Supreme Court: In a case where the Bombay High Court has quashed the FIR against a medical practitioner in relation to misprision of sexual assault against minor tribal girls in a girls’ hostel, the bench of jay Rastogi and CT Ravikumar*, JJ has set aside the judgment and has shown disappointment that a legitimate prosecution under another Act viz., the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), has been throttled at the threshold by the exercise of power under Section 482 of the Code of Criminal Procedure, 1973(CrPC), without permitting the materials in support to it to see the light of the day.

The unfortunate case

The case relates to the sexual assault of 17 minor tribal girls in a girl’s hostel. Upon examination of two girls who were not keeping well, the General Hospital issued a medical certificate that there was suspicion of sexual abuse. A case was, hence, registered against 5 persons including the Superintendent of the Hostel under Section 376-AB of the Penal Code, 1860, Section 4 and 6 of POCSO Act, Section 3(1)(w) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 3 of the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori, Practices and Black Magic Act, 2013.

Why was the medical practitioner arraigned as an accused?

The respondent, who is a medical practitioner, was appointed for treatment of girls admitted to the said Girls’ hostel and the victim girls were taken to him. During investigation, it was found that 17 minor girls were abused by the accused and on their medical examination rupture of hymen was found. The girls also revealed that the respondent had knowledge about the incidents occurred, as they has informed the respondent about their divulgation of sexual assault on them.

The respondent was, hence, arraigned as the 6th accused for the failure to report the commission of the offence under the POCSO Act, in compliance with the legal obligation under Section 19 (1) of POCSO Act, punishable under Section 21 (1) thereof as was under a legal obligation to provide such information either to the Special Juvenile Police Unit or the local police.

The quashment of FIR against him

Apprehending arrest, the respondent filed an anticipatory bail application before the Sessions Judge but the same was rejected. The Bombay High Court, however, granted him protection from arrest and went on to quash the FIR as also the chargesheet qua the respondent.

Supreme Court’s Observations

On importance of prompt reporting

Stressing on the importance of the legal obligation for reporting of offence under the POCSO Act, the Court observed that as making failure to discharge the obligation under Section 19 (1) punishable only with imprisonment for a short duration viz., six months, one may think that it is not an offence to be taken seriously. However, that by itself is not the test of seriousness or otherwise of an offence of failure to discharge the legal obligation under Section 19, punishable under Section 21 of POCSO Page 12 of 28 Act

“Prompt and proper reporting of the commission of offence under the POCSO Act is of utmost importance and we have no hesitation to state that its failure on coming to know about the commission of any offence thereunder would defeat the very purpose and object of the Act.”

It was further explained that a 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.

On scope of High Court’s power under Section 482 CrPC

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.

On the facts of the case  

In the case at hand, the High Court had formed an opinion on perusal of the statement of a teacher of the victims and also the statements of the victims that sexual assault was detected only from the General Hospital, Chandrapur and then arrived at the conclusion that the Respondent was not made aware of sexual assault committed on the victims and there is no evidence to implicate him in the said crime.

The Court held that the High Court should not have embarked upon an enquiry, especially by looking into the statements of the victims recorded as also their teacher to form an opinion regarding the availability of evidence to connect the Respondent with the crime.

“True that the FIR and the charge sheet still remain in fact in respect of the other accused. But then, 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.”

The Court, hence, set aside the judgment as the High Court had 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.

The Court observed that,

“The 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.”

[State of Maharashtra v. Maroti, 2022 SCC OnLine SC 1503, decided on 02.11.2022]

*Judgment by: Justice CT Ravikumar

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