No prior sanction needed to prosecute public servant for not reporting POCSO offence: Kerala High Court

The Kerala High Court recently held that no prior sanction is needed to prosecute a public servant for not reporting the occurrence of offences under the Protection of Children from Sexual Offences Act (POCSO Act). [George PO v. State of Kerala & Anr].Justice K Babu said that the mandate cast by Section 19 of the POCSO Act to report such offences applies to all persons in their private capacity. As such, the requirement of prior sanction to prosecute public servants under the provisions of Section 197 of the Code of Criminal Procedure (CrPC) and the corresponding Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), do not apply for prosecuting non-reporting of POCSO offences. "Section 19 of the POCSO Act casts a mandate on any person to report the commission of an offence. The mandate to report does not relate to his official character. The mandate to report contained in Section 19 of the POCSO Act is to be performed in his private capacity," the Court said. .The judgment was passed on a petition moved by a former Chairman of the Child Welfare Committee (CWC), Thrissur to quash the criminal proceedings that were initiated against him under Section 21 read with Section 19(1) of the POCSO Act for not reporting a case of sexual assault of a minor. He contended that he had duly informed the police of the incident via a telephone call the day after the CWC got information about it. He also argued that since he was a public servant, he could not be prosecuted without prior sanction from the government under Section 197 of the CrPC. .The Court, on going through the provisions of the CrPC and BNS, noted that Sections 197 and 218 of the two statutes respectively were intended to operate as a safeguard against public servants from being dragged into vexatious proceedings for having discharged their official duties. However, 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, the Court 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.".In the present case, the Court noted from the material on record that the petitioner had reported the matter to the police within a day. Therefore, the Court quashed the proceedings initiated against him..Before parting with the case, the Court deprecated the police for revealing the identity of the minor victim in the final report in violation of several legal provisions that make it mandatory to protect the identity of such victims."It is painful to note that the police in the present 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," the Court said. .The petitioner was represented by Advocates V John Sebastian Ralph, Vishnu Chandran, Ralph Reti John, Appu Babu, Shifna Muhammed Shukkur, Mamatha S Anilkumar and Anila T Thomas. Public Prosecutor G Sudheer appeared for the State.Advocate MK Sreegesh assisted the Court as amicus curiae..[Read Judgment]