Non-Obstante Clause In S. 19 POCSO Act Not Inconsistent With Subject Matter Of S. 197 CrPC (S. 218 BNSS); Doesn’t Exclude Its Applicability: Kerala HC
The Kerala High Court held that the non-obstante clause in Section 19 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is not inconsistent with the subject matter of Section 197 of the Criminal Procedure Code (CrPC) or Section 218 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and does not exclude the applicability of the same.
The Court held thus in a Criminal Miscellaneous Case filed by the former Chairman of the Child Welfare Committee (CWC), Thrissur, seeking quashing of the proceedings against him in a POCSO case.
A Single Bench of Justice K. Babu observed, “Applying the lex posteriori rule, it is manifest that the parliament has consciously did not include the offence under Section 19 read with Section 21 of the POCSO Act as an exception to Section 197 of the Cr.PC or under Section 218 of the BNSS. … The resultant conclusion is that the non-obstante clause in Section 19 of the POCSO Act is not inconsistent with the subject matter of Section 197 of the Cr.PC or Section 218 of the BNSS and does not exclude the applicability of Section 197 of the Cr.PC or Section 218 of the BNSS.”
The Bench also clarified that Section 19 of the POCSO Act casts a mandate on any person to report the commission of an offence and such mandate to report does not relate to his official character.
Advocate V. John Sebastian Ralph represented the Petitioner while Public Prosecutor G. Sudheer and Amicus Curiae M.K. Sreejesh represented the Respondents.
Brief Facts -
The Petitioner being the former Chairman of CWC, Thrissur, functioned as such for a period from 2009 to 2019. He was arrayed as an accused in a case involving the offences punishable under Sections 450, 354(A), 376(2)(l), 376(2)(i), and 506 of the Indian Penal Code (IPC) and Sections 4, 3(b), 6, 5(k), 12 read with Section 11 (iii) and Section 21 of the POCSO Act. He was arrayed as accused, alleging the offence under Section 21 read with Section 19(1) of the POCSO Act for non-reporting of the matter to the police.
The incident came to light after many years while the victim was sexually abused by an auto driver for which a crime was registered. In that crime, the provisions of the POCSO Act were not included as the victim had attained 19 years on the date of the second crime. The allegation against the Petitioner was that he had not reported the incident to the police, when it was informed to him in 2014.
The High Court in view of the above facts, noted, “The principle of the subject matter test and the particular perspective test makes it clear that the operation of the non-obstante clause in Section 19 of the POCSO Act is restricted to the overlapping subject matters prescribed in the Code of Criminal Procedure or in the BNSS. Section 42A of the POCSO Act has restricted the operation of the non-obstante clause to the subject matters over which the special law shall have an overriding effect on the general law.”
The Court added that Section 197 of the Cr.PC and Section 218 of the BNSS are intended to operate as a safeguard against public servants from being dragged into vexatious proceedings for having discharged their official duties.
“The legislature appears to have perceived that the defence of having committed the offences in the course of discharge of duty is not available in most of the offences under the POCSO Act. Such defences are available only in cases of physical examination by medical practitioners, physical education teachers, etc. In those cases, it is possible for the court to adjudicate the applicability of the safeguard extended by Section 197 of the Cr.PC after considering the facts”, it said.
The Court further crystallised the following principles from some precedents –
(a) The application of Section 197 of the Cr.PC or Section 218 of the BNSS varies from facts to facts.
(b) The act or omission must have a reasonable connection with the discharge of official duty.
(c) It should come within the scope of his official duty.
(d) Section 197 of the Cr.PC does not apply to acts done purely in a private capacity by a public servant.
(e) The protection of Section 197 of the Cr.PC applies even if the act/omission is committed in excess of his official duty.
“The mandate to report contained in Section 19 of the POCSO Act is to be performed in his private capacity. … The materials relied on by the petitioner overrule the veracity of the allegations against him in the final report. The prosecution failed to place any material to refute those materials relied on by the petitioner. Therefore, the proceedings initiated against him would result in the abuse of the process of the Court and would not serve the ends of justice”, it remarked.
The Court also observed that provisions and guidelines manifest that the interest of the victim of sexual offences are to be taken care of by the judiciary, executive and all organs of the State and it is painful to note that the police in this case failed to protect the paramount interest of the victim in this regard.
“The State Police Chief is directed to see that the mandate of the POCSO Act that the identity of the victim is not revealed is scrupulously followed by the members of the police force”, it directed.
The Court, therefore, concluded that the safeguard under sub-section (5) of Section 19 of the POCSO Act is applicable to the child who is reporting the commission of an offence/apprehension of the commission of an offence.
Accordingly, the High Court disposed of the Criminal Miscellaneous Case and quashed the proceedings against the accused.
Cause Title- George P.O. v. State of Kerala & Anr. (Neutral Citation: 2024:KER:96686)
Appearance:
Petitioner: Advocates V. John Sebastian Ralph, Vishnu Chandran, Ralph Reti John, Appu Babu, Shifna Muhammed Shukkur, Mamatha S. Anilkumar, and Anila T. Thomas.
Respondents: Public Prosecutor G. Sudheer and Amicus Curiae M.K. Sreejesh.
