CASE TITLE:
State of Maharashtra and Anr Vs. Dr. Maroti s/o Kashinath Pimpalkar
DATE OF ORDER:
2 Novemeber 2022
JUDGES:
Justice Ajay Rastogi and Justice CT Ravikumar
PARTIES:
Petitioner: State of Maharashtra and Anr
Respondent: Dr. Marotis/o Kashinath Pimpalkar
SUBJECT
According to the Supreme Court, failing to disclose a sexual assault on a minor kid despite knowing about it is a serious criminal. The Bombay High Court’s decision to halt criminal proceedings against a medical professional accused of failing to disclose POCSO was overturned by the bench of Justices Ajay Rastogi and CT Ravikumar, who stated that it was usually an attempt to protect sexual assault offenders.
IMPORTANT PROVISIONS
Protection of Children from Sexual offences Act, 2012
- Section 19(1) - Reporting of offences - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) 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.
- Section 21 - Punishment for failure to report or record a case. - (1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.
(2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.
(3) The provisions of sub-section (1) shall not apply to a child under this Act.
BRIEF FACTS
- Due to allegations of sexual assault against young tribal students at Infant Jesus English Public High School in Rajura who were living in the school’s girls’ hostel, a FIR was filed against an unnamed person or persons. Integrated Tribal Development Project, Chandrapur Assistant Project Officer Rajesh Tulsidas Dhotkar filed the complaint. The appellant claims that on April 6, 2019, the officer in question received a phone call from Chhaban Pandurang Pachare, the superintendent of the hostel that is run by the Chandrapur-based Integrated Tribal Development Project, informing him that two girls enrolled in the school’s third and fifth grades were not doing well. He went to the hospital where they had been admitted right away.
- A medical certificate stating that there is a suspicion of sexual abuse was provided by the General Hospital in Chandrapur. The Integrated Tribal Development Project’s Project Officer in Chandrapur then gave him permission to file the complaint, and it was done so. We should note at this point that, according to Criminal Application (APL) No.841/2019, which was attached to the current appeal as Annexure-P3, the parents of the victims were dissatisfied with the investigation into the crime and filed Criminal Writ Petition No.342/2019. This was followed by the filing of Final Report / Charge-Sheet No.43/2019 on June 8, 2019.
- During the investigation, four people, including the hostel’s superintendent and Narendra Laxmanrao Virulkar, Sau Neeta alias Kalpana Mahadeo Thakare, Sau Lata Madhukar Kannake, and Venkateswami Bondaiyaa Jangam, were taken into custody and charged with the crime. 17 young girls who were assaulted by the accused were discovered to have hymen ruptures during the course of the investigation. The victim girls were brought to the respondent in this case, who is the physician designated to treat girls admitted to the aforementioned girls’ dormitory. The inquiry found that the respondent knew about the incidents because the victim girls had disclosed their sexual assault to the respondent in statements that were recorded in accordance with Section 161 of the Criminal Procedure Code.
- In fact, some of the victims explicitly said it in their statements that were recorded in accordance with Section 164 of the Criminal Procedure Code. The main accusation against the respondent is that he should have spoken up and helped the accused after learning that an offence under the POCSO Act had been committed because he was required by law, according to Section 19(1) of the POCSO Act, to inform the Special Juvenile Police Unit or the local police. Instead, he chose to remain silent. As previously mentioned, a charge sheet was also submitted following the investigation. The Respondent has been charged with the aforementioned offence as Accused No. 6.
- The respondent in this case filed an anticipatory bail application before the Ld. Sessions Judge on June 10, 2019, and that application was denied on June 25, 2019. The High Court heard a case challenging the aforementioned order, and it upheld the appeal and awarded him protection from arrest. The respondent in this case thereafter filed Criminal Application (APL) No.841/2019 under Section 482 of the Criminal Procedure Code in order to have the FIR from April 12, 2019, and the chargesheet from June 8, 2019, to the extent that they are against him, quashed. The FIR and the chargesheet against the defendant were both overturned by the High Court in the aforementioned ruling. this appeal, naturally.
ISSUES RAISED
- Whether the non-reporting of sexual assault against a minor, despite knowledge, is itself an offence?
JUDGMENT ANALYSIS
- The High Court reached the conclusion that the Respondent was not informed of the sexual assault committed on the victims and that there is no evidence to implicate him in the said crime after reading a victim’s teacher’s statement and the victim’s statements that sexual assault was only discovered from the General Hospital, Chandrapur.
- The charge-sheet indicates prima facie evidence against the respondent in regard to non-reporting of such an act under the POCSO Act, and the FIR raises suspicions of sexual assault. In the appellant’s case, some of the seventeen victims have admitted to the sexual assault in statements made under Section 161 of the Criminal Procedure Code and others under Section 164 of the same code. If that is the case, there is no question that the High Court should not have launched an investigation, particularly by examining the recorded statements of the victims as well as their instructor to establish an opinion regarding the existence of evidence linking the Respondent to the crime.
- It is accurate to say that the other accused is still covered by the FIR and the charge sheet. However, failing to disclose a sexual assault against a minor kid despite knowing about it is a serious felony and frequently represents an effort to protect the perpetrators of the crime.It is also pertinent to make reference to a finding issued by this Court in the aforementioned matter, according to which this Court, exercising parenspatriae jurisdiction, has a duty to issue instructions for compliance with the POCSO Act’s provisions.
- The learned attorney for the respondent made an effort to defend and uphold the impugned judgement by arguing that it was based on the ruling in A.S. Krishnan &Ors. v. State of Kerala11 and that, in light of that ruling, the respondent could not have been charged with failing to report the sexual assault under the POCSO Act despite knowing that it had occurred. After reading the ruling, the Supreme Court is compelled to declare that it is completely inappropriate under the facts and circumstances of this case for a number of reasons.
- First of all, a cursory reading of the aforementioned ruling would indicate that this Court did not address the issue of knowing at the point where it was examining the accuracy or otherwise of a finding of knowledge and the subsequent quashment of proceedings under Section 482, Cr.P.C. In actuality, it was taken into consideration in an appeal against the appellants’ conviction under Sections 471, 420, and 34 of the IPC. This Court was examining the phrase “knows or has reason to believe” that appears in Section 471 of the IPC.
- In the current instance, the High Court reached its conclusion that there was insufficient evidence to link the respondent to the alleged crime after reviewing the victim and victim’s teacher’s comments, which is an absolutely illegal course of action.The respondent’s aforementioned position should be rejected for yet another reason. The statements of some victims recorded under Section 161/164 of the Criminal Procedure Code were recorded far earlier than the contested judgement of April 20, 2021, i.e., in the year 2019 itself, and the court would not have even looked at Annexures A1 to A8.
- The court took this action simply to confirm the accuracy of the High Court’s conclusion that the respondent’s comments don’t reveal anything that suggests knowledge of the crime’s commission. In fact, the statements did speak of the respondent being informed by the victims of their sexual assault. At the risk of repeating themselves, they should hasten to emphasise that such statements recorded under Section 161/164 of the Criminal Procedure Code are not admissible as evidence.
CONCLUSION
In light of the decisions and rules mentioned above, the contested judgement that led to the quashment of the alleged FIR and the charge-sheet that choked off the prosecution at the gate without allowing the evidence supporting it to be seen by the public cannot be described as an action taken to uphold the interests of justice; rather, it can only be said that it led to a miscarriage of justice. As a result, the High Court’s contested decision is overturned, and the appeal is consequently granted. If there are any pending applications, they are rejected.
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