Bombay High Court
Sushama @ Sushma Manish Shah And Another vs The State Of Maharashtra And Another on 4 April, 2025
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2025:BHC-AUG:9913-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1686 OF 2024
1) Mrs. Sushama @ Sushma Manish Shah,
Age-54 years, Occupation:Service [Principal],
Resident of: Subhash Chowk, Nala,
Nandurbar, District-Nandurbar,
2) Dr. Yogesh Pramodshankar Desai,
Age-63 years, Occupation:Medical Practice,
Resident of: 10/B, Manik Nagar,
Near LIC Office, Nandurbar,
District-Nandurbar
...PETITIONERS
[Accused Nos.2 and 3]
VERSUS
1) The State of Maharashtra,
Through Office In-charge,
Nandurbar City Police Station,
Nandurbar, District-Nandurbar,
2) X. Y. Z.
...RESPONDENTS
...
Mr. Mukul S. Kulkarni Advocate for Petitioners.
Ms. P.R. Bharaswadkar, A.P.P. for Respondent No.1 - State.
Mr. Suniket A. Kulkarni Advocate for Respondent No.2.
...
CORAM: SMT. VIBHA KANKANWADI AND
SANJAY A. DESHMUKH, JJ.
DATE OF RESERVING JUDGMENT : 11th FEBRUARY 2025
DATE OF PRONOUNCING JUDGMENT : 4th APRIL 2025
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JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Rule. Rule made returnable forthwith. Heard learned
counsel for the appearing parties finally, by consent.
2. Present Petition has been filed under Article 226 of the
Constitution of India and under Section 482 of the Code of
Criminal Procedure, initially for quashing the First Information
Report (for short "the FIR") vide Crime No. 542 of 2024, dated
28th August 2024 registered with Nandurbar City Police Station,
Nandurbar, and by way of amendment for quashing the
proceedings in Special Case No.33 of 2024 pending before the
learned Special Judge, under the Protection of Children from
Sexual Offences Act, Nandurbar, for the offence punishable
under Sections 11(3), 12, 16, 17 and 21(2) of the Protection of
Children from Sexual Offences Act, 2012 ( for short "the POCSO
Act") and Section 75(1)(iii) of Bharatiya Nyaya Sanhita, 2023,
and Section 67-A of the Information Technology Act.
3. Taking into consideration the involvement of POCSO Act,
we would like to mask the name of respondent No.2.
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4. Heard learned Advocate Mr. Mukul Kulkarni for petitioners,
learned APP Ms. P.R. Bharaswadkar, for respondent No.1 - State
and learned Advocate Mr. Suniket Kulkarni for respondent No.2.
5. Learned Advocate for the petitioners submits that
petitioner No.1 is the Principal of the school where the daughter
of respondent No.2 is taking education and petitioner No.2 is a
reputed medical practitioner and secretary of the trust which
runs the said school. Daughter of respondent No.2 is studying in
5th standard and the FIR relates to the incident that had allegedly
taken place on 27th August 2024 in the school. The main accused
was working as a sweeper with the school. On the day of
incident, the school was over by 5.15 p.m. and the girl returned
to house around 5.30 p.m. After her return, she disclosed the
fact to her mother - respondent No.2 that in the morning when
she had gone to the school, it was noticed that the class had
already started and therefore, she was standing on the ground.
One uncle was sweeping the ground and he told her that she
should go to library and see whether there is any teacher
available. The girl went there. There was a teacher available and
after witnessing teacher sitting there, she came back to the
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sweeper. Then sweeper asked her, as to whether she can start
the net connection from the mobile. She said yes and then the
sweeper asked her to accompany him on the upper floor of the
school. After they went to the upper floor, the teacher from the
library left the library. The girl was standing outside the library
and the said uncle / sweeper gave his mobile for starting the net
connection, in the hands of the girl. The girl noticed that the net
connection was already running / operating and she told the said
fact to the said sweeper. Thereafter the sweeper pushed on the
button of WhatsApp but then he cut it and he started showing
dirty videos from his mobile to the girl. The girl immediately
gave mobile to the sweeper and started going down stairs. At
that time the sweeper asked her, where she would be available
in the afternoon for starting the net connection. At that time she
told that she would be near the office. He then asked the girl
that after the school timings are over, where she stands / goes.
She did not answer the said question. The mother asked her as
to whether that sweeper had done anything to her, the girl said
no. As the school timings were over, it was not possible to go to
school, therefore, respondent No.2 went to one Kalal madam,
who is residing near the house of respondent No.2 and told her
about the incident. Said Kalal madam had then informed the said
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fact to petitioner No.1 and class-teacher Mali. Petitioner No.1
had then checked the CCTV footage and told Kalal madam to
make the CCTV footage available to the parents of the girl. Kalal
madam then went to the house of the informant around 9.30 to
10.00 p.m., when even husband of the informant was available
in the house. The informant then says that around 9.00 a.m. of
the next day, she along with her husband, daughter and some
relatives, went to the house of petitioner No.1. Petitioner No.1
then made an inquiry, as to what had happened with the girl.
Petitioner No.2 had also come to the house of petitioner No.1
and he had also made an inquiry. The CCTV footage was shown
by petitioner No.2 to the parents and then told the name of the
sweeper who was serving with the school since last 25 years.
Petitioner No.1 told the parents that they can lodge report
regarding the incident and the school will take action of
removing the said sweeper from his job. Petitioner No.2 told the
parents that if they want to go ahead with the FIR, then their
names would come in the newspaper and they may get
defamed. But the parents told that they would go ahead with the
FIR and not worried about any news item that may be published.
Then the informant, her husband and other relatives went to the
police station and lodged the report.
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6. After narrating this entire FIR and also taking us through
the contents of the charge-sheet, the learned Advocate for the
petitioners submitted that the prosecution has invoked Section
21(2) of the POCSO Act against the present petitioners
contending that they had failed to report or record a case in
spite of having information about occurrence of such incident.
The other sections are against the main accused. The story after
the daughter narrated the incident to mother and then mother
going to Kalal madam and informing the entire incident, is then
supported by the statement under Section 161 of the Code of
Criminal Procedure of said Kalal madam. She also states that
after she had informed about the incident to petitioner No.1,
petitioner No.1 had told her that she should send the parents to
the house of petitioner No.1. Accordingly, she had passed on the
information to the informant. What happened in the house of
informant, has been stated by the informant herself in the FIR as
well as by her husband in his statement under Section 161 of the
Code of Criminal Procedure and by those relatives who were
with the informant. Now the statements of witnesses have been
recorded belatedly and even it is then stated that petitioner No.2
had told the husband that the main accused would be handed
over to him to whom they can assault, and who would be
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removed from the school and the next option available to them
is to go to the police, in which the school as well as the girl
would be defamed. Petitioner No.1 told that there would be news
items in the newspaper and they have not deleted the CCTV
footage like the case in Badlapur. Then they say that the present
petitioners had tried to restrain them from lodging the FIR. Even
if we take these statements as it is, yet it is very much clear that
there was no suppression of facts and there was no intention
that the informant should not lodge the FIR. Immediately after
the said meeting, the informant and others had gone to the
police station to lodge the FIR. Therefore, it would be an abuse
of process of law if the petitioners are asked to face the trial.
7. Per contra, the learned APP as well as learned Advocate for
respondent No.2 strongly opposed the Petition and submitted
that the fact was informed to petitioner No.1 in the evening itself
through the said Kalal madam and in spite of it, no action was
taken till 14.15 Hours of the next day. Rather, in a way, threat
was tried to be given that the girl and her family members would
be defamed, so also the school would be blamed. The
statements of witnesses under Section 161 and 164 of the Code
of Criminal Procedure supports the prosecution story. The
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explanation if at all the petitioners are having for not taking the
action or reporting the fact to the police over night, can be given
by them only during the trial and therefore, when now the
investigation is also over, the petitioners should face the trial.
8. The entire incident and the prosecution story as stated in
the FIR has been narrated earlier and therefore, we do not want
to repeat the same. Taking into consideration the FIR as well as
the charge-sheet, the prosecution intends to bring the case for
the offence punishable under Section 21 of the POCSO Act
against the present petitioners. Section 21 of the POCSO Act
provides for punishment for failure to report or record the case.
Sub-section (2) provides that 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 punished. Now, it is the
prosecution story that the sweeper from the school has done the
acts which are punishable under the POCSO Act and it was made
known to both the petitioners.
9. Certainly, from the FIR as well as the statement of girl, it
can be seen that around 5.30 p.m., on 27 th August 2024, the girl
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had informed the incident to her mother and then immediately
the informant had gone to the house of Kalal madam. Kalal
madam in her statement under Section 161 of the Code of
Criminal Procedure, supports this fact that around 6.00 p.m.,
when she was returning home from the school, informant
stopped her in front of her house and when they were standing
on the road, the information was passed on by the informant to
her. Kalal madam had asked the girl as to who is her class
teacher and she gave the name of Mali sir and therefore, Kalal
madam had given call to Mali sir and informed him about the
incident. There was some mistake in communicating the first
name of the girl and therefore, Kalal madam had sent her son
for confirmation of the name of the girl. Then Mali sir was
contacted once again but he told that he is in hospital and he
would inform petitioner No.1 about the incident. Thereupon
again there were telephonic calls and petitioner No.1 had asked
the parents to meet her in her house. Now, in the FIR the
informant is silent in saying that she was tried to be restrained
by the petitioners from lodging the FIR. But she was certain that
on the say of the petitioners the message was given that the
CCTV footage would be made available to the parents. It was
accordingly checked. We are of the opinion that unless the
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school authority would have ensured the element of truth in the
allegations, there cannot be duty on the school authorities to
lodge the report. The girl has not stated that when she was in
the school throughout the day, she had tried to inform the fact to
her class teacher or any other teacher. Everything started only
after the girl informed the said fact to the mother in the evening.
We are also aware of the fact that the girls would be more
comfortable in sharing their feelings firstly to the mother. Then
there might be possibility, in certain cases, that they would share
it with their friends and certain girls are bold enough in
immediately disclosing it to the teachers. However, it may then
require the maturity and understanding. Merely because the fact
was not immediately informed, we cannot jump to the conclusion
that there is intentional failure on the part of the school
authorities which can be termed as an offence. The subsequent
conduct, after receipt of the information, is also required to be
considered. The CCTV footage is made available to the parents.
The clip of the same has also been seized in the matter and as
per the panchnama, what could be seen is that the sweeper was
talking with the girl. Now, what was shown to the girl appears to
have not been captured by the CCTV. Of course, the dialogues
are also not captured.
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10. Now, it is tried to be contended on behalf of the
prosecution, especially, that in the house of petitioner No.1 the
informant, her husband and others were told that if they go for
lodging of the FIR, then it may defame them and also the school.
But it cannot be taken as a threat because the further statement
is also important, when petitioner No.1 is stated to have said
that they have not deleted the CCTV footage and they have no
intention to delete the same. The words those have been used in
their statements by the husband and other relatives who were
present in the house of petitioner No.1, are :-
".......... ckcr fizaUlhiy eWMe o MkW- ;ksxs'k nslkbZ cksyys-
vkEgh R;kaps dkgh ,d u ,sdqu ?ksrk fizalhiy eWMe ;kaps ?k#u
uanqjckj 'kgj iksyhl Bk.ks ;sFks ;smu------"
. The translation of the same is as under:-
"Principal Madam and Dr. Yogesh Desai stated about the
same. We have not at all listened to them and from the house
of Principal Madam, came to Nandurbar Police Station..........."
11. It was one of the opinion or point that was put before the
informant and the relatives by the petitioners, but they
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themselves say that they had not listened to what was told by
the petitioners to them. It is the further statement of the
husband and the relatives of the informant that in spite of having
knowledge about the incident around 8.00 p.m., on 27 th August
2024, the seriousness of the offence was not considered by the
petitioners and they had not reported the incident to the police.
Thus, now the informant's husband and other relatives want to
blame the petitioners. As earlier stated, this statement is not
made by the informant in her FIR. This statement would then be
applicable to the informant, her husband also. In spite of having
knowledge of the incident, why they had not immediately gone
to lodge the report to the police, would be a question and
therefore, every failure to report the incident will not attract the
criminal liability. The intention is important. When as per the FIR
while leaving the house of petitioner No.1, informant and others
had told that they would lodge the FIR, it appears that the
petitioners have then not taken any action.
12. We know the limitations in the provisions under Section
482 of the Code of Criminal Procedure. However, we would like
to rely on the recent decision of the Hon'ble Supreme Court in
B.V. Ram Kumar vs. State of Telangana and another, 2025 INSC
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194, wherein it has been held that when the charge-sheet is
filed, High Court should consider the entire material in the
charge-sheet.
13. Therefore, taking into consideration the entire material in
the charge-sheet including the FIR, we are of the opinion that it
would be an abuse of process of law if the petitioners are asked
to face the trial. The case is made out to exercise the powers of
this Court under Section 482 of the Code of Criminal Procedure
in view of the guidelines given in the decision in State of
Haryana vs. Bhajan Lal and others, AIR 1992 SC 604 . Hence the
following order:-
ORDER
(I) The Writ Petition stands allowed.
(II) The proceedings in Special Case No.33
of 2024 pending before the learned Special
Judge under the POCSO Act, Nandurbar, for
the offence punishable under Sections 11(3),
12, 16, 17 and 21(2) of the Protection of
Children from Sexual Offences Act, 2012,
Section 75(1)(iii) of Bharatiya Nyaya Sanhita,
2023 and Section 67-A of the Information
Technology Act, arising out of the First
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Information Report vide Crime No. 542 of
2024, dated 28th August 2024, registered with
Nandurbar City Police Station, Nandurbar,
stands quashed and set aside as against
petitioner No.1 - Mrs. Sushama @ Sushma
Manish Shah and petitioner No.2 - Dr. Yogesh
Pramodshankar Desai.
(III) Rule is made absolute in above terms.
[SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/APR25
