Bombay High Court
Balasaheb Alias Suryakant ... vs The State Of Maharasthra on 22 March, 2017
Bench: A.M. Badar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.69 OF 2017
BALASAHEB @ SURYAKANT YASHWANTRAO)
MANE )...APPLICANT
V/s.
THE STATE OF MAHARASHTRA )...RESPONDENT
Mr.Rahul S. Kate, Advocate for the Applicant.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 22nd MARCH 2017
ORAL ORDER :
1 By this revision petition, revision petitioner / original
accused no.2 is challenging the charge framed by the learned
Additional Sessions Judge, Waduj, on 7 th January 2017, for
offences punishable under Sections 19 read with Section 21 of the
Protection of Children from Sexual Offences Act, 2012, (POCSO
Act), Section 202 of the IPC and under Section 3(2)(vi) of the
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Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1988.
2 Heard Shri Rahul Kate, the learned advocate
appearing for the revision petitioner / original accused no.2. By
placing reliance on judgment in the matter of Kamal Prasad
Patade vs. State of Chhattisgarh and Others 1, Shri Rahul Kate,
the learned advocate appearing for the revision petitioner /
original accused no.2 vehemently argued that initially the
prosecution is obliged to prove the commission of the offence
punishable under Section 5 of the POCSO Act against original
accused no.1 Shahaji Anandrao Patole and then only the
prosecution can file the charge-sheet against the present revision
petitioner / original accused no.2 for the alleged offences under
Section 19 read with Section 21 of the POCSO Act. Unless and
until the principal offence is proved against the main accused, the
co-accused cannot be charge-sheeted for the offence punishable
under Section 19 read with Section 21 of the POCSO Act. The
learned advocate further argued that in the case in hand, as yet,
1 2016 CRI.L.J.3759
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principal offence is not proved to have been committed by the
accused no.1 Shahaji Patole and therefore, composite charge-sheet
could not have been filed against the revision petitioner / original
accused no.2 by arraigning him as an accused with principal
accused Shahaji Patole. The learned advocate further argued that
immediate superior officials in-charge of the ashram school are
not made as an accused by the police and unnecessarily the
revision petitioner /original accused no.2, who is Director of the
Trust, is joined as an accused for the offence punishable under
Section 19 read with Section 21 of the POCSO Act.
3 The learned APP opposed the revision petition by
contending that objects of the POCSO Act are required to be kept
in mind and there cannot be charge-sheet against accused persons
in piecemeal - one of the substantive / principal offence and after
result thereof, the another for the offence punishable under
Section 19 read with Section 21 of the POCSO Act. The learned
APP further argued that mandate of Section 33(5) of the POCSO
Act is to the effect that the victim child should not be called
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repeatedly before the court for testifying against accused persons
and if contention of the learned advocate for the revision
petitioner is accepted, then that will amount to violation of
provisions of Section 33(5) of the POCSO Act.
4 I have carefully considered the rival submissions and
also perused the entire charge-sheet with the assistance of the
learned advocate appearing for the revision petitioner / original
accused no.2. The charge questioned in the instant revision
petition is one punishable under Section 19 read with Section 21
of the POCSO Act. It is, therefore, necessary to quote relevant
provisions of both these sections and they read thus :
"19. Reporting of offences :
(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973, any person (including
the child), 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.-
(a) the Special Juvenile Police Unit; or
(b) the local police.
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(2) Every report given under sub-section (1) 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
Police Unit.
"21. Punishment for failure to report or record a
case : -
(1) Any person, who fails to report the commission
of an offence under sub-section (1) of section 19 or
section 20 or who fails to record such offence under
sub-section (2) of section 19 shall be punished with
imprisonment of either description which may
extend to six months or with fine or with both.
(2) Any person, being in-charge of any company or
an institution (by whatever name called) 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 punished with
imprisonment for a term which may extend to one
year and with fine.
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(3) The provisions of sub-section (1) shall not apply
to a child under this Act."
5 At this stage, it is also relevant to quote statement of
objects and reasons for enactment of the Protection of Children
from Sexual Offences Act, 2012, which reads thus :
"Statement of Objects and Reasons -
Article 15 of the Constitution, inter alia, confers
upon the State powers to make special provision for
children. Further, Article 39, inter alia provides that
the State shall in particular direct its policy towards
securing that the tender age of children are not
abused and their childhood and youth are protected
against exploitation and they are given facilities to
develop in a healthy manner and in conditions of
freedom and dignity.
2. The United Nations Convention on the Rights of
Children, ratified by India on 11th December, 1992,
requires the State Parties to undertake all
appropriate national, bilateral and multilateral
measures to prevent (a) the inducement of coercion
of a child to engage in any unlawful sexual activity;
(b) the exploitative use of children in prostitution or
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other unlawful sexual practices; and (c) the
exploitative use of children in pornographic
performances and materials.
3. The data collected by the National Crime
Records Bureau shows that there has been increase
in cases of sexual offences against children. This is
corroborated by the "Study on Child Abuse: India
2007" conducted by the Ministry of Women and
Child Development. Moreover, sexual offences
against children are not adequately addressed by the
extant laws. A large number of such offences are
neither specifically provided for nor are they
adequately penalised. The interests of the child,
both as a victim as well as a witness, need to be
protected. It is felt that offences against children
need to be defined explicitly and countered through
commensurate penalties as an effective deterrence.
4. It is, therefore, proposed to enact a self
contained comprehensive legislation inter alia to
provide for protection of children from the offences
of sexual assault, sexual harassment and
pornography with due regard for safeguarding the
interest and well being of the child at every stage of
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the judicial process, incorporating child-friendly
procedures for reporting, recording of evidence,
investigation and trial of offences and provision for
establishment of Special Courts for speedy trial of
such offences.
5. The Bill would contribute to enforcement of the
right of all children to safety, security and protection
from sexual abuse and exploitation.
6. The Notes on Clauses explain in detail the
various provisions contained in the Bill.
7. The Bill seeks to achieve the above objectives."
It is, thus, clear that this is a Special Act enacted for protection of
children as per mandate of the Constitution of India as well as per
mandate of United Nations Convention on the rights of children,
ratified by our country. Keeping in mind the object of the Act, the
legislature in its wisdom has enacted Section 19 thereof which
casts duty on each and every person who has apprehension or
knowledge that an offence under the POCSO Act has been
committed, to report the same either to the Special Juvenile Police
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Unit or to the local police. Failure to discharge this duty warrants
punishment as prescribed under Section 21 of the POCSO Act.
6 Let us judge the case in hand keeping in mind these
mandatory provisions of the POCSO Act. According to the
prosecution case, the victim girl child was taking school education
in a residential school named as Shri Sant Gadge Maharaj
Madhyamik Ashramshala at Gondavale. Being a residential
ashram school, the victim female child used to stay in the school
itself along with her colleagues. It is case of the prosecution that
accused no.1 Shahaji Patole used to work as the Cook in the
Ashram School where the victim female child was staying for
taking education. The prosecution alleged that on 11th September
2015 when because of her ill-health, the victim female child
instead of attending her classes was staying in her room, accused
no.1 Shahaji Patole - cook of the ashram school committed rape
on her by taking her to the nearby bathroom. This incident is
witnessed by Bharti D. Lokhande and Sonia Ovhal - colleagues of
the victim female child. It is case of the prosecution that the
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victim female child then reported the incident to the present
revision petitioner / original accused no.2, who happens to be the
Director of the Trust running the Ashram School. It is case of the
prosecution that, thereafter, informant Anjana - aunt of the victim
female girl, so also her other relatives, disclosed the incident to
the revision petitioner / original accused no.2. However, instead
of reporting the matter to the police, according to the prosecution
case, the revision petitioner / original accused no.2 insisted the
informant and other relatives of the victim female child to settle
the matter on a cup of tea in order to prevent defamation of the
school. Statement of the victim female child, her colleague Bharti,
so also the FIR and other statements reflect the fact that the
incident of aggravated penetrative sexual on the victim female
child by the cook of the Ashram School came to be reported to the
revision petitioner / original accused no.2 - Director of the Trust,
but, he insisted for settling the matter instead of reporting the
same to the police, in order to prevent defamation of his school.
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7 After perusal of the material produced before it in the
form of the charge-sheet, the learned Additional Sessions Judge,
Waduj, on 7th January 2017, has framed charges including the
charge for the offence punishable under Section 19 read with
Section 21 of the POCSO Act, so also under Section 202 of the IPC
against the revision petitioner /original accused no.2.
8 If averments made by the first informant in her FIR as
well as in their statements by the victim female child and her
colleague Bharti, so also averments made by witnesses in other
statements recorded by the Investigator under Section 161 of the
Code of Criminal Procedure is perused, then it becomes clear that
there is enough material to come to the conclusion that despite
having knowledge that the offence punishable under the POCSO
Act has been committed in the Ashram School, the revision
petitioner / original accused no.2, who happens to be the Director
of the Trust managing that School, has, instead of reporting the
matter to the Special Juvenile Police Unit or to the local police,
insisted the First Informant and relatives of the victim female child
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to settle the matter over a cup of tea. As such, it cannot be said
that there are no sufficient grounds for proceeding against the
revision petitioner / original accused no.2 so far as alleged offence
is concerned.
9 At this stage, it is apposite to quote paragraphs 12 and
15 of the judgment in the matter of Kamal Prasad Patade
(supra) relied by the learned advocate appearing for the revision
petitioner / original accused no.2. Those read thus :
12. The qualifying word in Section 19(1) of the
POSCO Act is apprehension regarding an offence is
likely to be committed or has knowledge that such
an offence under POSCO Act has been committed,
he shall provide such information to the Special
Juvenile Police Unit or local police. Thus, Section
19(1) of the POSCO Act can be invoked only when
the person concerned was having exclusive
knowledge of commission of offence under POSCO
Act and if the person is in-charge of the institution
who fails to report the commission of an offence
under sub-section (1) of Section 19 of the POSCO
Act in respect of a subordinate under his control, he
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would be liable for prosecution under Section 21(2)
of the POSCO Act.
15. Likewise, in the matter of A.S. Krishnan v.
State of Kerala, AIR 2004 SC 3229, Their Lordships
of the Supreme Court have held as under:-
"9. Under the IPC, guilt in respect of almost all
the offences is fastened either on the ground of
"intention" or "knowledge" or "reasons to
believe". We are now concerned with the
expressions "knowledge" and "reasons to
believe". "Knowledge" is awareness on the part
of person concerned indicating his state of mind.
"Reasons to believe" is another facet of the state
of mind. "Reasons to believe" is not the same
thing as "suspicion" or "doubt" and mere seeing
also cannot be equated to believing. "Reasons to
believe" is higher level of state of mind. Likewise
"knowledge" will be slightly on higher plane than
"reasons to believe". A person can be supposed to
know where there is a direct appeal to his senses
and a person is presumed to have a reason to
believe if he has sufficient cause to believe the
same. Section 26, IPC explains the meaning of
the words "reasons to believe" thus.
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26. "Reasons to believe". A person is said to
have 'reasons to believe' a thing, if he has
sufficient cause to believe that thing but not
otherwise".
10 If the case in hand is compared with the observations
made in above paragraphs by the learned Single Judge of Hon'ble
Chhattisgarh High Court, then it becomes clear that the revision
petitioner /original accused no.2 was having clear perception of
the fact that the offence of aggravated penetrative sexual assault
had been committed in his own institution by his own employee
on one of the residents of the ashram school, who happens to be a
"child" under the meaning of the POCSO Act. Material collected
by the Investigator during the course of the investigation indicates
that the revision petitioner /original accused no.2 was certainly
having the specific knowledge about commission of the offence of
aggravated penetrative sexual assault on the victim female child
by the employee of the Ashram School run by the Trust, of which
the revision petitioner / original accused no.2 was the Director.
As per mandate of Section 19 of the POCSO Act, he was enjoined
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with the duty to report the matter to the police. As such, the
prosecution has made out a prima facie case against the revision
petitioner / original accused no.2 which has resulted in framing of
the charge. Neither any procedural irregularity nor manifest error
of law could be found in the act of the learned trial Judge in
framing the charge against the revision petitioner / original
accused no.2.
11 Now let us deal with the submissions of Shri Kate, the
learned advocate appearing for the revision petitioner / original
accused no.2 that unless and until the principal offence is proved
against the main accused i.e. the cook, who allegedly committed
penetrative sexual assault on the victim child, the revision
petitioner cannot be charge-sheeted for the offence punishable
under Section 19 read with Section 21 of the POCSO Act. The
learned advocate placed reliance on observations of the Hon'ble
Chhattisgarh High Court made in paragraph 17 in the matter of
Kamal Prasad Patade (supra). In that matter, accused Indrajeet
had committed penetrative sexual assault on the victim child and
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allegations were to the effect that though this incident came to be
reported to petitioner Kamal Prasad - the Principal of the school,
he had failed to report the same to the police. Paragraph 17 of the
said judgment reads thus :
"17 From careful perusal of the record, it is
quite vivid that in a proceeding launched by the
prosecution against co-accused Indrajeet Thakur, the
prosecution is yet to establish that the co-accused
Indrajeet Thakur has committed penetrative sexual
assault/aggravated penetrative assault within the
meaning of Sections 3 & 5 of the POCSO Act which
is punishable under Sections 4 & 6 of the POCSO Act
respectively with grandson of respondent No.2 on
20.8.2015 and also to establish other offences, which
are pending trial. Thus, this fact is to be established
that such an offence has been committed by co-
accused/principal offender Indrajeet Thakur with
grandson of respondent No.2. In the prosecution
under Section 21(2) of the POCSO Act, it is
necessary for the prosecution to establish first
commission of main offence under Sections 4 & 6 of
the POCSO Act before making the person liable
under Section 21(2) of the POCSO Act as the
prosecution has firstly to establish beyond doubt in
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the jurisdictional criminal court that an offence
under Sections 4 & 6 of the POCSO Act has been
committed by an accused person and once finding is
recorded by jurisdictional criminal court convicting
the accused therein for offences under Sections 4 & 6
of the POCSO Act, then to establish the petitioner
had exclusive knowledge of such an offence having
been committed by the co-accused under POCSO Act
and despite such knowledge, he failed to report the
matter under Section 19(1) of the POCSO Act to the
competent authority including local police station,
then only penal provision contained in Section 21(2)
of the POCSO Act would attract."
The Hon'ble Chhattisgarh High Court allowed the writ petition
filed by Kamal Prasad challenging the consolidated charge-sheet
implicating him as well as co-accused Indrajeet for offences under
various sections of the POCSO Act, by holding that it is necessary
for the prosecution to establish first commission of the main
offence before making the person liable for the offence punishable
under Section 21(2) of the POCSO Act.
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12 Perusal of the judgment in the matter of Kamal
Prasad Patade (supra) shows that the aspect as to what persons
may be charged jointly was never considered in that matter. At
this juncture, it is apposite to quote provisions of Section 31 of the
POCSO Act which reads thus :
"31 Application of Code of Criminal Procedure,
1973 to proceedings before a Special Court: Save
as otherwise provided in this Act, the provisions of
the Code of Criminal Procedure, 1973 including the
provisions as to bail and bonds shall apply to the
proceedings before a Special Court and for the
purposes of the said provisions, the Special Court
shall be deemed to be a court of Sessions and the
person conducting a prosecution before a Special
Court, shall be deemed to be a Public Prosecutor."
It is, thus clear that unless otherwise provided, offence under the
POCSO Act are required to be tried by following the provisions of
the Code of Criminal Procedure, 1973. Section 223 of the Code of
Criminal Procedure, 1973, deals with what persons may be
charged jointly and it reads thus :
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"223. What persons may be charged jointly - The
following persons may be charged and tried
together, namely:-
(a) persons accused of the same offence committed
in the course same transaction;
(b) persons accused of an offence and persons
accused of abetment of, or attempt to commit, such
offence;
(c) persons accused of more than one offence of the
same kind, within the meaning of section 219
committed by them jointly within the period of
twelve months;
(d) persons accused of different offences committed
in the course of the same transaction;
(e) persons accused of an offence which includes
theft, extortion, cheating, or criminal
misappropriation, and persons accused of receiving
or retaining, or assisting in the disposal or
concealment of, property possession of which is
alleged to have been transferred by any such offence
committed by the first-named persons, or of
abetment of or attempting to commit any such last-
named offence;
(f) persons accused of offences under sections 411
and 414 of the Indian Penal Code (45 of 1860 ) or
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either of those sections in respect of stolen property
the possession of which has been transferred by one
offence;
(g) persons accused of any offence under Chapter
XII of the Indian Penal Code (45 of 1860)
relating to counterfeit coin and persons accused of
any other offence under the said Chapter relating to
the same coin, or of abetment of or attempting to
commit any such offence; and the provisions
contained in the former part of this Chapter shall, so
far as may be, apply to all such charges:
Provided that where a number of persons are
charged with separate offences and such persons do
not fall within any of the categories specified in this
section, the Magistrate or Court of Session may, if
such persons by an application in writing, so desire,
and if he or it is satisfied that such persons would
not be prejudicially affected thereby, and it is
expedient so to do, try all such persons together."
It is, thus, clear from clause (d) of Section 223 of Code of Criminal
Procedure that, persons accused of different offences committed in
the course of same transaction can be charged and tried together
in a single trial. In the case in hand, after sustaining aggravated
penetrative sexual assault on her by the cook working in the
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ashram school, the victim female child reported the incident to the
present revision petitioner with a hope that he will act according
to the law by reporting the incident to either the Special Juvenile
Police Unit or the local police. Thereafter, the first informant and
a relative of the victim female child also reported the incident to
the revision petitioner / accused as seen from the record of the
charge-sheet. However, instead of taking necessary action, the
revision petitioner / accused had attempted for compromising the
matter. It is thus clear that the allegations against the main
accused are for the offence punishable under Section 5 of the
POCSO Act whereas allegations against the revision petitioner /
accused are in respect of commission of offence punishable under
Section 21(1) of the POCSO Act, but these different offences are
certainly committed in the course of the same transaction and
therefore the revision petitioner / accused can be charged and
tried validly together with the main accused who is stated to have
committed the principal offence. Clause (d) of Section223 of the
Code of Criminal Procedure in no unclear terms prescribes and
permits joint trial of persons who have committed different
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offences but in the course of same transaction. The primary
condition for such joint trial is that persons should have been
accused either of the same offence or of different offences but
committed in the course of the same transaction. The meaning of
the term "same transaction" can be found in sub-section (1) of
Section 220. It implies one series of act so connected together as
to form the same transaction. In other words, the term "the same
transaction" comprises all the act of all the persons concerned
done in the cause of carrying through the affair in question and
the prima facie test, as the words "in the course of" indicates, is
continuity of action and continuity of purpose [see Ravindra Pal
Singh vs. State of Punjab 2004 Cri.L.J. 1332]. In the case in hand
the main act of commission of an aggravated penetrative sexual
assault by the co-accused and non-reporting the same to the police
by the revision petitioner despite knowledge depicts commission
of different offences by them but in the course of the same
transaction, warranting their joint charge and the consequent
trial.
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13 Similarly, in the wake of the fact that the revision
petitioner /original accused no.2 was certainly having the
knowledge of commission of the alleged offence, I am unable to
persuade myself to endorse the view taken by the learned Single
Judge of Chhattisgarh High Court to the effect that it is initially
for the prosecution to establish first commission of the main
offence under the POCSO Act for making a person liable for the
offence punishable under Section 21(2) of the POCSO Act. If such
view is accepted, then, it will not only defeat the very object of
enactment of the POCSO Act i.e. to protect the child from sexual
offences, but it will also violate the provision of Section 33(5) of
the POCSO Act, which provides that the child should not be called
repeatedly to testify in the court.
14 In this view of the matter, no case for interference in
revisional jurisdiction is made out.
15 The revision petition is devoid of merit and the same is
dismissed.
(A. M. BADAR, J.)
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