Bombay High Court
Jacob Joseph Das vs State Of Maharashtra, Thr. P.S.O. ... on 24 January, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:1219-DB
Judgment apl637.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION No. 637/2016
& CRIMINAL APPLICATION [APL] NO. 642/2016.
......
CRIMINAL WRIT PETITION NO.637/2016.
Jacob Joseph Das,
Aged about 48 years, Occupation - Service,
Principal, Yavatmal Public School,
Darda Nagar, Wadgaon Road,
Yavatmal. ... APPLICANT.
VERSUS
1.State of Maharashtra,
through Additional Chief Secretary,
Home Department, Mantralaya,
Mumbai - 32.
2.The Superintendent of Police,
Yavatmal.
3.The Police Station Officer,
Wadgaon Road Police Station,
Yavatmal.
4.Smt.Deepti w/o Vinod Kachhawa,
Occupation - Service, resident of
Darda Nagar, Wadgaon Road,
Yavatmal.
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Judgment apl637.16
2
5.Shri D.N. Dhole,
Police Station Officer,
Wadgaon Road Police Station,
Yavatmal. ... NON-APPLICANTS.
WITH
CRIMINAL APPLICATION [APL] NO.642/2016.
Jacob Joseph Das,
Aged about 48 years, Occupation - Service,
Principal, Yavatmal Public School,
Darda Nagar, Wadgaon Road,
Yavatmal. ... APPLICANT.
VERSUS
1.State of Maharashtra,
TThe Police Station Officer,
Wadgaon Road Police Station,
Yavatmal.
2.Sau. Kuldeep Kaur w/o Tadveer
Singh Sanga,
Occupation - Housewife, resident
of Prithviraj Nagar, Part-II,
Wadgaon Road, Yavatmal. ... NON-APPLICANTS.
---------------------------------
Shri F.T. Mirza, Advocate for the Applicant.
Mr. S.S. Doifode, A.P.P. for Non-applicants/State.
None for the Complainant-Served.
----------------------------------
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Judgment apl637.16
3
CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : JANUARY 24, 2024.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
The very applicant has sought quashing of two first
information reports by invoking the inherent jurisdiction of this
Court in terms of Section 482 of the Code of Criminal Procedure.
For the sake of convenience, we have taken up both the matters for
disposal by this common judgment.
2. Criminal Application No.637/2016 seeks to quash the first
information report bearing Crime No.480/2016 registered with
Wadgaon Road Police Station, District Yavatmal for the offence
punishable under Sections 354, 354A of the Indian Penal Code,
Sections 6, 8, 10, 12 and 21 of the Protection of Children from
Sexual Offences Act (POCSO) and Section 75 of the Juvenile Justice
[Care and Protection of Children] Act, 2015, which was lodged at
the instance of the informant - Deepti. Whilst, Criminal Application
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No.642/2016 has been filed to quash the first information report
bearing Crime No.489/2016 registered with Wadgaon Road Police
Station, District Yavatmal for the offence punishable under Sections
376[2][f], 354, 354A of the Indian Penal Code, Sections 6, 8, 10, 12
and 21 of the Protection of Children from Sexual Offences Act and
Section 75 of the Juvenile Justice [Care and Protection of Children]
Act, 2015, lodged at the instance of the informant - Sau.Kuldeep.
Both first information report pertains to molestation of school going
minor girls having similar allegations against the applicant, who is
Principal of the concerned School.
3. It appears that two first information reports have been
registered by the police against two teachers working in the School.
The allegations in both the first information reports are identical
stating that both the teachers have molested girl students of the
school. On the basis of the respective reports, offences have been
registered against both the teachers under the provisions of Indian
Penal Code, Protection of Children from Sexual Offences Act and the
Juvenile Justice [Care and Protection of Children] Act. The
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applicant (Principal) and one Kishore Darda, Secretary of the
aforesaid school have been implicated for the offence punishable
under Section 21 of the POCSO Act, alleging that they failed in their
duties in not reporting the offence to the police authorities in terms
of Section 19 of the POCSO Act.
4. The learned Counsel appearing on behalf of the applicant
would submit that the material collected during the course of
investigation does not make out prima facie case against the
applicant. It is submitted that on 29.06.2016 itself the alleged act
was disclosed to the applicant by the parents and on the very same
day within few hours crime came to be registered. He would submit
that since already information had reached to the police culminated
into registration of crime, there is no procedure or purpose in again
lodging the report. He would submit that the co-accused Kishore
Darda had applied to the trial Court for discharge, however, it was
rejected. Being aggrieved by the said order, the co-accused Darda
has filed Criminal Application Nos. 295 and 296 of 2017 before this
Court seeking discharge. Copy of the common order dated
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06.11.2023 has been produced showing that on merits, the co-
accused - Darda facing similar allegations has been discharged by
this Court. Admittedly, the said order has not been questioned
before the higher forum, meaning thereby it has attained finality. In
that context, he would submit that the applicant too is entitled for
exoneration. Moreover, it is submitted that the case of applicant
stands on better footing, as on the concerned date he was at Nagpur
and he returned to the school at 12.30 p.m. when he learn about the
things i.e. after disclosure to co-accused Darda.
5. The learned A.P.P. has resisted both the applications by
contending that there is sufficient material to indicate the
involvement of the applicant in the form of not disclosing the
commission of offence, despite due knowledge. It is submitted that
though the applicant came to know about the commission of offence
on 29.06.2016 around 12.30 p.m., however, till next day he has not
reported the matter, attracting the rigor of Section 19 of the POCSO
Act. It is submitted that the applicant is also liable for the offence of
abetment under Section 17 of the POCSO Act, which was not
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considered by the learned Single Judge while discharging the co-
accused Darda. Moreover, it is submitted that the applicant being
Principal, he is a responsible person and hence, his case differs from
the case of co-accused Darda. Lastly, it is submitted that CCTVs
were installed in the school and the monitoring unit was at the office
of the Principal i.e. applicant. According to him since the applicant
did not report the matter even after watching the CCTV footage, the
offence is complete.
6. Both the parties are ad idem on the point that the
applicant was serving as a Principal, whilst the co-accused Darda was
Secretary of the Education Society. On 29.06.2016, first time the
offence was disclosed to both of them when the parents gathered
around 10 a.m. in the school complaining atrocities committed by
two teachers. It is not in dispute that immediately parents meeting
was arranged in the school to address the issue. Applicant
admittedly was initially not present in the meeting, but, he came
from Nagpur to the school around 12.30 p.m. It is also not in
dispute that within half an hour the police arrived in the school and
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thereafter, within few hours at the instance of two parents, crime
came to be registered. Perusal of first information report bearing
Crime No.480/2016 discloses that the information reached to the
police on 29.06.2016 at about 3 p.m., whilst crime No.489/2016 was
registered at 5.15 p.m.
7. On the canvass of admitted facts the matter need to be
scrutinized. We have an advantage of going through the order
passed by the learned Single Judge dated 06.11.2023, whereby the
co-accused facing similar allegations has been discharged. The
relevant observations made by this Court in paragraph nos. 17 to 19
are reproduced hereinbelow.
"17. Having given my thoughtful
consideration to the submissions made by both the
sides, I find substance in the submissions made by
Mr Mirza, for the reason that both the FIRs would
show that the applicants herein or, for that
purpose, the school authorities and management,
were not aware of the occurrence of any incident
prior to 29th June, 2016. These people were made
to know of the incident for the first time at about
10.30 am on 29th June 2016. The parents have for
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the first time on that day, raised the grievance with
the school authorities. The parents demanded
presence of Secretary, who promptly attend the
school and responded to the grievance made by the
parents. He sought some time i.e. half an hour to
an hour, which could be said to be reasonable time,
to verify the incident from the teachers and by
watching the CCTV footage. In addition and
responding to the nature of allegations levelled
against the teachers, applicant Kishor has removed
both the teachers on the same day i.e. 29th June
2016. In that sense, the applicant-Kishor has taken
prompt action against the so called delinquent
teachers. This response will be relevant to
understand whether the applicant-Kishor had
knowledge of the offence or was just informed of
the commission of the offence. He sought half an
hour to an hour to verify the incident from the
concerned teachers and also by watching CCTV
footage. This opportunity was, however, not given
to him. In the circumstances, what was within the
knowledge of the applicant was the information of
commission of offence and not the knowledge of
commission of offence.
18. The Supreme Court in the
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aforementioned cases, has described "knowledge"
to be something which will be slightly on a higher
pedestal than the expression "reason to believe". In
the present case, merely on the basis of the
grievance of parents, one cannot attribute
knowledge of commission of offence to the
applicants. In fact, it will be difficult to even
suggest that applicants had reason to believe unless
they were given opportunity of verifying the
allegation of commission of an offence. The
Supreme Court has described "reasons to believe
thing", so as to mean if the person has sufficient
cause to believe that thing but not otherwise. Mere
information cannot be equated with "sufficient
cause to believe" the occurrence of the incident.
The verification of the information and not
investigation therein, may lead to a state of mind of
a person to have sufficient cause to believe of the
occurrence of the incident/ offence informed of.
The term "knowledge" is on a higher footing than
that of the expression "reasons to believe". The
person can be supposed to know the fact only
where there is a direct appeal to his senses.
Considering above concept what transpires in the
present case is that on 29th June 2016, except for
passing on information by the parents to the
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applicant-Kishor nothing more has happened prior
to police coming in the school, who took custody of
both the teachers. Thus, prior to acquiring the
knowledge by the applicants, the local police
arrived at the spot and took custody of the
teachers.
19. Even otherwise and even if it is
presumed that applicant Kishor had knowledge of
commission of offence by the teachers, the
information of alleged offence was provided to the
local police, in the presence of applicant-Kishor
and, therefore, there was no reason why should he
report the offence to police again. In fact, if passing
on information was the only requirement to
attribute knowledge, all those who were present in
the meeting will then be and ought to have been
booked under section 19 of the POCSO Act. This
cannot be the purport of Section 19 of the POCSO
Act. The provisions has been made with a view to
discharge duty to report the matter relating to the
child victim to the police. There is, however, no
reason for such person to report the matter which
has already been reported to the local police. In the
circumstances, it cannot be said that the applicant-
Kishor has not discharged his burden as required
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under Section 19 of the POCSO Act."
8. The learned A.P.P. is unable to distinguish the role of the
applicant. Though it is argued that the applicant is also liable for the
offence of abetment punishable under Section 17, however, he is
unable to satisfy us in that regard. Admittedly no such offence of
abetment has been registered. The learned A.P.P. would submit that
the applicant has abetted the commission of offence punishable
under Section 354 of the Indian Penal Code, as well as Sections 8
and 12 of the POCSO Act. He would submit that though the
applicant has seen the occurrence in CCTV, however, he did nothing
and thus, abetted those offence. We are unable to accept said
submission which is over stretched and imaginary. There is no
material that the applicant has actually seen the alleged occurrence
in the CCTV footage. The police papers indicate that one lady
warden was assigned the job of monitoring the CCTV continuously
during school hours. Therefore, on mere conjectures and surmises it
cannot be presumed that too without any material that the applicant
had seen the occurrence. Therefore, the submission about
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applicability of offence of abetment is totally devoid of merits.
9. The learned A.P.P. would submit that though the
applicant came to know about commission of offence at 12.30 p.m.,
however, he did not report. Our attention is invited to the
communication made by the applicant on the following day to the
police for registration of crime. The learned A.P.P. would submit
that till next day the applicant waited and thus, the offence under
Section 19 of the POCSO Act is complete. The said communication
dated 30.06.2016 itself indicates that already first information was
registered that is why no action was taken. We are unable to
understand as to how there would be second first information report,
since admittedly on the very same day within few hours crimes have
been registered at the instance of parents. Moreover, it is
noteworthy that already police has arrived in the school and taken
both erring teachers into the custody. Since the said action was
already taken by the police, there is no reason to hold that the
applicant failed in his duty in not reporting the matter to the police.
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10. The learned Counsel for the applicant has relied upon the
judgment of the Hon'ble Supreme Court, in the case of A S Krishnan
& another vs. State of Kerala - 1998 Cri.L.J 207 (Kerala). The
Supreme court while distinguishing the term, "intention",
"knowledge" and "reasons to believe", has observed in para nos. 9
and 10 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 "reason to believe". We are now
concerned with the expressions "knowledge" and
"reason to believe". "Knowledge" is an awareness on
the part of the person concerned indicating his state of
mind. "Reason to believe" is not the same thing as
"suspicion" or "doubt" and mere seeing also cannot be
equated to believing. "Reason to believe" is a higher
level of statement of mind. Likewise "knowledge" will
be slightly on higher plane than "reason 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 "reason to believe" thus.
26. "Reason to believe" A person is said to
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have 'reason to believe' a thing, if he has
sufficient cause to believe that thing but
not otherwise."
10. In substance what is means is that a person must
have reason to believe if the circumstances are such
that a reasonable man would, by probable reasoning,
conclude or infer regarding the nature of the thing
concerned. Such circumstances need not necessarily be
capable of absolute conviction or inference; but it is
sufficient if the circumstances are such creating a
cause to believe by chain of probable reasoning
leading to the conclusion or inference about the nature
of the thing. These two requirements i.e. "knowledge"
and "reason to believe" have to be deduced from
various circumstances in the case. (See Joti Parshad v.
State of Haryana (AIR 1993 SC 1167).
11. The learned counsel for the applicants, then, relied upon
another judgment of the Supreme Court, in the case of Dr. Sr. Tessy
Jose and others vs. State of Kerala - AIR 2018 SC 4654. While
dealing with section 19(1) of the POCSO Act, the Supreme Court has
held in para nos. 9 and 10 as under :-
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"9. The entire case set up against the appellants is
on the basis that when the victim was brought to
the hospital her age was recorded as 18 years. On
that basis appellants could have gathered that at
the time of conception she was less than 18 years
and was, thus, a minor and, therefore, the
appellants should have taken due care in finding as
to how the victim became pregnant. Fastening the
criminal liability on the basis of the aforesaid
allegation is too far fetched. The provisions of
Section 19(1), reproduced above, put a legal
obligation on a person to inform the relevant
authorities, inter alia, when he/she has knowledge
that an offence under the Act had been committed.
The expression used is "knowledge" which means
that some information received by such a person
gives him/her knowledge about the commission of
the crime, There is no obligation on this person to
investigate and gather knowledge. If at all, the
appellants were not careful enough to find the
cause of pregnancy as the victim was only 18 years
of age at the time of delivery. But that would not
be translated into criminality.
10. The term "knowledge" has been interpreted by
this Court in A.S. Krishnan and others vs. State of
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Kerala, to mean an awareness on the part of the
person concerned indicating his state of mind.
Further, a person can be supposed to know only
where there is a direct appeal to his senses. We
have gone through the medical records of the
victim which were referred by Mr. Basant R.,
Senior Advocate for the appellants. 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 a baby.
Therefore, appellant No.1 attended to the victim
for the first time between 9.15 am and 9.25 am."
12. In said context it is submitted that the applicant has no
knowledge about the occurrence, but, still both teachers were
suspended on the very same day. Moreover, within the knowledge
of the applicant, the crime was registered and thus, there was no
necessity to again approach to the police. The legislative intent and
purpose behind Section 19 is that the offence against children was
not to be screened. Already police have been informed in the form
of registration of the crime and thus, it cannot be said that the
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applicant failed in his duty.
13. The learned A.P.P. has relied on two decisions in case of
(1) Balasaheb @ Suryakant Yashwantrao Mane .vrs. State of
Maharashtra - 2017 [2] Mh.L.J. (Cri) 589 and (2) Sanjay
Manoharrao Shirbhate .vrs. The State of Maharashtra and others -
2019 All MR (Cri) 1627. However, being different facts, they would
not assist the prosecution in any manner. Admittedly it has been
surfaced that the information had reached to the police, and thus,
the applicant cannot be said to have been negligence in discharging
his duties. Moreover, it is pointed out that two teachers were
already tried and acquitted by the Court of competent jurisdiction.
14. In the light of above position, continuation of prosecution
would be an abuse of the process of Court. The material collected
during the course of investigation is insufficient to establish a prima
facie triable case against the applicant. Already the learned Single
Judge of this Court has discharged the co-accused facing similar
allegations, and the said order has attained finality. The applicant
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has made certain other grievance about his illegal arrest in violation
of the directions of the Supreme Court in case of Arnesh Kumar .vrs.
State of Bihar and another - [2014] 8 SCC 273. Already the
applicant has filed Contempt Petition No.143/2017 for that purpose,
which is still pending. In view of that, we are not inclined to
entertain rest prayers. However, Criminal Writ Petition and Criminal
Application needs to be allowed, hence the following order.
ORDER
(i) Criminal Writ Petition No. 637/2016 and Criminal
Application No. 642/2016 are allowed and disposed of.
(ii) The first information report bearing Crime No.480/2016
registered with Wadgaon Road Police Station, District
Yavatmal for the offence punishable under Sections 354,
354A of the Indian Penal Code, Sections 6, 8, 10, 12
and 21 of the Protection of Children from Sexual
Offences Act (POCSO) and Section 75 of the Juvenile
Justice [Care and Protection of Children] Act, 2015, as
also the first information report bearing Crime
No.489/2016 registered with Wadgaon Road Police
Station, District Yavatmal for the offence punishable
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under Sections 376[2][f], 354, 354A of the Indian Penal
Code, Sections 6, 8, 10, 12 and 21 of the Protection of
Children from Sexual Offences Act and Section 75 of the
Juvenile Justice [Care and Protection of Children] Act,
2015, are hereby quashed and set aside, so far as it
relates to the present applicant.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 01/02/2024 10:15:34
