The High Court quashed proceedings against an accused due to lack of prima facie evidence connecting him to the failure to report a sexual offence, as required under the PoCSO Act.

ORDER :

1. Third accused in S.C.No.247/2022 on the files of the Sessions Court, Kasaragod, has filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’ hereinafter), seeking quashment of the proceedings against him.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused prosecution records including the FSL report pertaining to the mobile phone of the victim.

3. In this matter, the prosecution alleges commission of offences punishable under Sections 376D r/w 376DA, 202, and 377 of the INDIAN PENAL CODE , Sections 5g, 6(1), 11(iv) and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the PoCSO' Act, hereinafter) by the 1^st and 2^nd accused and under Section 19 (1) r/w 21(1) of the PoCSO Act, by the 3^rd accused. The allegation against the 3^rd accused/petitioner herein is that the minor victim in this crime, who was subjected to aggravated form of sexual assault by accused Nos.1 and 2, informed the same immediately through WhatsApp voice message to the 3^rd accused, who is the lover of victim’s sister. The 3^rd accused failed to inform the same to the police in tune with the mandate of Section 19 (1) of the PoCSO Act and therefore, registration of crime was delayed.

4. While seeking quashment of the proceedings as against the petitioner herein/3^rd accused, it is specifically pointed out by the learned counsel for the petitioner that no materials available in this case to see that the victim informed the occurrence to the 3^rd accused through WhatsApp voice message, as contended by the prosecution. In this regard, the learned counsel for the petitioner given much emphasis to the FSL report with negative finding in relation to the mobile phone of the victim, which was seized during investigation and sent for getting Cyber Forensic Analysis report.

5. The learned Public Prosecutor placed a report of the Investigating Officer and submitted that the mobile phone of the victim was seized by preparing mahazar, when the same was produced by her brother at 15.00 hrs. on 14.1.2022. Then, the same was forwarded to the RFSL, Kannur for getting report. It is also submitted that the mobile phone of the 3^rd accused could not be recovered, since he absconded after registering the crime. The crux of the allegation against the petitioner is non-information of the occurrence to the police even though he got information regarding the same based on the WhatsApp voice message allegedly forwarded by the victim, soon after the occurrence.

6. Indubitably, as per Section 19 (1) of the PoCSO Act, it is stated as under:

19. Reporting of offences.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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 —

(a) the Special Juvenile Police Unit; or (b) the local police.

As per Section 21 of the PoCSO Act, it is stated as under:

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 p