IMPORTANT POINT
The court established that while police officers have a duty to promptly register offenses under the POCSO Act, minor delays not caused by willful neglect do not attract penal consequences under the Act.

ORDER :

A. Badharudeen, J.

This petition has been filed challenging Annexure-A7 order whereby the Special Judge refused to implead the investigating officer, who conducted the investigation in this case and examined as PW12, as additional accused.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused Annexure-A7 order and the decision cited by the learned counsel for the petitioner in support of his contentions.

3. The learned counsel for the petitioner argued that going by the evidence given by PW1, the victim and PW2 her mother, both of them reached the police station on 18.08.2023 to give statement in relation to the occurrence. Similarly, PW12 the Investigating Officer during his cross examination also conceded that PWs 1 and 2 reached the police station at 9.30 p.m. on 18.08.2023. Accordingly, it is argued that when information regarding commission of a cognizable offence under the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') was informed or reported to PW12, he has a statutory duty to record the statement and to register a crime, immediately on receipt of the information or report in tune with the mandate of Section 19 (2) of the POCSO Act. Failure to do so, would definitely attract the offence punishable under Section 21 (1) of the Act. He also submitted that in so far as the right of an accused or a co-accused to file an application under Section 319 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') is concerned, the law is well settled and he has placed a decision of this Court in Vasudevan Nair V. State of Kerala [2005 (1) KLJ 265] where this Court held that; “the view taken by the learned Magistrate that the accused had no locus standi to file such a petition (S.319) is not correct. A reading of the provisions of Section 319 clearly shows that such a petition can be filed not only by the defacto complainant, but also a witness or even the accused. The power under Section 319 is an extraordinary power which is conferred on the Court. That power shall be exercised only if compelling reasons exist for taking cognizance against the person against whom action has not been taken. If after taking evidence the learned Magistrate finds that any other person other than the three accused now arraigned as accused is also to be tried along with the accused, it is open to him to pass appropriate orders under Section 319 (1) of Code of Criminal Procedure.”

4. Opposing the contention raised by the learned counsel for the petitioner, the learned Public Prosecutor submitted that it is true that PWs 1 and 2 had reached the Police Station on 18.08.2023 and informed about the occurrence. But PW1 and PW2 not disclosed the time of their arrival before PW12. According to PW12, PWs 1 and 2 reached at 9.30 p.m. on 18.08.2023 and they were sent back since there was no woman police officer to record the statement. It is submitted further that as per Section 24 of the POCSO Act, the statement of the child victim shall be recorded as far as practicable by a women police officer not below the rank of a Sub Inspector. Since PW12 felt that, it is the best interest of the victim, the statement would be recorded by a woman police officer, PW1 and PW2 were sent back in the night and immediately on the next day i.e. on 19.08.2023 at 11.30 a.m. the statement of the victim was recorded and crime was registered. It is also submitted that now the entire evidence of prosecution is closed and the matter stands posted for defence evidence.

5. The learned Public Prosecutor submitted further that even though Section 19 (2) of the POCSO Act makes it obligatory to a police officer to register a crime on getting knowledge regarding the commission of an offence under the POCSO Act and failure to record the statement and to register a crime as provided under Section 19 (2), would attract penal consequence under Section 21(1) of the POCSO Act, the said penal provision should