Tuesday, 9 June 2015

Whether child welfare committee has right to direct police to register offence in case of sexual offence against child under POCSO Act?

The present instance is a classic example and a fine illustration to note down the gross illegalities being committed by the CWCs without knowing as to what they are and what are their powers are, and as to how recklessly they are exercising powers, which are not even conferred on them. It seems that in this particular case, the CWC, Wayanad has crossed over all the limits and has committed  gross illegality in passing such an order. The CWC has no power to register a case. Without any powers, it seems that, they have directed the SHO, Mananthavady to register the case against 6 persons, including the petitioners herein. The SHO, Manathavady has chosen to arraign 9 persons as accused in the crime, including the present petitioners as A9, A8 and A7 respectively. The offences alleged against the petitioners are under Sections 9(f), 9(l), 19(1) and 21(2) of the POCSO Act.
 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

                         THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

        THURSDAY, THE 18TH DAY OF DECEMBER 2014/

        DR LETHA J., A

       Vs

         STATE OF KERALA
                                                     
Citation 2015CRLJ(NOC)248 kerala

      A9, A8 and A7 in Crime No.645 of 2014 of the

Mananthavady Police Station, registered for the offences

under Sections 9(f), 9(l), 19(1) and 21(2) of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter

referred to as `the POCSO Act'), have come up under

Section 482 Cr.P.C., to quash Annexure A7 First Information

Report in the said crime and all further proceedings based

on it as against them, quashed.

      2. The petitioners are Director of Technical Education,

Senior Joint Director, Directorate of Technical Education and

Joint Director, Regional Directorate of Technical Education,

respectively.

      3. On the basis of some alleged 'media reports in a


section of the Press on 12.06.2014', the Child Welfare

Committee, Wayanad (hereinafter referred to as `the CWC,

Wayanad') has seen suo motu registered a case on the

alleged sexual assault on girl students in Government

Technical High School at Dwaraka, Mananthavady. It is

alleged that the 1st accused Anil Kumar K.V., who was a

Draftsman Gr.II of the said School, had sexually assaulted

and harassed the girl students of the said School repeatedly

for a long period. On 12.06.2014, the CWC, Wayanad has

directed the head of the institution to submit a detailed

report along with it. It seems that, they have directed the

Joint Director, Regional Directorate of Technical Education

also to submit a detailed report.             The reports were

submitted.

      4.   On 07.07.2014, the CWC has passed an order

directing    the    Station   House    Officer,    Mananthavady

(hereinafter referred to as `the SHO, Mananthavady')

      "to inquire into the matter and initiate appropriate legal

    steps against (1) Mr. Anil Kumar K.V., (2) The Superintend

    of Govt. Technical High School Mananthavady at Dwaraka,


    (3) The Four members of the Ethics Committee, (4) The

    Joint Director, Regional Directorate, Technical Education,

    Kozhikode, (5) Senior Joint Director (PS), Directorate of

    Technical Education Thiruvananthapuram and (6) Director of

    Technical Education Thiruvananthapuram, within two weeks

    of the receipt of this Order and report compliance."

      5. It seems that the SHO, Mananthavady has swiftly

acted by registering the crime against 9 persons as

accused. It is quite unfortunate that the SHO, Mananthavady

has arraigned the Director, Senior Joint Director and Joint

Director as A9, A8 and A7 respectively in the crime alleging

the aforesaid offences.

      6.    Heard learned counsel for the petitioners and

learned Additional Director General of Prosecution.

      7. The present instance is a classic example and a

fine illustration to note down the gross illegalities being

committed by the CWCs without knowing as to what they

are and what are their powers are, and as to how recklessly

they are exercising powers, which are not even conferred on

them. It seems that in this particular case, the CWC,

Wayanad has crossed over all the limits and has committed


gross illegality in passing such an order. The CWC has no

power to register a case. Without any powers, it seems

that, they have directed the SHO, Mananthavady to register

the case against 6 persons, including the petitioners herein.

The SHO, Manathavady has chosen to arraign 9 persons as

accused in the crime, including the present petitioners as

A9, A8 and A7 respectively. The offences alleged against

the petitioners are under Sections 9(f), 9(l), 19(1) and 21(2)

of the POCSO Act.

      8. As per Section 9(f) of the POCSO Act :

            "whoever being on the management or staff of an

      educational institution or religious institution, commits sexual

      assault on a child in that institution, is said to commit

      aggravated sexual assault."

There is no allegation against these petitioners that they

have ever committed sexual assault on a child in that

institution.

      9. As per Section 9(l) of the POCSO Act :

           "whoever commits penetrative sexual assault on the

     child more than once or repeatedly; is said to commit


      aggravated sexual assault."

There is no allegation against any of these petitioners that

they have committed any such acts as contemplated under

Section 9(l) of the POCSO Act.

      10.     Matters being so, it seems that unnecessarily

these petitioners have been dragged in the matter at the

direction of the CWC and heinous offences like 9(f) and 9(l)

of the POCSO Act are levelled against them.

      11. The CWC has found fault with these petitioners

and has noted in order dated 07.07.2014, the following:

               "CWC is in receipt of the reports called for. On

        perusing the various reports and the certified copies of the

        victims' complaints, we are of the considered view that

        there is prima facie evidence of offences attracting Sns.9

        (f) (l) & 19(1), 21(2) of the Protection of Children from

        Sexual Offences (POCSO) Act-2012."

It seems that the CWC have decided that there is prima

facie evidence for attracting offences under Sections 9(f), 9

(l), 19(1) and 21(2) of the POCSO Act. Simply based on the

said illegal finding entered by the CWC, the SHO,

Mananthavady has incorporated those offences against


these petitioners.

      12. As per Section 19(1) of the POCSO Act:

            "any person, 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 the Special Juvenile Police Unit or to

      the local police."

      13. The penal provision is contained in Section 21 of

the POCSO Act. As per Section 21(2) of the POCSO Act:

                "Any person, being in-charge of any company or

         an institution, 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 punishable

         with imprisonment for a term which may extend to one

         year and with fine."

Is it a case wherein, the Director, Senior Joint Director and

Joint Director can be brought within the purview of Section

21(2) of the POCSO Act ? They are not in charge of the

present institution. Further, the 1st accused cannot be styled

as a person, who is the immediate subordinate of any of

these petitioners. It seems that the CWC has acted in a

reckless manner and the same has been followed by the


SHO, Mananthavady by unnecessarily registering the case

against these petitioners. Much discussion is not required

to conclude that the FIR as against these petitioners is liable

to be quashed.

      In the result, this Crl.M.C. is allowed and Annexure A7

First Information Report in Crime No.645 of 2014 of the

Mananthavady Police Station as against the petitioners is

concerned, stands quashed.



                                                 Sd/-
                                       B. KEMAL PASHA
                                               JUDGE

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