THE STATE OF MAHARASHTRA & ANR. versus DR. MAROTI S/O KASHINATH PIMPALKAR on 2 November 2022

[2022] 8 S.C.R. 821

THE STATE OF MAHARASHTRA & ANR.

v.

DR. MAROTI S/O KASHINATH PIMPALKAR

(Criminal Appeal No.1874 of 2022)

NOVEMBER 02, 2022

[AJAY RASTOGI AND C.T. RAVIKUMAR, JJ.]

Code of Criminal Procedure, 1973: s.482 – Quashing of F.I.R.and charge sheet – Non Reporting of Sexual Assault – FIR registeredagainst unidentified person(s) on the accusation of commission ofsexual offences against minor tribal girls who were residing in thegirls’ hostel – Respondent is the medical practitioner who wasappointed for treatment of the girls in the said girl’s hostel – Hewas arraigned as the sixth accused thereunder, essentially for thefailure to report the commission of the offence under the POCSOAct, punishable u/s.21 (1) the POCSO Act – Respondent filedCriminal Application u/s. 482 seeking quashment of the FIR andthe chargesheet to the extent they are against him – High Courtquashed the FIR as also the charge sheet qua the respondent –Hence, the instant appeal – Held: Prompt and proper reporting ofthe commission of offence under the POCSO Act is of utmostimportance – Failure to report on coming to know about thecommission of any offence thereunder would defeat the very purposeand object of the Act – If FIR and the materials collected disclose acognizable offence and the final report based on it reveal theingredients to constitute an offence under the POCSO Act and aprima facie case against the persons named therein as accused,then the truthfulness, sufficiency or admissibility of the evidenceare not matters falling within the purview of exercise of power unders.482 – High Court should not have embarked upon an enquiry,especially by looking into the statements of the victims and theirteacher to form an opinion regarding the availability of evidence toconnect respondent with the crime – In troth, those statements didmention about divulgation of sexual assault on them by victims tothe respondent – High Court was not justified in bringing abrupttermination of the proceedings qua the respondent – There was primafacie case against the respondent for the offence – Protection ofChildren from Sexual Offence Act, 2012 – ss.19, 21 – Evidence Act

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A– s.59 – Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 – ss. 3(1)(w) , 3(2)(v) – Crime against children.

Protection of Children from Sexual Offence Act, 2012: Objectand Purpose – Held: Recognising the constitutional obligation andkeeping in view the fundamental concept under Art.15 of theBConstitution and also realizing that sexual offences against childrenare not adequately addressed by the existing laws, POCSO Act wasenacted – The provisions thereunder would reveal that it also aimsto ensure that such offenders are not spared and should be properlybooked – Non-reporting of sexual assault against a minor childdespite knowledge is a serious crime and more often than not, it isCan attempt to shield the offenders of the crime of sexual assault.

Code of Criminal Procedure, 1973: ss.161, 164 – Admissibilityof – Statements recorded under s.161 are inadmissible in evidenceand its use is limited for the purposes as provided under ss.145 and157 of the Evidence Act, 1872 – As a matter of fact, statementDrecorded 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. isEan exception and not the rule and it is to be exercised ex debitojustitiae to do real and substantial justice for the administrationof which alone Courts exist. [Para 7][827-D-E]

Conclusion

2. Prompt and proper reporting of the commission of offenceunder the POCSO Act is of utmost importance and its failure onFcoming to know about the commission of any offence thereunderwould defeat the very purpose and object of the Act. Promptreporting of the commission of an offence under POCSO Actwould enable immediate examination of the victim concerned andat the same time, if it was committed by an unknown person, itwould also enable the investigating agency to commenceGinvestigation without wasting time and ultimately to secure thearrest and medical examination of the culprit. There can be notwo views that in relation to sexual offences medical evidencehas much corroborative value. [Para 15][830-F-G; 831-B-C]

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THE STATE OF MAHARASHTRA & ANR. v. DR. MAROTI S/OKASHINATH PIMPALKAR

3. If FIR and the materials collected disclose a cognizableoffence and the final report filed under Section 173(2), Cr.P.C. oncompletion of investigation based on it would reveal that theingredients to constitute an offence under the POCSO Act and aprima facie case against the persons named therein as accused,the truthfulness, sufficiency or admissibility of the evidence arenot matters falling within the purview of exercise of power underSection 482 Cr.P.C. and undoubtedly they are matters to be doneby the Trial Court at the time of trial. [Para 18][831-H; 832-A]

4. The High Court arrived at the finding of absence ofevidence to implicate the respondent in the crime in questionupon going through the statements of the victims and also thestatement of the teacher of the victims, which recourse isabsolutely impermissible. In troth, those statements did mentionabout divulgation of sexual assault on them by victims to therespondent. In the light of the circumstances available and in thelight of Section 59 of the Evidence Act, the High Court was notjustified in bringing abrupt termination of the proceedings quathe respondent. There is prima facie case against the respondentfor the offence referred above and hence, the appeal is liable tosucceed.The impugned judgment resulting in quashment of thestated FIR and the charge-sheet throttling the prosecution atthe threshold, without allowing the materials in support of it tosee the light of the day, cannot be said to be as an exercise doneto secure interests of justice whereas it can only be stated thatsuch exercise resulted in miscarriage of justice. [Paras 23-25][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 SCC576 : [2004] 3 SCR 44 – held inapplicable.

State of Haryana & Ors. v. Bhajan Lal & Ors. 1992Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259; Stateof M.P v. Awadh Kishore Gupta & Ors. (2004) 1 SCC691 : [ 2003] 5 Suppl. SCR 672; Shankar KisanraoKhade v. State of Maharashtra (2013) 5 SCC 546 :

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A[ 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 aliasBPappu and Ors. v. Radhika and Another AIR 2012 SC499- referred to.

From the Judgment and Order dated 20-04-2021/27-04-2021 ofthe High Court of Judicature at Bombay at Nagpur in CRLA (APL) No.F841/2019.

Sanjay Kharde, Siddharth Dharmadhikari, Aaditya AniruddhaPande, Advs. for the Appellants.

Anil Mardikar, Sr. Adv., Sumeet Joshi, Sachin Shanmukham Pujari,GAdvs. for the Respondent.

The Judgment of the Court was delivered by

C. T. RAVIKUMAR, J.

1. Leave granted.

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2. This Court in Shalu Ojha v. Prashant Ojha[1]observed: “this isan unfortunate case where the provisions of the Protection of Womenfrom Domestic Violence Act, 2005 are rendered simply a pious hope ofthe Parliament and a teasing illusion for the appellant”. Even while,borrowing those words, we may say, we are not peeved, but certainlypained, as a legitimate prosecution under another Act viz., the Protectionof Children from Sexual Offences Act, 2012 (for short “POCSO Act”),has been throttled at the threshold by the exercise of power under Section482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’), withoutpermitting the materials in support to it to see the light of the day inrespect of misprision of sexual assault against minor tribal girls in a girls’hostel. As per the impugned judgment, the High Court of Judicature atBombay, Nagpur Bench in Criminal Application (APL) No.841 of 2019dated 20.04.2021 quashed FIR No.185 of 2019 dated 12.04.2019 of RajuraPolice Station and the final report filed thereon under Section 173(2),Cr.P.C. qua the Respondent. The raison d’etre for the said openingremarks would be unraveled by the factual narration and the legal analysisto be made hereinafter.

3. The stated chargesheet was laid on investigation in FIR No.185/2019 registered at Rajura Police Station, Distt. Chandrapur, for theoffences under Section 376AB of the Indian Penal Code, 1860, Section4 and 6 of POCSO Act, Section 3(1)(w) and 3(2)(v) of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 andSection 3 of the Maharashtra Prevention and Eradication of HumanSacrifice and other Inhuman, Evil and Aghori Practices and Black MagicAct, 2013. We may hasten to add that it was filed under those Sectionsagainst the first five accused and in fact, the Respondent herein wasarraigned as the 6[th] accused thereunder, essentially for the failure toreport the commission of the offence under the POCSO Act (then, ofcourse by unknown persons), in compliance with the legal obligationunder Section 19 (1) of POCSO Act, punishable under Section 21 (1)thereof.

4. The stated FIR came to be registered against unidentifiedperson(s) on the accusation of commission of sexual offences againstminor tribal girls who were students of Infant Jesus English Public HighSchool, Rajura residing in its girls’ hostel. The complaint was lodged byone Rajesh Tulsidas Dhotkar, Assistant Project Officer, Integrated Tribal A

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ADevelopment Project, Chandrapur. According to the appellant, on06.04.2019 the said officer received a telephonic information fromChhaban Pandurang Pachare, the Superintendent of the said hostel whichis under the control of the Integrated Tribal Development Project,Chandrapur that one girl studying in the 3[rd] standard and another studyingin the 5[th] standard, of the said school were not keeping well. Immediately,Bhe visited the hospital where they were admitted. Later, he receivedletter No. 3392/2019 dated 10.02.2019 revealing that the students wereshifted from Rural Hospital Rajura to General Hospital, Chandrapurowing to their deteriorating health condition. From the General Hospital,Chandrapur a medical certificate was issued to the effect that there isCsuspicion of sexual abuse. Thereupon, the Project Officer, IntegratedTribal Development Project, Chandrapur authorised him to lodge thecomplaint and accordingly, it was laid. We may state at this juncture thatgoing by Criminal Application (APL) No.841/2019, filed along with thepresent Appeal as Annexure-P3, the parents of the victims were nothappy with the investigation in the crime and they filed a Criminal WritDPetition No.342/2019 and subsequently, Final Report / Charge-SheetNo.43/2019 dated 08.06.2019 was filed.

5. Now, reverting to the case of the appellant, it is to the effectthat during the investigation, Superintendent of the aforementioned hosteland four others, namely, Narendra Laxmanrao Virulkar, Sau Neeta aliasEKalpana Mahadeo Thakare, Sau Lata Madhukar Kannake,Venkateswami Bondaiyaa Jangam were arrested and arraigned asaccused in the crime. During the investigation, it was found that 17 minorgirls were abused by the accused and on their medical examination ruptureof hymen was found. The respondent herein is the Medical PractitionerFappointed for treatment of girls admitted to the said Girls’ hostel and thevictim girls were taken to him. The investigation revealed that therespondent had knowledge about the incidents occurred, from the victimsthemselves as the victim girls revealed in their statements recorded underSection 161 of Cr.P.C. about their divulgation of sexual assault on them to the respondent. In fact, some of the victims had specifically revealedGit in their statements recorded under Section 164 Cr.P.C. The respondentwho was under a legal obligation, in terms of the provisions under Section19(1) of the POCSO Act upon getting the knowledge about committingof an offence under the POCSO Act, to provide such information eitherto the Special Juvenile Police Unit or the local police remained silent andHdid not provide such information to help the accused, is the gist of the allegation against him. As already stated, after investigation a chargesheet was also filed. The Respondent has been arraigned as accusedNo. 6 in the aforesaid crime.

6. Apprehending arrest in connection with the said crime, therespondent herein filed an anticipatory bail application before the Ld.Sessions Judge on 10.06.2019 and the same was rejected on 25.06.2019.The said order was challenged before the High Court and the HighCourt allowed the appeal and granted him protection from arrest.Thereafter, the respondent herein filed Criminal Application (APL)No.841/2019 under Section 482 of the Cr.P.C. seeking quashment of theFIR dated 12.04.2019 and the chargesheet dated 08.06.2019 to the extentthey are against him. The High Court passed the impugned judgmentand quashed the FIR as also the chargesheet qua the respondent. Hence,this appeal.

7. Before considering the merits of the challenge against theimpugned judgment whereby and whereunder the stated FIR and thechargesheet were quashed, we think it appropriate to refer to certainaspects and also the position with respect to scope of exercise of powerunder Section 482 Cr.P.C. Exercise of power under Section 482 Cr.P.C.is an exception and not the rule and it is to be exercised ex debitojustitiae to do real and substantial justice for the administration of whichalone Courts exist. This position has been stated and reiterated by thisCourt time and again.

8. This Court in the decision in R.P. Kapur v. State of Punjab[2],heldthat the High Court could not embark upon an enquiry as to whether theevidence is reliable or not while exercising the power under Section 482Cr.P.C. In State of Haryana & Ors. v. Bhajan Lal & Ors.[3],at paragraph102 this Court held that quashing may be appropriate where the allegationsmade in the First Information Report or the complaint, even if taken attheir face value and accepted in their entirety, do not prima facie constituteany offence or make out a case against the accused and where theallegations in the First Information Report and other materials, if any,accompanying the F.I.R. do not disclose a cognizable offence, justifyingan investigation by police officers under Section 156(1) of the Codeexcept under an order of a Magistrate within the purview of Section155(2) of the Code.

2 A.I.R. 1960 S.C. 866

3 1992 Supp (1) SCC 335

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A9. In the decision in State of M.P v. Awadh Kishore Gupta &Ors.[4], this Court held that the High Court could not embark upon anenquiry as to whether the evidence is reliable or not as that would be thefunction of the Trial Court. In Dr. Monica Kumar & Anr. v. State ofUttar Pradesh & Ors.[5], this Court held that the inherent power underSection 482 Cr.P.C. should not be exercised to stifle a legitimateBprosecution. In Shiji alias Pappu and Ors. v. Radhika and Another[6],a two Judge Bench of this Court held thus:

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“…plenitude of the power under Section 482 Cr.P.C. by itself,makes it obligatory for the High Court to exercise the samewith utmost care and caution. The width and the nature of theCpower itself demands that its exercise is sparing and only incases where the High Court is, for reasons to be recorded, ofthe clear view that continuance of the prosecution would benothing but an abuse of the process of law. It is neithernecessary nor proper for us to enumerate the situations inDwhich the exercise of power under Section 482 may bejustified. All that we need to say is that the exercise of powermust be for securing the ends of justice and only in caseswhere refusal to exercise that power may result in the abuseof the process of law.”

E10. Having made such a short survey on authorities on the exerciseof power under Section 482 Cr.P.C. as above, we will now refer to theobject and purposes of the POCSO Act. Article 15 of the Constitution,inter alia confers powers upon the State to make special provisions forchildren and Article 39 (f) provides not only that the State shall direct itspolicy towards securing that the children are given opportunities to developFin a healthy manner and in conditions of freedom and dignity but also toensure that their childhood and youth are protected against exploitationand against moral and material abandonment. Recognising theconstitutional obligation and keeping in view the fundamental conceptunder Article 15 of the Constitution and also realizing that sexual offencesGagainst children are not adequately addressed by the existing laws,POCSO Act was enacted. The provisions thereunder would reveal thatit also aims to ensure that such offenders are not spared and should beproperly booked.

4 (2004) 1 SCC 6915 (2008) 8 SCC 781H6 AIR 2012 SC 499

4 (2004) 1 SCC 6915 (2008) 8 SCC 781H6 AIR 2012 SC 499

11. To achieve the avowed purpose, a legal obligation for reportingof offence under the POCSO Act is cast upon on a person to inform therelevant authorities specified thereunder when he/she has knowledgethat an offence under the Act had been committed. Such obligation isalso bestowed on person who has apprehension that an offence underthis Act is likely to be committed. Besides casting such a legal obligationunder Section 19, the Legislature thought it expedient to make failure todischarge the obligation thereunder as punishable, under Section 21thereof. True that under Section 21 (1), failure to report the commissionof an offence under Sub-Section 1 of Section 19 or Section 20 or failureto report such offence under Sub-Section 2 of Section 19 has been madepunishable with imprisonment of either description which may extend tosix months or with fine or with both. Sub-Section 2 of Section 21 providesthat any person who being in-charge of any company or an institution(by whatever name called) who fails to report the commission of anoffence under Sub-Section 1 of Section 19 in respect of a subordinateunder his control, shall be punishable with imprisonment with a termwhich may extend to one year or with fine. Certainly, such provisionsare included in with a view to ensure strict compliance of the provisionsunder the POCSO Act and thereby to ensure that the tender age ofchildren is not being abused and their childhood and youth is protectedagainst exploitation.

12. Looking at the penal provisions referred above, making failureto discharge the obligation under Section 19 (1) punishable only withimprisonment for a short duration viz., six months, one may think that itis not an offence to be taken seriously. However, according to us that byitself is not the test of seriousness or otherwise of an offence of failureto discharge the legal obligation under Section 19, punishable underSection 21 of POCSO Act. We are fortified in our view, by the decisionsof a three Judge Bench of this Court in Vijay Madanlal Choudhary &Ors. v. Union of India & Ors.[7] and a two Judge-Bench in ShankarKisanrao Khade v. State of Maharashtra[8].

13. In the decision in Shankar Kisanrao Khade’s case (supra),a two Judge Bench of this Court in paragraph 77.5 and 77.6 issuedcertain directions for due compliance and they read thus: - 7 2022 SCC OnLine SC 929

8 (2013) 5 SCC 546

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A“77.5. If hospitals, whether government or privately-ownedor medical institutions where children are being treated cometo know that children admitted are subjected to sexual abuse,the same will immediately be reported to the nearest JuvenileJustice Board/SJPU and the Juvenile Justice Board, inconsultation with SJPU, should take appropriate steps inBaccordance with the law safeguarding the interest of the child.

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77.6. The non-reporting of the crime by anybody, after havingcome to know that a minor child below the age of 18 yearswas subjected to any sexual assault, is a serious crime andby not reporting they are screening the offenders from legalCpunishment and hence be held liable under the ordinarycriminal law and prompt action be taken against them, inaccordance with law.”

14. In Vijay Madanlal Choudhary’s case(supra), this Courtobserved that the length of punishment is not only the indicator of theDgravity of offence and it is to be judged by a totality of factors, especiallykeeping in mind the background in which the offence came to berecognized by the Legislature in the specific international context. Inthis context, it is also relevant to note that the United Nations Conventionon Rights of Children, which was ratified by India on 11.12.1992, requiresEthe State parties to undertake all appropriate national, bilateral andmultilateral measures to prevent the inducement or coercion of child toengage in any unlawful sexual activity, the exploitative use of children inprostitution or other unlawful sexual practices etc. Articles 3 (2) and 34of the Convention have placed a specific duty on the State to protect thechild from all forms of sexual exploitation and abuse.F

15. Prompt and proper reporting of the commission of offenceunder the POCSO Act is of utmost importance and we have no hesitationto state that its failure on coming to know about the commission of anyoffence thereunder would defeat the very purpose and object of theAct. We say so taking into account the various provisions thereunder.GMedical examination of the victim as also the accused would give manyimportant clues in a case that falls under the POCSO Act. Section 27(1) of the POCSO Act provides that medical examination of a child inrespect of whom any offence has been committed under the said Act,shall, notwithstanding that a First Information Report or complaint hasHnot been registered for the offence under the Act, be conducted in accordance with Section 164 A of the Cr.P.C., which provides theprocedures for medical examination of the victim of rape. In thiscontextual situation, it is also relevant to refer to Section 53 A of Cr.P.C.that mandates for examination of a person accused of rape by a medicalpractitioner. It is also a fact that clothes of the parties would also offervery reliable evidence in cases of rape. We refer to the aforesaidprovisions only to stress upon the fact that a prompt reporting of thecommission of an offence under POCSO Act would enable immediateexamination of the victim concerned and at the same time, if it wascommitted by an unknown person, it would also enable the investigatingagency to commence investigation without wasting time and ultimatelyto secure the arrest and medical examination of the culprit. There canbe no two views that in relation to sexual offences medical evidence hasmuch corroborative value.

16. Bearing in mind the position with respect to the exercise ofpower under Section 482 Cr.P.C., the provisions, penal and procedural,under POCSO Act, we will proceed to consider the case on hand.

17. The FIR registered in the case on hand would reveal that itcame to be registered on coming to know about the suspected commissionof sexual offence against minor tribal girl(s) against unidentified person(s).Failure to report regarding the commission of the offence under thePOCSO Act despite knowledge about the same is the accusation againstthe respondent revealed from the charge-sheet. The FIR reveals theingredients of an offence under the POCSO Act and the real magnitudeof the same was revealed during the investigation, as stated above. Oncompletion of the investigation, based on the materials collected, theOfficer-in-Charge of the police station concerned formed an opinionthat a cognizable offence as mentioned therein, appears to had beencommitted and that the persons named therein, including the respondentherein, appears to have committed the offences specified against themand filed final report under Section 173(2) for prosecuting them. It is thestated FIR dated 12.04.2019 and the stated chargesheet dated 08.06.2019which were sought to be quashed and consequently quashed as per theimpugned judgment.

18. If FIR and the materials collected disclose a cognizable offenceand the final report filed under Section 173(2), Cr.P.C. on completion ofinvestigation based on it would reveal that the ingredients to constitutean offence under the POCSO Act and a prima facie case against the AB

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Apersons named therein as accused, the truthfulness, sufficiency oradmissibility of the evidence are not matters falling within the purviewof exercise of power under Section 482 Cr.P.C. and undoubtedly theyare matters to be done by the Trial Court at the time of trial. This positionis evident from the decisions referred supra.B19. In the decision in M.L. Bhatt v. M.K. Pandita[[9]], this court B19. In the decision in M.L. Bhatt v. M.K. Pandita[[9]], this courtheld that while considering the question of quashing of FIR the HighCourt would not be entitled to appreciate by way of sifting the materialscollected in course of investigation including the statements recordedunder Section 161, Cr.P.C. In the decision in Rajeev Kourav v. Baisahab& Ors.[10], a two Judge Bench of this Court dealt with question as to theCmatters that could be considered by the High Court in quashmentproceedings under Section 482 Cr.P.C. It was held therein that statementsof witnesses recorded under Section 161 Cr.P.C. being whollyinadmissible in evidence could not be taken into consideration by theCourt while adjudicating a petition filed under Section 482 Cr.P.C. InDthat case, this Court took note of the fact that the High Court was awarethat one of the witnesses mentioned that the deceased-victim had informedhim about the harassment by the accused, which she was not able tobear and hence wanted to commit suicide. Finding that the conclusion ofthe High Court to quash the criminal proceedings in that case was on thebasis of its assessment of the statements recorded under Section 161ECr.P.C., it was held that statements thereunder, being wholly inadmissiblein evidence could not have been taken into consideration by the Courtwhile adjudicating a petition filed under Section 482 Cr.P.C. It was alsoheld that the High Court committed an error in quashing the proceedingsby assessing the statements recorded under Section 161 Cr.P.C.F

20. There can be no dispute with respect to the position thatstatements recorded under Section 161 Cr.P.C. are inadmissible inevidence and its use is limited for the purposes as provided under Sections145 and 157 of the Indian Evidence Act, 1872. As a matter of fact,statement recorded under Section 164, Cr.P.C. can also be used only forGsuch purposes.

21. In the instant case, a scanning of the recitals in paragraphNo.10 of the impugned judgment would undoubtedly reveal the fact thatthe High Court had formed an opinion on perusal of the statement of a 9 JT 2002 (3) SC 89H10 (2020) 3 SCC 317

teacher of the victims and also the statements of the victims that sexualassault was detected only from the General Hospital, Chandrapur andthen arrived at the conclusion that the Respondent was not made awareof sexual assault committed on the victims and there is no evidence toimplicate him in the said crime. Paragraph No.10 of the impugnedjudgment reads thus: - “In the above backdrop, we have gone through the statementsof victims which have been referred by the prosecution. Thestatements show that the applicant had examined the victims.Their condition was deteriorating. Therefore, they were sentto General Hospital, Chandrapur. There is no material onrecord to show that the applicant was made aware about thesexual assault committed on the victims. On the contrary, fromthe statement of the teacher of victims it appears that the sexualassault was detected only in General Hospital, Chandrapur.Therefore, we are of the view that there is no evidence toimplicate the applicant in the said crime. Therefore, thecontinuation of proceedings against the applicant wouldamount to abuse of process of Court.”

(Emphasis added)

22. Thus, a bare perusal of the above extracted recitals fromparagraph No.10 of the impugned judgment would reveal that the HighCourt had gone through the statements of victims/witnesses cited by theprosecution, to arrive at the conclusion as to the existence or otherwiseof evidence against the respondent. In view of the provisions referredabove and also plethora of decisions including the decisions in M.L.Bhatt’s case (Supra) and in Rajeev Kourav’s case (supra), statementsrecorded under Section 161 Cr.P.C. are inadmissible in evidence and,therefore, could not have been made the basis for arriving at suchconclusions. As noted above, the FIR carries suspicion of commissionof sexual assault and the charge-sheet reveals prima facie against therespondent in relation to non-reporting of such an offence under thePOCSO Act. The very case of the Appellant is that some among theseventeen victims have given statements under Section 161, Cr.P.C.and some others under Section164 Cr.P.C., specifically stating that therespondent was informed of the sexual assault on them. When that bethe position, we have no doubt that the High Court should not haveembarked upon an enquiry, especially by looking into the statements of A

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Athe victims recorded as also their teacher to form an opinion regardingthe availability of evidence to connect the Respondent with the crime.True that the FIR and the charge sheet still remain in fact in respect ofthe other accused. But then, non-reporting of sexual assault against aminor child despite knowledge is a serious crime and more often thannot, it is an attempt to shield the offenders of the crime of sexual assault.BBe that as it may in view of the decision in Shankar Kisan Rao Khade’scase (supra) holding non-reporting of such a crime as serious and inview of the position obtained from a conjoint reading of Sections 19(1)and 21 of POCSO Act, such persons are also liable to be proceededwith, in accordance with law. In this context, it is also relevant to refer toCan observation made by this Court in the said case that this Court underparens patriae jurisdiction has a duty to give directions for complianceof the provisions under the POCSO Act.

23. The learned counsel for the respondent attempted to supportand get sustained the impugned judgment contending that it was renderedDrelying on the decision of this Court in A.S. Krishnan & Ors. v. State ofKerala[11]and that going by the said decision, the respondent could nothave been accused of having failed to report the commission of theoffence of sexual assault under the POCSO Act despite possessingknowledge about its commission. Upon going through the judgment, wehave no hesitation to hold that the said decision is totally inapplicable inEthe facts and circumstances of this case, for more than one reason.Firstly, a bare perusal of the said judgment would reveal that the questionof knowledge was considered by this Court not at the stage of lookinginto the correctness or otherwise of a finding on knowledge and theconsequential quashment of proceedings under Section 482, Cr.P.C. AsFa matter of fact, it was so considered in an appeal against conviction ofthe appellants therein under Sections 471, 420 read with Section 34,IPC. This Court was considering the expression ‘knows or has reasonto believe’ occurring under Section 471, IPC and while explaining themeanings of the words “knowledge” and “reason to believe” this Courtheld: -G‘9. Under IPC, guilt in respect of almost all the offences isfastened either on the ground of “intention” or “knowledge”or “reason to believe”. We are now concerned with the“”“”expressions knowledge and reason to believe.

“Knowledge” is an awareness on the part of the personconcerned indicating his state of mind.“Reason to believe”is another facet of the state of mind. “Reason to believe” isnot the same thing as “suspicion” or “doubt” and mere seeingalso cannot be equated to believing. “Reason to believe” is ahigher level of state of mind. Likewise “knowledge” will beslightly on a higher plane than “reason to believe”. A personcan be supposed to know where there is a direct appeal to hissensesand a person is presumed to have a reason to believeif he has sufficient cause to believe the same. Section 26 IPCexplains the meaning of the words “reason to believe” thus:

“26. ‘Reason to believe’. – A person is said to have ‘reasonto believe’ a thing, if he has sufficient cause to believe thatthing but not otherwise.”

(Emphasis added)

In the contextual situation, it is also worthy to refer the followingrecital from para 8 of the said decision:

“Whether the accused knew or had reason to believe thedocument in question to be forged has to be adjudicated onthe basis of materials and the finding recorded in that regardis essentially factual”.

In the case on hand, the High Court arrived at the finding of absenceof evidence to implicate the respondent in the crime in question upongoing through the statements of the victims and also the statement of theteacher of the victims, which recourse is absolutely impermissible.

24. There is yet another reason to decline the aforesaid contentionof the respondent. We would not have even perused Annexures- A1 toA8, which are statements of some of the victims recorded under Section161/164, Cr.P.C., recorded much prior to the impugned judgment dated20.4.2021 viz., in the year 2019 itself. We do so solely to verify the verityof the finding of the High Court to the effect that such statements do notdisclose anything suggesting knowledge of the respondent about thecommission of the crime. In troth, those statements did mention aboutdivulgation of sexual assault on them by victims to the respondent. Wemay hasten to add, at the risk of repetition, that such statements recordedunder Section 161/164, Cr.P.C. are inadmissible in evidence, as held inM.L. Bhatt’s case (supra) and in Rajeev Kourav’s case (supra). In AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

Athe light of the circumstances available as above and in the light of Section59 of the Evidence Act, the High Court was not justified in bringingabrupt termination of the proceedings qua the respondent. The positionrevealed from the discussion above constrains us to hold that there isprima facie case against the respondent for the offence referred aboveand hence, the appeal is liable to succeed.B

25. In the light of the decisions and the provisions referred above,the impugned judgment resulting in quashment of the stated FIR and thecharge-sheet throttling the prosecution at the threshold, without allowingthe materials in support of it to see the light of the day, cannot be said tobe as an exercise done to secure interests of justice whereas it can onlyCbe stated that such exercise resulted in miscarriage of justice.

26. In the result, the impugned judgment of the High Court is setaside and the Appeal is, accordingly allowed. Pending applications, ifany, are disposed of.

D

Devika Gujral

(Assisted by : Shubhanshu Das, LCRA)

Appeal allowed.

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F

G

H