The court ruled that the obligation to report under the POCSO Act applies regardless of the accused's official capacity, and no sanction is needed for prosecution if the act is distinct from official duties.

ORDER :

This Revision Petition has been filed under Sections 438 r/w 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (` BNSS ’ for short), challenging the order in Crl.M.P No.72/2023 in S.C.287/2022 on the files of Special Court under the Protection of Children from Sexual Offences (POCSO) Act cases, Chavakkad. The revision petitioner is the 2^nd accused in the above case.

2. Heard the learned counsel for the revision petitioner/2^nd accused and the learned Public Prosecutor in detail. Perused the order impugned and the case diary as such placed by the learned Public Prosecutor along with decisions placed by the learned counsel for the revision petitioner.

3. Prosecution allegation herein is that on 02.10.2020 and 19.10.2020 a child in conflict with law in this crime committed aggravated penetrative sexual assault on the first witness, a female child, aged 13 years, and accordingly she became pregnant. The allegation against accused 1, 3 and 4 is that despite having knowledge regarding aggravated penetrative sexual assault against the minor victim, which would attract POCSO Act offences, they failed to inform the same to the police and also with a view to cause disappearance of evidence regarding commission of the offence, they jointly carried miscarriage and thereby accused 1, 3 and 4 committed offences punishable under Sections 312, 313, 315 and 201 of the Indian Penal Code (`IPC’ for short) and under Section 19 (1) r/w 21(1) of the POCSO Act. The allegation against the 2^nd accused/revision petitioner herein is that he also had occasion to treat the victim on 25.11.2020 and 02.12.2020 and thereby the pregnancy of the minor victim and involvement of POCSO Act offence are made known to the revision petitioner on 25.11.2020 itself. But he failed to inform the occurrence to the police and thereby committed offence punishable under Section 21 (1) r/w 19(1) of the POCSO Act.

4. After taking cognizance for the said offence against the 2^nd accused/the revision petitioner, on his appearance, the revision petitioner filed an application under Section 227 of the Criminal Procedure Code (`Cr.P.C’ for short hereafter) seeking discharge raising plea of absolute innocence and the learned Special Judge dismissed the same holding that the prosecution materials would justify commission of offence under Section 19 (1) r/w 21(1) of the POCSO Act by the revision petitioner so as to frame charge for the said offence and to try him.

5. Impeaching the said order, the present Criminal Revision Petition has been filed. As on 12.09.2024, this Court admitted this Revision Petition to hear a legal question argued by the learned counsel for the revision petitioner. The legal question posed is; whether when offences under the POCSO Act are alleged to be committed by an accused, who is a Government servant, sanction required under Section 197 of Cr.P.C is necessary or not to prosecute him?

6. The learned counsel for the revision petitioner argued to substantiate necessity of sanction under Section 197 of Cr.P.C on one end and attempted to establish otherwise that the petitioner is innocent and, therefore, he is otherwise entitled for discharge.

7. Whereas it is submitted by the learned Public Prosecutor that in the instant case, as per the case records and in the FIS given by the victim, it has been stated that the victim after having sexual intercourse with the child in conflict with law, became pregnant and thereafter she was treated by a Homoeo doctor, who is one among the accused, with a view to abort the pregnancy and the said statement of the victim is supported by the statement given by her mother, who stated that on 10.11.2020 when she noticed vomiting by the victim, the victim and her child met Dr.Ranjit at Taluk Hospital and t