IMPORTANT POINT
Insufficient evidence to establish criminal liability under POCSO Act when both the accused and the witness had a duty to report, emphasizing the need for more than mere statements.

ORDER

The 2 ^nd accused in S.C.No.982/2023 on the files of Special Court for the trial of offences under the Protection of Children from Sexual Offences Act , Palakkad, has filed this Crl.M.C under Section 482 of the Code of Criminal Procedure seeking to quash all further proceedings against the petitioner in the above case.

2. Heard the learned counsel for the petitioner/2 ^nd accused and the learned Public Prosecutor in detail. Even though notice was served upon the 2 ^nd respondent/defacto complainant, she did not turn up.

3. In this case prosecution alleges commission of offences punishable under Sections 354A (1)(ii) and 506 (i) of the Indian Penal Code (` IPC ’ for short) and under Sections 8 r/w 7, 10 r/w 9(l), 9(n), 12 r/w 11(i) and 21 r/w 10 of Protection of Children from Sexual Offences Act (`POCSO Act’ for short), by the 1 ^st accused. The allegation against the 2 ^nd accused is that she has committed offence punishable under Section 21 r/w 19 of the POCSO Act since she failed to inform the police regarding the occurrence even though she got knowledge of the same on 11.10.2022.

4. The learned counsel for the petitioner vehemently argued to contend that the petitioner is innocent. According to him, even though CW2, the Psycho Socio Counsellor of GHSS, Koodalloor gave statement that, as on 11.10.2022, the victim in this case informed her through her WhatsApp number regarding sexual assault at the instance of his step father on 11.10.2022 and accordingly the same was reported to the Headmistress, who is the petitioner herein, no such report was collected by the investigating officer. Going by the statutory wordings under Section 19 of the POCSO Act, `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 as provided under Section 19(1)(a) of the POCSO Act. If so, CW2, who got information regarding commission of POCSO Act offences by the step father of the victim on 11.10.2022 should be bound to inform the same to the police independently and she need not file a report to the Headmistress and wait for intimation of the same by the Headmistress to the police. According to the learned counsel for the petitioner, in fact, CW2 (2 ^nd witness) should have been arrayed as an accused in this crime for non compliance of Section 19(1) of POCSO Act, but the police avoided CW2 from the array of accused. Instead, relying on the statement of CW2, who otherwise should have been arrayed as an accused, with the intention to save herself, the police found non compliance of Section 19(1) by the petitioner and the same is insufficient without any other supporting documents to fasten criminal culpability upon the petitioner. Therefore, all proceedings against the petitioner in S.C.No.982/2023 are liable to be quashed.

5. While opposing quashment it is submitted by the learned counsel for the Public Prosecutor that in this case crime was registered only on 15.06.2023 because of laches on the part of the petitioner to report the case to the police in time. It is argued by the learned Public Prosecutor that going by the statutory wordings of Section 19(1), CW2 also has a duty to inform the same to the police. However, the same doesn’t absolve the petitioner, who also got information regarding the occurrence on 11.10.2022 itself from penal consequences. Therefore, whether CW2 is arrayed as an accused or not, is irrelevant since non compliance of Section 19 of the POCSO Act at the option of the petitioner is, prima facie, made out. At the same time, the learned Public Prosecutor conceded that apart from the solitary statement of CW2, no other records or materials were collected during investigation