Can the court charge the accused for an offence under POCSO Act if she fails to report to the police about a crime against a child?

 It is submitted by the counsel for the applicant that the

applicant is working as a Counsellor and during her routine

inspection of Ashram Shanti Niketan Balika Grih, Birla Nagar,

Hazira, Gwalior, the prosecutrix, who is mentally retarded minor

and is staying in the Ashram informed that Jain Baba posted in the said Ashram was continuously violating her sexually.

3. During the course of investigation, it was found that the

applicant was aware of the physical violation of the minor

prosecutrix, who was mentally retarded, and in spite of that, she

did not take any action against Jain Baba. When the applicant saw misdeeds of Jain Baba, then instead of taking any action against the co-accused Jain Baba, she simply requested him not to do the said act.

9. The allegations are that the applicant was a Counsellor and it

was her duty to ensure the security of the girls as well as to counsel them. The allegations are that in spite of getting the knowledge about the misdeeds of co-accused Jain Baba, she did not take any action whereas as per Section 19(1) of the POCSO Act, according to which, her duty was to inform the Special Juvenile Police Unit or the local police. Non-communication of information as required under Section 19(1) of the POCSO Act is a punishable offence, which may extend to six months. Further, Section 16 of the POCSO Act defines abetment which provides that either prior to or at the time of commission of act, if somebody does anything to facilitate the commission of that act and thereby facilitates the commission thereof, then it can be said to aid the doing of that act.

10. When the applicant had already seen the co-accused with the

prosecutrix and the prosecutrix has specifically alleged that she

was being ravished by the co-accused and instead of informing the local police, it is alleged that the applicant had simply requested the co-accused not to indulge himself in such an act, then it would certainly come within the definition of abetment as the act of the applicant amounts to aiding the co-accused for doing the act of rape on the prosecutrix. Further, it is well established principle of law that a roving and detailed enquiry or meticulous appreciation of evidence is not required at the stage of framing of charge. Even the grave suspicion is sufficient to frame charge for trial.

 THE HIGH COURT OF MADHYA PRADESH

CRR No. 2020/2021

Smt. Mamta Tiwari Vs. State of MP and anr.

Gwalior, Dated: 02.09.2021

This criminal revision under Sections 397/401 of Cr.P.C. has

been filed against the order dated 10.08.2018 passed by the Special

Judge (POCSO Act), Gwalior in Special Case No.86/2019, by

which the charges under Sections 16 and 17 of Protection of

Children from Sexual Offences Act, 2012 (in short “POCSO Act”)

have been framed.

2. It is submitted by the counsel for the applicant that the

applicant is working as a Counsellor and during her routine

inspection of Ashram Shanti Niketan Balika Grih, Birla Nagar,

Hazira, Gwalior, the prosecutrix, who is mentally retarded minor

and is staying in the Ashram informed that Jain Baba posted in the

said Ashram was continuously violating her sexually.

3. During the course of investigation, it was found that the

applicant was aware of the physical violation of the minor

prosecutrix, who was mentally retarded, and in spite of that, she

did not take any action against Jain Baba. When the applicant saw

misdeeds of Jain Baba, then instead of taking any action against

the co-accused Jain Baba, she simply requested him not to do the

said act.

4. The Trial Court by order dated 10.08.2021 has framed

charges under Sections 16 and 17 of POCSO Act.

5. It is submitted that the allegations are false. The witnesses

had not spoken against the applicant at the first instance, but only

in the supplementary statement, it was alleged that the applicant

had seen the misdeeds of co-accused Jain Baba and instead of

taking any action against him, he had simply requested Jain Baba

not to indulge in the said act. Thus, it is submitted that such

allegation is afterthought and cannot be relied upon.

6. Per contra, counsel for the State has supported the impugned

order dated 10.08.2018.

7. Heard the learned counsel for the parties.

8. Sections 16 and 17 of POCSO Act read as under:-

“16. Abetment of an offence.- A person

abets an offence, who-

First.-Instigates any person to do that

offence; or

Secondly.- Engages with one or more other

person or persons in any conspiracy for the doing of

that offence, if an act or illegal omission takes place

in pursuance of that conspiracy, and in order to the

doing of that offence; or

Thirdly.-Intentionally aids, by any act or

illegal omission, the doing of that offence.

Explanation I.-A person who, by wilful

misrepresentation, or by wilful concealment of a

material fact, which he is bound to disclose,

voluntarily causes or procures, or attempts to cause

or procure a thing to be done, is said to instigate the

doing of that offence.

Explanation II.-Whoever, either prior to or at

the time of commission of an act, does anything in

order to facilitate the commission of that act, and

thereby facilitates the commission thereof, is said to

aid the doing of that act.

Explanation III.- Whoever employ, harbours,

receives or transports a child, by means of threat or

use of force or other forms of coercion, abduction,

fraud, deception, abuse of power or of a position,

vulnerability or the giving or receiving of payments

or benefits to achieve the consent of a person having

control over another person, for the purpose of any

offence under this Act, is said to aid the doing of

that act.

17. Punishment for abetment. – Whoever

abets any offence under this Act, if the act abetted is

committed in consequence of the abetment, shall be

punished with punishment provided for that offence.

Explanation.- An act or offence is said to be

committed in consequence of abetment, when it is

committed in consequence of the instigation, or in

pursuance of the conspiracy or with the aid, which

constitutes the abetment.

9. The allegations are that the applicant was a Counsellor and it

was her duty to ensure the security of the girls as well as to counsel

them. The allegations are that in spite of getting the knowledge

about the misdeeds of co-accused Jain Baba, she did not take any

action whereas as per Section 19(1) of the POCSO Act, according

to which, her duty was to inform the Special Juvenile Police Unit

or the local police. Non-communication of information as required

under Section 19(1) of the POCSO Act is a punishable offence,

which may extend to six months. Further, Section 16 of the

POCSO Act defines abetment which provides that either prior to or

at the time of commission of act, if somebody does anything to

facilitate the commission of that act and thereby facilitates the

commission thereof, then it can be said to aid the doing of that act.

10. When the applicant had already seen the co-accused with the

prosecutrix and the prosecutrix has specifically alleged that she

was being ravished by the co-accused and instead of informing the

local police, it is alleged that the applicant had simply requested

the co-accused not to indulge himself in such an act, then it would

certainly come within the definition of abetment as the act of the

applicant amounts to aiding the co-accused for doing the act of

rape on the prosecutrix. Further, it is well established principle of

law that a roving and detailed enquiry or meticulous appreciation

of evidence is not required at the stage of framing of charge. Even

the grave suspicion is sufficient to frame charge for trial.

11. The Supreme Court in the case of Taramani Parakh Vs.

State of M.P. reported in (2015) 11 SCC 260 has held as under:-

“10. The law relating to quashing is well settled.

If the allegations are absurd or do not make out

any case or if it can be held that there is abuse

of process of law, the proceedings can be

quashed but if there is a triable case the court

does not go into reliability or otherwise of the

version or the counter-version. In matrimonial

cases, the courts have to be cautious when

omnibus allegations are made particularly

against relatives who are not generally

concerned with the affairs of the couple. We

may refer to the decisions of this Court dealing

with the issue.

11 and 12. XXXXXX

13. In the present case, the complaint is as

follows:

“Sir, it is submitted that I was married on 18-11-

2009 with Sidharath Parakh s/o Manak Chand

Parakh r/o Sarafa Bazar in front of Radha

Krishna Market, Gwalior according to the

Hindu rites and customs. In the marriage my

father had given gold and silver ornaments, cash

amount and household goods according to his

capacity. After the marriage when I went to my

matrimonial home, I was treated nicely by the

members of the family. When on the second

occasion I went to my matrimonial home, my

husband, father-in-law and mother-in-law

started harassing me for not bringing the dowry

and started saying that I should bring from my

father 25-30 tolas of gold and Rs 2,00,000 in

cash and only then they would keep me in the

house otherwise not. On account of this my

husband also used to beat me and my father-inlaw

and my mother-in-law used to torture me by

giving the taunts. In this connection I used to

tell my father Kundanmal Oswal, my mother

Smt Prem Lata Oswal, uncle Ashok Rai Sharma

and uncle Ved Prakash Mishra from time to

time. On 2-4-2010 the members of the family of

my matrimonial home forcibly sent me to the

house of my parents in Ganj Basoda along with

my brother Deepak. They snatched my clothes

and ornaments and kept with them. Since then

till today my husband has been harassing me on

the telephone and has not come to take me back.

Being compelled, I have been moving this

application before you. Sir, it is prayed that

action be taken against husband Sidharath

Parakh, my father-in-law Manak Chand Parakh

and my mother-in-law Smt Indira Parakh for

torturing me on account of demanding dowry.”

14. From a reading of the complaint, it cannot

be held that even if the allegations are taken as

proved no case is made out. There are

allegations against Respondent 2 and his

parents for harassing the complainant which

forced her to leave the matrimonial home. Even

now she continues to be separated from the

matrimonial home as she apprehends lack of

security and safety and proper environment in

the matrimonial home. The question whether

the appellant has in fact been harassed and

treated with cruelty is a matter of trial but at this

stage, it cannot be said that no case is made out.

Thus, quashing of proceedings before the trial is

not permissible.”

Further the Supreme Court in the case of Dilawar Balu

Kurane v. State of Maharashtra, reported in (2002) 2 SCC 135

has held as under :

“12. Now the next question is whether a prima

facie case has been made out against the

appellant. In exercising powers under Section

227 of the Code of Criminal Procedure, the

settled position of law is that the Judge while

considering the question of framing the charges

under the said section has the undoubted power

to sift and weigh the evidence for the limited

purpose of finding out whether or not a prima

facie case against the accused has been made

out; where the materials placed before the court

disclose grave suspicion against the accused

which has not been properly explained the court

will be fully justified in framing a charge and

proceeding with the trial; by and large if two

views are equally possible and the Judge is

satisfied that the evidence produced before him

while giving rise to some suspicion but not

grave suspicion against the accused, he will be

fully justified to discharge the accused, and in

exercising jurisdiction under Section 227 of the

Code of Criminal Procedure, the Judge cannot

act merely as a post office or a mouthpiece of

the prosecution, but has to consider the broad

probabilities of the case, the total effect of the

evidence and the documents produced before

the court but should not make a roving enquiry

into the pros and cons of the matter and weigh

the evidence as if he was conducting a trial (see

Union of India v. Prafulla Kumar Samal).”

Further the Supreme Court in the case of Mauvin Godinho

v. State of Goa, reported in (2018) 3 SCC 358 has held as under :

“12. At the outset it would be pertinent to note

the law concerning the framing of charges and

the standard which courts must apply while

framing charges. It is well settled that a court

while framing charges under Section 227 of the

Code of Criminal Procedure should apply the

prima facie standard. Although the application

of this standard depends on facts and

circumstance in each case, a prima facie case

against the accused is said to be made out when

the probative value of the evidence on all the

essential elements in the charge taken as a

whole is such that it is sufficient to induce the

court to believe in the existence of the facts

pertaining to such essential elements or to

consider its existence so probable that a prudent

man ought to act upon the supposition that those

facts existed or did happen. However, at this

stage, there cannot be a roving enquiry into the

pros and cons of the matter and weigh the

evidence as if he was conducting a trial. [Refer

Sajjan Kumar v. CBI [Sajjan Kumar v. CBI,

(2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371],

State v. A. Arun Kumar [State v. A. Arun Kumar,

(2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 :

(2015) 1 SCC (L&S) 505] and State v. S. Selvi

[State v. S. Selvi, (2018) 4 SCC 641 : (2018) 1

Scale 5].]”

12. Considering the totality of the facts and circumstances of the

case, this Court is of the considered opinion that at present, it

cannot be said that there is no sufficient material to frame the

charge against the applicant.

13. Accordingly, the revision fails and is hereby dismissed.

(G.S. Ahluwalia)

Judge

Arun*

ARUN KUMAR MISHRA

2021.09.04 

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