Karnataka High Court
Mr Rustom Kerawalla vs State Of Karnataka on 15 July, 2022
Bench: M.Nagaprasanna
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WP No. 12264 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO.12264 OF 2022 (GM-RES)
BETWEEN:
MR RUSTOM KERAWALLA
S/O PESI KERAWALLA
AGED ABOUT 55 YEARS
RESIDING AT: KERAWALLA CHAMBERS
4TH FLOOR 25 PJ
RAM CHANDHANI ROAD
MUMBAI - 400 602.
...PETITIONER
(BY SRI HASHMATH PASHA, SR. ADVOCATE FOR
SRI KARIAPPA N.A., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY VARTHUR POLICE STATION
BENGALURU - 560 087
Digitally signed
by (REPRESENTED BY
PADMAVATHI B
K LEARNED GOVERNMENT ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA 2. PIYUSH RANJAN
R/AT NO.2, 1ST FLOOR, 1ST CROSS
AYYAPPA LAYOUT, BEHIND KMF
MARTHAHALLI, BENGALURU - 560 037.
...RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP FOR R1;
SRI AIYAPPA K.G., ADVOCATE FOR R2)
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WP No. 12264 of 2022
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C., PRAYING TO QUASH THE ENTIRE
PROCEEDINGS IN SPL C.C.NO.257/2018 ON THE FILE OF THE
HONBLE ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC-
II BANGALORE RURAL DSITRICT BANGALORE WHICH IS
ARISING OUT OF CRIME NO.155/2014 OF VARTHUR POLICE
STATION BANGALORE FOR OFFENCES UNDER SECTION 202 OF
INDIAN PENAL CODE AND UNDER SECTION 19 READ WITH
SECTIONS 21(1) AND 2(2) OF POCSO ACT INCLUDING THE
ORDER OF COGNIZANCE AND ISSUE OF SUMMONS
DTD.8.4.2022 AS AN ABUSE OF PROCESS OF LAW.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.07.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioner, in this writ petition, calls in question order
dated 8-04-2022, by which cognizance is taken against the
petitioner for offences punishable under Section 202 of the IPC
and Section 19 r/w Section 21(1) & (2) of the Protection of
Children from Sexual Offences Act, 2012 ('the Act' for short).
2. Facts as projected by the prosecution are as follows:-
The petitioner is the Chairman of VIBGYOR schools all
over the nation and claims to be a resident of Mumbai. An
WP No. 12264 of 2022
incident of sexual assault of a minor child happened on 02-07-
2014 in the school run by the petitioner at Bangalore. The first
informant gets the child tested on 12-07-2014. The doctor on
examination of the child opined that the child might have been
sexually assaulted in the school and asks the parents to come
on 14-07-2014. On 14-07-2014 the parents call the child
helpline who visited the residence of the first informant and
advised them to lodge a police complaint. It is then the parents
registered a complaint regarding the happenings in the school
which alleged certain intolerable and reprehensible actions on
the part of accused Nos. 1 and 2. But, that is not the issue in
the case at hand.
3. The petitioner is arrayed as accused No.3. The
allegation against the petitioner is that he being the head of the
school has not reported the said incident that has happened 15
days ago to the Police and therefore, has violated Section 19 of
the Act and has become open for punishment under Section
21(1) and (2) of the Act read with Section 202 of the IPC. The
crux of the allegation against the petitioner revolves around the
said provisions. After registration of the crime, the learned
WP No. 12264 of 2022
Sessions Judge takes cognizance of the offences against all the
accused which came to be challenged before this Court by the
petitioner as he was arrayed as accused No.3 and cognizance
was taken against the petitioner also for the aforesaid offences.
4. This Court by its order dated 4-06-2019 in Criminal
Petition No.6918 of 2014 set aside the order taking cognizance
as it did not bear any semblance of application of mind and
remitted the matter back to the hands of the learned Sessions
Judge to proceed in the matter in accordance with law from the
stage of receiving the charge sheet and kept all contentions
open.
5. Pursuant to the order passed by this Court, the learned
Sessions Judge, again by a detailed order, takes cognizance of
the offences by his order dated 08-04-2022 and issued
summons upon the respondents to be returnable by
16-04-2022. Cognizance is taken against the petitioner for
offences punishable under Section 202 of the IPC and Section
19 r/w Section 21(1) and (2) of the Act. On receipt of
summons, the petitioner is again before this Court in the
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subject writ petition calling in question the very action of taking
cognizance, as all other contentions had been left open in the
earlier proceedings.
6. Heard learned senior counsel Mr. Hashmath Pasha
appearing for the petitioner, Sri K.S.Abhijith, learned High
Court Government Pleader for respondent No.1 and Sri
K.G.Aiyappa, learned counsel appearing for the respondent
No.2.
7. The learned senior counsel would submit that action
under Section 21(1) & (2) of the Act can be initiated only after
main offenders would be held guilty of the offence. It is a
premature action against the petitioner. His second submission
is that the incident happened on 02-07-2014 and the school
itself comes to know of the incident on 14-07-2014, by then
FIR had been registered. The petitioner gets to know the
protest of the parents in front of the school who had demanded
his presence on 16-07-2014 and it is then the petitioner arrives
and is arrested for non-compliance of Section 19 of the Act for
non-reporting of such heinous offence. He would submit that
WP No. 12264 of 2022
by the time he came down to Bangalore, FIR had already been
registered. Therefore, it being a public document, there was no
information that the petitioner could have given to the police on
that and would submit that the entire proceedings are an abuse
of the process of law and, therefore, should be obliterated.
8. The learned counsel Sri K.G.Aiyappa appearing for the
2nd respondent would take this Court through the documents to
contend that on 5th and 8th of July, 2014 there were repeated
calls from the school enquiring about the health of the victim. If
they did not know anything about the happening in the school
there was no occasion for them to repeatedly call and enquire
about the health of the child. Therefore, they tried to cover up
the issue by being courteous to the parents and the child.
Finally, it is not the school that registers the complaint but it is
on the suggestion of child helpline the parents have registered
a complaint. He would submit that it is a matter of trial for the
petitioner to come out clean and there is no warrant to
interfere at this stage of the proceedings.
WP No. 12264 of 2022
9. The learned High Court Government Pleader would toe
the lines of the submissions of the 2nd respondent and submits
that the offence need not wait for accused Nos. 1 and 2 to be
punished as trial against all has to go on simultaneously and it
is a matter of evidence as to whether petitioner has violated
Section 19 of the Act or otherwise.
10. I have given my anxious consideration to the
submissions made by the learned senior counsel and the other
learned counsel and perused the material on record. In
furtherance whereof, the following issues fall for my
consideration:
1. Whether the crime registered and further
proceedings taken up thereto against the
petitioner are premature for they had to
wait conviction of accused 1 and 2?
2. Whether the petitioner is guilty of violation
of Section 19 and whereby amenable to
offences punishable under Section 21 of the
Act?
Issue No.1: Whether the crime registered and further
proceedings taken up thereto against the petitioner are
premature for they had to wait conviction of accused 1 and 2?
WP No. 12264 of 2022
11. The contention of the learned senior counsel is that
the very registration of crime against the petitioner is
premature as, if the petitioner has to be hauled into the
proceedings, at the outset accused 1 and 2 who are alleged of
commission of crime should get convicted and it is only then
proceedings can be initiated against the petitioner and if they
are acquitted, the crime cannot even be registered against the
petitioner. To buttress his submission, the learned senior
counsel places reliance upon a judgment rendered by the
Chhattisgarh High Court in KAMAL PRASAD PATADE v.
STATE OF CHHATTISGARH AND OTHERS1 with particular
reference to paragraphs 16, 17 and 29, which read as under:
"16. At this stage, it would be appropriate to
mention that charge sheet against the petitioner and co-
accused Indrajeet Thakur was filed consolidatedly and
simultaneously by the jurisdictional police in the criminal
court for trying to-accused Indrajeet Thakur for the
principal offences under Sections 377, 506, Part-II, 511
of the IPC and Sections 4 and 6 of the POCSO Act and to
the petitioner under Section 21(2) of the POCSO Act
together for trying them jointly.
2016 Crl.L.J. 3759
WP No. 12264 of 2022
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 and
5 of the POCSO Act which is punishable under Sections 4
and 6 of the POCSO Act respectively with grandson of
respondent No.2 on 20-08-2015 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 and 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 the jurisdictional
criminal Court that an offence under Sections 4 and 6 of
the POCSO Act has been committee by an accused
person and once finding is recorded by jurisdictional
criminal Court convicting the accused therein for
offences under Sections 4 and 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.
... ... ....
29. Thus, on the basis of aforesaid discussion, it
is held that the prosecution of the petitioner for non-
reporting the commission of offence by co-accused
Indrajeet Thakur under Sections 4 and 6 of the POCSO
Act offence under Section 21(2) of the POCSO Act is
unsustainable in law as the prosecution of co-accused
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WP No. 12264 of 2022
Indrajeet Thakur for the principal offences is still
pending consideration and it has not been established
beyond doubt that co-accused Indrajeet Thakur has
committed the offence under Sections 4 and 6 of the
POCSO Act and other related offences under the
provisions of the IPC and therefore, unless the
commission of the principal offences by the main
accused for offences under the POCSO Act is
established, question of Prosecution of the petitioner for
non-compliance of Section 19(1) that he has knowledge
of commission of offence would not arise. The
information as to the commission of offence has already
reached to the jurisdictional police and after registration
of the offence under the POCSO Act and IPC, crime has
been investigated and offender has been charge-
sheeted, thereafter, prosecution of the petitioner for
offence under Section 21(2) of the POCSO Act is
unsustainable in law."
In the considered view of this Court, both, the submissions of
the learned senior counsel, and the reliance placed on the
judgment of Chhattisgarh High Court, are unacceptable, in view
of the clear mandate of the statute. Sections 19 and 21 of the
Act read as follows:
"19. Reporting of offences.--(1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of1974)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,--
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WP No. 12264 of 2022
(a) the Special Juvenile Police Unit; or
(b) the local police.
(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.
(3) Where the report under sub-section (1) is
given by a child, the same shall be recorded under sub-
section (2) in a simple language so that the child
understands contents being recorded.
(4) In case contents are being recorded in the
language not understood by the child or wherever it is
deemed necessary, a translator or an interpreter, having
such qualifications, experience and on payment of such
fees as may be prescribed, shall be provided to the child
if he fails to understand the same.
(5) Where the Special Juvenile Police Unit or local
police is satisfied that the child against whom an offence
has been committed is in need of care and protection,
then, it shall, after recording the reasons in writing,
make immediate arrangement to give him such care and
protection including admitting the child into shelter
home or to the nearest hospital within twenty-four hours
of the report, as may be prescribed.
(6) The Special Juvenile Police Unit or local police
shall, without unnecessary delay but within a period of
twenty-four hours, report the matter to the Child
Welfare Committee and the Special Court or where no
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WP No. 12264 of 2022
Special Court has been designated, to the Court of
Session, including need of the child for care and
protection and steps taken in this regard.
(7) No person shall incur any liability, whether
civil or criminal, for giving the information in good faith
for the purpose of sub-section (1)."
... ... ...
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.
(3) The provisions of sub-section (1) shall not
apply to a child under this Act."
(Emphasis supplied)
What drove the Legislature for promulgation of the Act
including the subject Sections, is found in the objects and
reasons for enactment of the Act and they are germane to be
noticed. The objects and reasons for enacting the Act read as
under:
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WP No. 12264 of 2022
"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 Nationals 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 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 not are they adequately penalized.
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 though commensurate
penalties as an effective deterrence.
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WP No. 12264 of 2022
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 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."
(Emphasis supplied)
Therefore, the rigor of the Act was to make it mandatory.
Legislature found it fit to incorporate Section 19 which castes a
duty upon every person who has either apprehension or
knowledge that an offence under the Act has been committed
to report to the authorities found under Section 19 of the Act,
failing which, it would amount to punishment under Section 21
of the Act.
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WP No. 12264 of 2022
12. If the submission of the learned senior counsel is
tested on the anvil of the rigour of the Act that one has to wait
till the principal offenders would be convicted of the offences
punishable under the Act, a person who fails to report such
offence would be let scot-free. This would defeat the very
purpose of the enactment. The High Court of Bombay in the
case of BALASAHEB v. THE STATE OF MAHARASHTRA2
considers the judgment of Chhattisgarh High Court and holds it
to be unacceptable. The quote of the learned Judge is as
follows:
"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."
(Emphasis supplied)
2017 ALLMR(Cri) 2307
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WP No. 12264 of 2022
In the light of both the judgments having only persuasive value
upon this Court, I deem it appropriate to follow the later
judgment rendered by the Bombay High Court in the case of
BALASAHEB (supra), which considers the judgment of the
Chhattisgarh High Court relied on by the learned senior
counsel, as the judgment clearly brings out mandatoriness of
the provisions of the Act. Therefore, I respectfully disagree
with the Chhattisgarh High Court and agree with the reasons
rendered by the Bombay High Court. If conviction to the
principal offenders had to wait the allegation of non-reporting
of offence at the initial stage, notwithstanding such non-
reporting becoming punishable would take away the soul of the
provision of law itself. Therefore, the first issue that has arisen
for consideration is answered against the petitioner holding that
one need not wait for the conviction of the principal offender/s,
for one to be tried for the offence that is punishable under
Section 21 of the Act for violation of Section 19 of the Act.
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WP No. 12264 of 2022
Issue No.2: Whether the petitioner is guilty of violation of
Section 19 and whereby amenable to offences punishable under
Section 21 of the Act?
13. Since knowledge is the soul of Section 19 of the Act,
it is germane to notice the facts obtaining in the case at hand.
The facts narrated hereinabove are not in dispute. Sexual
assault on child happens on 02-07-2014. The child complained
abdominal pain which led the parents taking the child to a
hospital on 05-07-2014. Between 05-07-2014 and 09-07-2014
there were repeated calls from the school is also narrated in
the complaint and on 12.07.2014 the mother of the child gets
her tested and come to know that she has been sexually
assaulted in the school. It is later the police recorded the
statement of the first informant, goes to the school and comes
to know that the child was made to sit in a dark room where
she was subjected to sexual harassment by the staff of the
school and on that basis registers a FIR against all the accused
in Crime No.155 of 2014 for offences punishable under Section
376 of the IPC and Sections 4 and 6 of the Act. This was the
initial FIR that was registered where the name of the petitioner
did not figure.
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WP No. 12264 of 2022
14. A protest happens by the parents of the students, in
the school in front of the school premises with regard to
security concerns of their wards. It is at that point in time, the
petitioner claims to have come to know of the happenings in
the school and registration of crime in Bangalore. There is no
other document collected by the prosecution during
investigation that would observe otherwise and demonstrate
that the petitioner was aware of the happenings.
15. The crux of the issue would be whether, the
petitioner with all knowledge, has failed to report to the police
or to any other authority under Section 19 of the Act of the
happening in the school to which dates and events become
imperative. The incident happened on 02-07-2014. This is not
in dispute and the child remained absent from the school later.
The school authorities did call the parents of the child on 5th
and 8th July 2014 to enquire about the health of the child. On
the 08-07-2014 the child attends the school and claims to be
fine and again reacts to the mental trauma that she underwent
at home, which leads to the child being examined by the
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WP No. 12264 of 2022
doctor on 12-07-2014 and on the intervention of child helpline
the parents registered the complaint against the accused.
16. Accused Nos.1 and 2 who are now on trial have been
alleged of heinous offence. That is not the offence against the
petitioner. Non-reporting of the said offence is the offence
alleged against the petitioner. The petitioner was at Mumbai at
the time when the incident happened is again not in dispute.
After registration of FIR it appears that the parents of the
wards staged a protest in front of the school, which was subject
matter of reporting in all kinds of media after which, the
petitioner came back from Mumbai on the 16-07-2014 met the
protesting parents and instructed the teaching staff of the
administration not to straight away inform anything to the
police without verifying the facts. On 20-07-2014 one
Mohammed Mustafa was arrested being a suspect of having
committed the offence. On 21-07-2014 statement of CW-7
N.Basavaraj was recorded. It is the statement of N.Basavaraj
that he is the Administrator of the school and he was not aware
of what has happened in the school until FIR is registered and
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WP No. 12264 of 2022
the police complaint on 14-07-2014. The statement of CW-7
that is germane reads as follows:
"¥ÉÆõÀPÀgÉÆA¢UÉ ZÀZÉð ªÀiÁrzÀ £ÀAvÀgÀ gÀĸÀÄÛªÀiï PÉgÁªÁ¯ÁgÀªÀgÀÄ £À£ÀߣÀÄß
¥ÀævÉåÃPÀªÁV PÀgÉzÀÄ F WÀl£ÉAiÀÄ §UÉÎ ¥Àæ²ß¹zÀÄÝ EzÀPÉÌ £Á£ÀÄ F WÀl£ÉAiÀÄÄ £ÀªÀÄä
±Á¯ÉAiÀÄ°è £ÀqÉ¢gÀĪÀ §UÉÎ AiÀiÁªÀÅzÉà ªÀiÁ»w E®èªÉAzÀÄ w½¹zÀÄÝ CzÀPÉÌ CªÀgÀÄ F
WÀl£ÉAiÀÄÄ ±Á¯ÉAiÀÄ°è £ÀqÉ¢zÉAiÉÆà E®èªÉÇà UÉÆwÛ®è DzÀgÉ MAzÀÄ ªÉÃ¼É WÀl£É
£ÀqÉ¢zÀÝgÉ ±Á¯ÉAiÀÄ°è PÉ®¸À ªÀiÁqÀĪÀ ²PÀëPÀgÁUÀ°, DqÀ½vÀ ¹§âA¢AiÀĪÀgÁUÀ°, ±Á¯ÉUÉ
¸ÀA§A¢ü¹zÀ AiÀiÁªÀÅzÉà ªÀåQÛ F §UÉÎ ¥ÉÆð¸ÀjUÉ ªÀiÁ»w ¤ÃqÀ¨ÁgÀzÀÄ JAzÀÄ w½¹
ºÉÆÃVzÀÝgÀÄ."
The said statement in the first blush would seek to
indicate that the petitioner informed not to inform anything to
the police, but the fact of FIR already registered cannot be
brushed aside. Since FIR had already been registered on 14-
07-2014 at 4.00 p.m. the further information to the police or
any other authority cannot be held against the petitioner, as
FIR being a public document and it having been registered on
14-07-2014 itself and the school being the sole accused, as
there was no other accused indicated on 14-07-2014 except
the school.
17. Therefore, non-reporting of the offence by the
petitioner who is the Chairman of the institution at Mumbai, in
the considered view of this Court, cannot be alleged, as the
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WP No. 12264 of 2022
incident had already been reported and such documents are
placed on record which would demonstrate that the petitioner
was not aware and it was CW-7 who was the Administrator and
the petitioner lands in Bangalore on 16-07-2014 when the
parents of the wards protested demanding presence of the
petitioner. If this is the only offence against the petitioner, the
facts as are narrated hereinabove would not make out the said
offence, as non-reporting of the offence later, cannot become
an offence by itself.
18. The only ground on which the petitioner has not
informed the police of the happening at the school on that day
is that it had already become a public document by registration
of FIR and in such teeth, permitting further proceedings to
continue against the petitioner would become an abuse of the
process of law and result in miscarriage of justice in the
peculiar facts of this case.
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19. For the aforesaid reasons, I make the following:
ORDER
(i) Writ Petition is allowed.
(ii) Impugned proceedings in Spl.C.C.No.257 of 2018
pending before the Additional District and Sessions
Judge FTSC-II, Bangalore Rural District, Bengaluru
stand quashed qua the petitioner.
Sd/-
JUDGE
bkp
CT:MJ
