Code of Criminal Procedure, 1973: s.482 – Quashing of F.I.R. and charge sheet – Non Reporting of Sexual Assault – FIR registered against unidentified person(s) on the accusation of commission of sexual offences against minor tribal girls who were residing in the girls’ hostel – Respondent is the medical practitioner who was appointed for treatment of the girls in the said girl’s hostel – He was arraigned as the sixth accused thereunder, essentially for the failure to report the commission of the offence under the POCSO Act, punishable u/s.21 (1) the POCSO Act – Respondent filed Criminal Application u/s. 482 seeking quashment of the FIR and the chargesheet to the extent they are against him – High Court quashed the FIR as also the charge sheet qua the respondent – Hence, the instant appeal – Held: Prompt and proper reporting of the commission of offence under the POCSO Act is of utmost importance – Failure to report on coming to know about the commission of any offence thereunder would defeat the very purpose and object of the Act – If FIR and the materials collected disclose a cognizable offence and the final report based on it reveal the ingredients to constitute an offence under the POCSO Act and a prima facie case against the persons named therein as accused, then the truthfulness, sufficiency or admissibility of the evidence are not matters falling within the purview of exercise of power under s.482 – High Court should not have embarked upon an enquiry, especially by looking into the statements of the victims and their teacher to form an opinion regarding the availability of evidence to connect respondent with the crime – In troth, those statements did mention about divulgation of sexual assault on them by victims to the respondent – High Court was not justified in bringing abrupt termination of the proceedings qua the respondent – There was prima facie case against the respondent for the offence – Protection of Children from Sexual Offence Act, 2012 – ss.19, 21 – Evidence Act – s.59 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – ss. 3(1)(w) , 3(2)(v) – Crime against children. Protection of Children from Sexual Offence Act, 2012: Object and Purpose – Held: Recognising the constitutional obligation and keeping in view the fundamental concept under Art.15 of the Constitution and also realizing that sexual offences against children are not adequately addressed by the existing laws, POCSO Act was enacted – The provisions thereunder would reveal that it also aims to ensure that such offenders are not spared and should be properly booked – Non-reporting of sexual assault against a minor child despite knowledge is a serious crime and more often than not, it is an attempt to shield the offenders of the crime of sexual assault. Code of Criminal Procedure, 1973: ss.161, 164 – Admissibility of – Statements recorded under s.161 are inadmissible in evidence and its use is limited for the purposes as provided under ss.145 and
157 of the Evidence Act, 1872 – As a matter of fact, statement recorded under s.164 can also be used only for such purposes – Evidence Act, 1872 – ss.145, 157.
Allowing the appeal, the Court
HELD: 1. Exercise of power under Section 482 Cr.P.C. is an exception and not the rule and it is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. [Para 7][827-D-E]
2. Prompt and proper reporting of the commission of offence under the POCSO Act is of utmost importance and its failure on coming to know about the commission of any offence thereunder would defeat the very purpose and object of the Act. Prompt reporting of the commission of an offence under POCSO Act would enable immediate examination of the victim concerned and at the same time, if it was committed by an unknown person, it would also enable the investigating agency to commence investigation without wasting time and ultimately to secure the arrest and medical examination of the culprit. There can be no two views that in relation to sexual offences medical evidence has much corroborative value. [Para 15][830-F-G; 831-B-C]
3. If FIR and the materials collected disclose a cognizable offence and the final report filed under Section 173(2), Cr.P.C. on completion of investigation based on it would reveal that the ingredients to constitute an offence under the POCSO Act and a prima facie case against the persons named therein as accused, the truthfulness, sufficiency or admissibility of the evidence are not matters falling within the purview of exercise of power under Section 482 Cr.P.C. and undoubtedly they are matters to be done by the Trial Court at the time of trial. [Para 18][831-H; 832-A]
4. The High Court arrived at the finding of absence of evidence to implicate the respondent in the crime in question upon going through the statements of the victims and also the statement of the teacher of the victims, which recourse is absolutely impermissible. In troth, those statements did mention about divulgation of sexual assault on them by victims to the respondent. In the light of the circumstances available and in the light of Section 59 of the Evidence Act, the High Court was not justified in bringing abrupt termination of the proceedings qua the respondent. There is prima facie case against the respondent for the offence referred above and hence, the appeal is liable to succeed.The impugned judgment resulting in quashment of the stated FIR and the charge-sheet throttling the prosecution at the threshold, without allowing the materials in support of it to see the light of the day, cannot be said to be as an exercise done to secure interests of justice whereas it can only be stated that such exercise resulted in miscarriage of justice. [Paras 2325][835-E-F; G-H; 836-A-C] R.P. Kapur v. State of Punjab A.I.R. 1960 S.C. 866; Vijay Madanlal Choudhary & Ors. v. Union of India & Ors. 2022 SCC OnLine SC 929; M.L. Bhatt v. M.K. Pandita 2002 (3) SC 899- followed.
A.S. Krishnan & Ors. v. State of Kerala (2004) 11 SCC
576 : [2004] 3 SCR 44 – held inapplicable.
State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259; State of M.P v. Awadh Kishore Gupta & Ors. (2004) 1 SCC
691 : [ 2003] 5 Suppl. SCR 672; Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 SCC 546 : [ 2013] 6 SCR 949; Rajeev Kourav v. Baisahab & Ors. (2020) 3 SCC 317 – relied on.
Shalu Ojha v. Prashant Ojha (2015) 2 SCC 99; Dr. Monica Kumar & Anr. v. State of Uttar Pradesh & Ors. (2008) 8 SCC 781 : [ 2008] 9 SCR 943; Shiji alias Pappu and Ors. v. Radhika and Another AIR 2012 SC 499- referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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