No Liability On Officer Who Delayed Recording Informant/ Victim’s Statement Due To Absence Of Female Officer: Kerala Hc

CASE TITLE:

Hyder Ali v. State of Kerala

DATE OF ORDER:

24 July 2024

BENCH:

J. A. Badharudeen

PARTIES:

Petitioner/Accused: Hyder Ali
Respondent/State: State of Kerala

SUBJECT

The present case involves a challenge to a Special Judge’s decision refusing to incriminate the Investing Officer, PW-12 in a case registered under POCSO Act. The petitioner argued that the officer’s failure to promptly record the victim’s statement and register the FIR constituted a deliberate omission of act. The key issue consists of the procedural delays due to the absence of a woman police officer and whether such delays amounted to criminal negligence under the POCSO Act.   

IMPORTANT PROVISIONS

1. Section 19(2) of the POCSO Act: It states that police officer shall promptly record and register the crime upon receiving information about the commission of an offence under the Act.
2. Section 21 of the POCSO Act: This section provides penal consequences for failure to comply with Section 19(2).
3. Section 24 of the POCSO Act: This section mandates that the statement of a child victim shall be recorded by a female police officer not below the rank of Sub-Inspector.
4. Section 319 of the Cr.P.C.: This section allows the court to add new accused if convincing and compelling reasons are found during trial.

FACTS

1. On August 18, 2023, PWs 1 (the victim) and 2 (her mother) went to the Chavakkad Police Station to report the occurrence involving a cognizable crime under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). They arrived at the police station at about 9:30 p.m.
2. When they arrived, the Investigating Officer, PW12, was present at the police station. However, PW12 informed PWs 1 and 2 that there was no female police officer present at the time to record the victim's account. In compliance with Section 24 of the POCSO Act, which mandates that a minor victim's statement be recorded by a female police officer not lower than the level of Sub-Inspector, PW12 urged them to return the following day. PWs 1 and 2 returned to the police station on August 19, 2023. The victim's statement was taken at 11:30 a.m. on the same day, and the crime was registered.
3. Investigation and Legal Proceedings: After the crime was registered, the investigation continued, and a final report was submitted. The case has now reached the point when the defense evidence is being presented.
4. The petitioner filed a petition to add PW12 to the list of defendants. The petition alleged that PW12 failed to execute his statutory responsibility by failing to record and register the offense immediately, as required by Section 19(2) of the POCSO Act.
5. After reviewing the arguments, the Special Judge determined that the delay in recording the statement and filing the FIR was attributable to the procedural necessity of having a female police officer. The Judge found that the delay was not purposeful or malicious, and hence PW12 should not be charged as an additional accused.

ISSUES RAISED

1. Whether the Investigating Officer, PW12, should be impleaded as an additional accused for not immediately recording the victim's statement and registering the FIR under the POCSO Act.
2. Whether the procedural delay caused by the absence of a woman police officer amounted to a deliberate omission warranting criminal liability.

PETITIONER’S ARGUMENT

1. The petitioner's lawyer contended that PW12, the Investigating Officer, neglected to record the statement and register the offense immediately after receiving the report from PWs 1 and 2. Section 19(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) requires police officers to record statements and report crimes as soon as they receive information about the commission of an offense under the Act.
2. The petitioner stated that the statutory responsibility under Section 19(2) necessitates rapid action by the police officer. Failure to record the statement and report the offense as required will result in legal penalties under Section 21(1) of the POCSO Act. This section states that failing to comply with the statutory duty will result in imprisonment or fine.
3. The petitioner's counsel argued that, while Section 24 of the POCSO Act requires that the victim's statement be recorded by a woman police officer not lower than the rank of Sub-Inspector, this does not preclude the officer in charge from recording the statement in the absence of a woman police officer. The absence of a female police officer should not cause a delay in the registration of the offense or the recording of the statement, both of which are urgent legislative obligations.
4. The petitioner's counsel cited the ruling in Vasudevan Nair v. State of Kerala [2005 (1) KLJ 265], which established that an accused or co-accused can file a petition under Section 319 of the Cr.P.C. to seek the imposition of additional accused. The case law suggests that such a petition can be submitted if there are strong reasons to add more accused based on the existing information.
   5. The petitioner contended that PW12's inability to fulfill his statutory duties justified his impeachment as an extra accused. The argument was founded on the claim that such failure, if proven, constitutes a breach of duty that could result in criminal charges under the POCSO Act.

RESPONDENT’S ARGUMENT

1. The Public Prosecutor stated that, while PWs 1 and 2 arrived at the police station on August 18, 2023, at 9:30 p.m., the victim's statement could not be recorded right away due to the lack of a female officer. PW12, the Investigating Officer, returned PWs 1 and 2 with orders to return the next day, in compliance with Section 24 of the POCSO Act, which requires that a child victim's statement be recorded by a female police officer not below the rank of Sub-Inspector.
2. It was argued that PW12 behaved in the victim's best interest by ensuring that the statement was recorded by a female police officer as required. The statement was then recorded the following morning, on August 19, 2023, at 11:30 a.m., and the crime was swiftly registered.
3. The Public Prosecutor contended that any delay in recording the statement and filing the FIR was not intentional or purposeful. The delay was caused by the procedural requirement of having a female police officer present, but the statement was recorded quickly. The prosecutor maintained that because the statement was recorded and the offense was reported the next day, this minor delay should not result in punitive penalties under Section 21 of the POCSO Act.
4. It was also reported that the prosecution's evidence had been closed, and the matter had moved on to the defense stage. This suggests that, despite the initial delay, the case has made significant progress.
5. The Public Prosecutor stated that, while Section 19(2) of the POCSO Act demands timely documentation and reporting of crimes, it does not establish a specific time range. The absence of a female police officer did not absolve the requirement to record and register the crime; rather, it caused a little delay that was swiftly resolved.

JUDGEMENT ANALYSIS

1. The court looked at the statutory requirements required by the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). Section 19(2) requires a police officer to record the statement and register a crime immediately after receiving information about the commission of an offence under the Act. The court observed that, while this responsibility is statutory and urgent, Section 19(2) does not specify a precise time limit for fulfilling these tasks. As a result, the legislature intends to ensure that the procedure is completed as soon as feasible.
2. Section 24 of the POCSO Act requires that the child victim's statement be documented by a female police officer not below the level of Sub-Inspector. The court stated that, while this rule is intended to ensure sensitivity and appropriateness in dealing with instances involving child victims, it does not prohibit the recording of statements by other police officers in the absence of a female officer.
3. The court evaluated the victim's objections regarding the delay in recording her account. It was noticed that PW12 sent PWs 1 and 2 away due to the unavailability of a female police officer, instructing them to return the next day. The statement was recorded and the FIR was filed on August 19, 2023, with no major delay exceeding a few hours.
4. The court considered whether PW12's delay in recording the statement and reporting the FIR was a deliberate or malicious omission. The court determined that the delay was not deliberate, but rather owing to the procedural requirement of having a female police officer. The court noted that Section 24 was intended to assist a more suitable recording of comments, not to postpone the process forever.
5. Section 21 of the POCSO Act details the penalties for failing to complete statutory duties under Section 19(2). The court held that criminal penalties should be used only when there is a deliberate or willful failure to comply with the statutory requirements. Because the delay in this case was minor and due to procedural necessity, the court found no reason to hold PW12 criminally responsible under Section 21.
6. The court stated that, while Section 319 of the Code of Criminal Procedure provides for the addition of new accused based on strong evidence, such petitions should be carefully reviewed. In this case, the Special Judge concluded that PW12's refusal to register the offense immediately did not necessitate his inclusion as an additional accused.  
7. The court determined that the Special Judge's order was proper and did not require any interference. Given the circumstances, the petitioner's request to implead PW12 as an additional accused was deemed unwarranted. The petition was dismissed. The interim stay order has been vacated. The Registry is directed to forward a copy of this order to the Special Judge, Chavakkad, for further information and action. The Special Judge's decision to refuse the petition was based on the determination that the delay in registering the FIR and recording the statement was insignificant and was caused by the procedural requirement of having a female police officer. The delay did not indicate purposeful or willful neglect of duty.

CONCLUSION

In conclusion, the verdict underscores the concept that, while statutory compliance is critical, slight procedural delays should not inevitably result in criminal culpability, especially when no purposeful negligence is demonstrated. The Court's decision to sustain the Special Judge's order demonstrates a balanced approach, ensuring that procedural requirements are followed while also protecting against unjustified penalties