under the POCSO Act shall be avoided unless relevant materials do not justify the same.”As per the prosecution case, a minor was subjected to repeated sexual intercourse by the first accused. The petitioner, a 68 year old gynaecologist was arrayed as second accused for failing to report about the pregnancy of the minor to the police. It is alleged that the doctor came to know about the pregnancy when she examined the minor and conducted abortion without consent of the minor. She is alleged of committing offences under Sections 19 (reporting of offences), 21 (punishment for failure to report or record a case) of the POCSO Act and Sections 312 (causing miscarriage), 313 (causing miscarriage without woman's consent) of the IPC. She has approached the Court for quashing criminal proceedings against him pending before the Fast Track Special Court for POCSO Cases. The petitioner submitted that the victim was brought before her by her parents in her advanced stage of pregnancy and that she was told that the girl was 18 year old and married. The petitioner further clarified that she had no reason to suspect that this was a POCSO case. It was also submitted that the victim was brought with severe bleeding and symptoms of a possible miscarriage, and the petitioner's primary aim was to save the life of the minor, without intentionally causing an abortion. It was also submitted that the parents of the minor as well as the minor who posed as a major consented to the treatment. The Court referred to the Apex Court decision in Tessy Jose & Ors. v. State of Kerala (2018) wherein it was held that mere likelihood of suspicion was not sufficient but there must be grave suspicion that doctors knowingly failed to report about POCSO offence. In that case, the Apex Court acquitted doctors who were accused of committing offence under Section 19 of the POCSO Act by stating that it was not their obligation to investigate and gather knowledge regarding the age of the victim. In the facts of the case, the Court noted that the consultation records and hospital records show that the victim was aged 18 years. The Court thus stated that the doctor did not deliberately failed to inform police as he no occasion to find that the victim was under the age of 18 years. Court added, “As a natural phenomenon when a patient meets a doctor, the doctor would act upon the age disclosed by her and no rowing enquiry in this regard is mandated by law…. Fastening criminal liability under Section 21 of the POCSO Act r/w Section 19(1) cannot be based on irrelevant materials and subsequent facts brought into, for which the accused has no nexus…There is no need to scrabble about the age rather than believing it for the purpose of proceeding further.”The Court further stated that the victim was given treatment with bonafide attempt to save her life and there was no intention to cause miscarriage. The Court emphasized that investigating officers must apply their mind to form a prima facie opinion as to whether there was a deliberate intention on the part of the doctor in not reporting the crime against the minor. It stated that doctors must not be implicated in criminal cases unnecessarily and caution must be exercised by investigating officers before arraying doctors as accused for failing to report about crime. Court stated, “Doctors are bestowed with the duty to save the life of the patients and have been busily engaged in their vow. while implicating doctors in criminal cases with the aid of Section 19 of the POCSO Act, the investigating officer...

Mechanically Implicating Doctor U/S 21 POCSO Act For Not Reporting Crime Against Minor 'Absolute Injustice', Causes Mental Trauma: Kerala HC

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