DR. SR. TESSY JOSE AND OTHERS versus STATE OF KERALA on 1 August 2018

[2018] 9 S.C.R. 479

DR. SR. TESSY JOSE AND OTHERS

v.

STATE OF KERALA

(Criminal Appeal No. 961 of 2018)

AUGUST 01, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Protection of Children from Sexual Offences Act, 2012 –s.19(1) r/w. s.21(1) – Prosecution case was that victim was rapedwhen she was minor – As a result, she became pregnant andthereafter delivered a child in hospital – A case was registeredagainst the appellants u/s. 201 r/w. s.34 and s.19(1) r/w. s.21(1) ofPOCSO Act – Appellant nos. 1 & 2 were medical practitioners andappellant no.3 was a Hospital administrative – Allegation was thatwhen victim was brought to the hospital her age was recorded as 18years and appellants ought to have gathered that at the time ofconception she was less than 18 years, and informed relevantauthorities, which they failed to do – Held: u/s.19(1) of the Actthere is no obligation on the person to investigate and gatherknowledge – The medical records showed that appellant no.1attended victim first time when the child was delivered and recordsstated she was 18 years of age at that time – Appellant no.1 did notknow that the victim was minor when she had sexual intercourse –Appellant no.2 had not even examined the victim and had justadvised that child be given to the mother – Appellant no.3, beingthe administrator of the hospital it was not possible for her to beaware of the details of each patient – The knowledge requirementfoisted on the appellants cannot be that they ought to havededucted from circumstances that an offence has been committed –No evidence to implicate the appellants – Thus, proceedings againstappellants quashed – Penal Code 1860 – s.201 r/w. s.34.

Words and Phrases – Knowledge – Meaning of.

Allowing the appeals, the Court

HELD: 1. What is alleged against the appellants is that theyhad the knowledge that an offence under the Protection ofChildren from Sexual Offences Act, 2012 had been committed

479

A

B

CDE

F

G

H

Aand, therefore, they were required to provide this information tothe relevant authorities which they failed to do. As per the materialcollected by the prosecution and filed in the Court, no such caseis made out. The statement of the mother of the victim wasrecorded by the police. The statement of the victim was alsorecorded. They have not stated at all that when the victim wasBbrought to the hospital, her mother informed the appellants thatshe had been raped by the accused no. 1 when she was a minor.Admittedly, the victim was pregnant and immediately went intolabour. In these circumstances, it was the professional duty ofAppellant No. 1 to attend to her and conduct the delivery, whichCshe did. Likewise, after the baby was born, the Appellant No.2as a Paediatrician performed her professional duty. Appellant no.3 had not come in contact with the victim or the baby at all. Beingthe administrator of the hospital it was not possible for her to beaware of the details of each patient. It would not be possible forappellant no. 3 to be aware of the circumstances surrounding theDadmission of the victim. [Paras 7, 8 and 12] [483-G-H; 484-A-B;485-B-C]

3. The entire case set up against the appellants is on thebasis that when the victim was brought to the hospital her agewas recorded as 18 years. On that basis appellants could haveEgathered that at the time of conception she was less than 18 yearsand was, thus, a minor and, therefore, the appellants should havetaken due care in finding as to how the victim became pregnant.Fastening the criminal liability on the basis of the aforesaidallegation is too far-fetched. The provisions of Section 19(1) ofFthe POCSO Act, put a legal obligation on a person to inform therelevant authorities, inter alia, when he/she has knowledge thatan offence under the Act had been committed. The expressionused is “knowledge” which means that some information receivedby such a person gives him/her knowledge about the commission

of the crime. There is no obligation on this person to investigateGand gather knowledge. If at all, the appellants were not carefulenough to find the cause of pregnancy as the victim was only 18years of age at the time of delivery. But that would not betranslated into criminality. The knowledge requirement foistedon the appellants cannot be that they ought to have deduced fromHcircumstances that an offence has been committed. Accordingly, there is no evidence to implicate the appellants. [Paras 9, 13 and14] [484-D-E; 485-B-C]

A S Krishnan and Others v. State of Kerala (2004) 11SCC 576 : [2004] 3 SCR 44 – referred to.

Case Law Reference

[2004] 3 SCR 44 referred to

Para 10

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 961 of 2018.

From the Judgment and Order dated 20.12.2017 of the High Courtof Kerala at Ernakulam in Crl. MC No.5129 of 2017.

Basant R., K.N. Balagopal, Sr. Adv., Dr. Harshvir Pratap Sharma,Pankaj Kumar, Raghenth Basan, Mithun Verghish, Ms. Namita Wahi,Ms. Liz Mathew, Vipin Nair, P.B. Suresh, Abhay Pratap Singh,A.P. Mukundan, Anshumaan Bahadur, Karthik Jayshankar, Vipin Nair,Advs. for the appearing parties.

The Judgment of the Court was delivered by

A. K. SIKRI, J. 1. After hearing this matter on 1[st] August, 2018,following order was passed:

“Leave granted.

We have heard the arguments.

We are informed that the trial is in progress today before the trialcourt. Since, there is not enough time to dictate the judgment, weare allowing this appeal so that the decision is conveyed to thetrial court. Reasons to follow.

A copy of this order may be provided to the counsel for theparties.”

2. We are now stating our reasons which led us to allow the appealof the appellants.

3. First Information Report under the provisions of Protection ofChildren from Sexual Offences Act, 2012 (For short, POCSO Act) hasbeen registered in which charge sheet has been filed and the caseregistered as Sessions Case No. 460 of 2017 is pending before the SpecialJudge, Ernakulam. The appellants herein are arrayed as accused nos.

A

B

C

D

E

F

G

H

A3, 4 and 5. Insofar as the appellants are concerned, allegations againstthem are under Sections 201 read with Section 34 of the Indian PenalCode (for short, ‘IPC’), Section 19(1) read with Section 21(1) of POCSOAct and Section 75 of the Juvenile Justice Act.

4. The case of the prosecution, in brief, is that accused no. 1 hadBraped the victim when she was a minor in the year 2016. As a result,she became pregnant. As per victim’s mother, when the victim startedcomplaining about pain in her stomach, thinking it to be some problemrelated to stomach, she brought her to the hospital where the appellantswere working, on 7[th] February, 2017. It was found that the victim wasin advance stage of pregnancy. In fact, soon after she was brought toCthe hospital, she went into labour. She delivered the child. Insofar asthe appellants are concerned, their role is that they attended to the victim.Appellant no. 1 is a 66 years’ old lady who is a Gynecologist and hadconducted the delivery. Appellant no. 2 is a Paediatrician who had attendedto the baby of the victim after the delivery. Appellant no. 3, is a 69Dyears’ old Hospital Administrative. She is roped-in in that capacity thoughshe did not attend to the victim or the baby.

5. It is not the case of the prosecution that these appellants hadany knowledge about the alleged rape of the victim allegedly committedby accused No. 1 at any time earlier. In fact, they did not come intoEpicture before 7[th] February, 2017 when the victim was brought to thehospital. However, the charge against these appellants is primarily onaccount of purported commission of an act under Sections 19(1) ofPOCSO Act. This Section reads as under:

“Section 19 (I) Notwithstanding anything contained in the CodeFof Criminal Procedure, 1973, any person (including the child), whohas apprehension that an offence under this Act is likely to becommitted or has knowledge that such an offence has beencommitted, he shall provide such information to—

(a) the Special Juvenile Police Unit; or (b) the local police.G(2) Every report given under sub-section(I) shall be—

(a) ascribed an entry number and recorded in writing; (b) be read over to the informant;

(c) shall be entered in a book to be kept by the H Police Unit.

(3) Where the report under sub-section (I) is given by a child, thesame shall be recorded under Section (2) in a simple language sothat the child understands contents being recorded.

(4) In case contents are being recorded in the language notunderstood by the child or wherever it is deemed necessary, atranslator or an interpreter, having such qualifications, experienceand on payment of such fees as may be prescribed, shall beprovided to the child if he fails to understand the same.

(5) Where the Special Juvenile Police Unit or local police issatisfied that the child against whom an offence has beencommitted is in need of care and protection. then, it shall, afterrecording the reasons in writing make immediate arrangement togive him such care and protection (including admitting the childinto shelter home or to the nearest hospital) within twenty-fourhours of the report, as may be prescribed.

(6) The Special Juvenile Police Unit or local police shall, withoutunnecessary delay but within a period of twenty-four hours,report the matter to the Child Welfare Committee and the SpecialCourt or where no Special Court has been designated, to the Courtof Session, including need of the child for care and protection andsteps taken in this regard.

(7) No person shall incur any liability, whether civil or criminal, forgiving the information in good faith for the purpose of sub-section(1).”

6. As is clear from the aforesaid provision, a person who had anapprehension that an offence under the said Act is likely to be committedor has knowledge that such an offence had been committed would berequired to provide such information to the relevant authorities.

7. Thus, what is alleged against the appellants is that they had theknowledge that an offence under the Act had been committed and,therefore, they were required to provide this information to the relevantauthorities which they failed to do.

8. After going through the record and hearing the counsel for theparties, we are of the opinion that no such case is made out even as perthe material collected by the prosecution and filed in the Court. Thestatement of the mother of the victim was recorded by the police. The A

B

C

D

E

F

G

H

Astatement of the victim was also recorded. They have not stated at allthat when the victim was brought to the hospital, her mother informedthe appellants that she had been raped by the accused no. 1 when shewas a minor. Admittedly, the victim was pregnant and immediately wentinto labour. In these circumstances, it was even the professional duty ofAppellant No. 1 to attend to her and conduct the delivery, which she did.BLikewise, after the baby was born, the Appellant No. 2 as a Paediatricianperformed her professional duty.

9. The entire case set up against the appellants is on the basis thatwhen the victim was brought to the hospital her age was recorded as 18years. On that basis appellants could have gathered that at the time ofCconception she was less than 18 years and was, thus, a minor and,therefore, the appellants should have taken due care in finding as to howthe victim became pregnant. Fastening the criminal liability on the basisof the aforesaid allegation is too far fetched. The provisions of Section19(1), reproduced above, put a legal obligation on a person to inform theDrelevant authorities, inter alia, when he/she has knowledge that an offenceunder the Act had been committed. The expression used is “knowledge”which means that some information received by such a person giveshim/her knowledge about the commission of the crime. There is noobligation on this person to investigate and gather knowledge. If at all,the appellants were not careful enough to find the cause of pregnancyEas the victim was only 18 years of age at the time of delivery. But thatwould not be translated into criminality.

10. The term “knowledge”has been interpreted by this Court inAS Krishnan and Others v. State of Kerala[1]to mean an awareness onthe part of the person concerned indicating his state of mind. Further, a Fperson can be supposed to know only where there is a direct appeal tohis senses. We have gone through the medical records of the victimwhich were referred by Mr. Basant R., Senior Advocate for theappellants. The medical records, which are relied upon by the prosecution,only show that the victim was admitted in the hospital at 9.15 am and she immediately went into labour and at 9.25 am she gave birth to aGbaby. Therefore, appellant no. 1 attended to the victim for the first timebetween 9.15 am and 9.25 am on 7[th] February, 2017. The medicalrecords of the victim state that she was 18 years’ old as on 7[th] February,2017. Appellant no. 1 did not know that the victim was a minor whenshe had sexual intercourse.

H1(2004) 11 SCC 576

11. Appellant no. 2 had not even examined the victim and was notin contact with the victim. As per the medical records relied upon by theprosecution, the baby was attended to by appellant no. 2 at 5.30 pm on7[th] February, 2017. He advised that the baby be given to the mother.Therefore, appellant no. 2 had no occasion to examine/treat the victim.

12. Appellant no. 3 had not come in contact with the victim or thebaby at all. Being the administrator of the hospital it was not possible forher to be aware of the details of each patient. Considering that thevictim was brought to the said hospital for the first time on 7[th] February,2017, it would not be possible for appellant no. 3 to be aware of thecircumstances surrounding the admission of the victim.

13. The knowledge requirement foisted on the appellants cannotbe that they ought to have deduced from circumstances that an offencehas been committed.

14. Accordingly, we are of the view that there is no evidence toimplicate the appellants. Evidence should be such which should at leastindicate grave suspicion. Mere likelihood of suspicion cannot be the reasonto charge a person for an offence. Accordingly, these appeals are allowedand the proceedings against the appellants in the aforesaid Sessions CaseNo. 460 of 2017 are hereby quashed.

Divya Pandey

Appeals allowed.

A

B

C

D

E

F

G

H