SREELATHA Vs. STATE OF KERALA

JUDGEMENT

(1.) The above five Criminal Miscellaneous Cases, viz., Crl.M.C. Nos. 309, 5010, 5013, 5078 and 5080 of 2019 arise out of Crime Nos. 159/2014, 162/2014, 161/2014, 160/2014 and 166/2014 registered at Peringone Police Station and now the said criminal proceedings are pending as sessions case S.C. Nos. 87/2015, 90/2015, 89/2015, 88/2015 and 91/2015 on the file of the Special Court (Addl. Sessions Court notified to deal with POCSO Cases), Thalassery, Kannur district. Accused No. 1 in all the above five cases is a teacher of the ALP School, Perinthatta North (an aided school) and the allegation against him that he has committed sexual assault on various occasions from June, 2013 to January, 2014, on each of the five minor victim girls concerned in these cases, who are the students of the said school and A-1 has committed offences as per S. 9(f)(1)(m) read with 10 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The petitioner herein, who is the headmistress of the abovesaid school, has been arrayed as accused No. 2 in each of these five cases and the allegation against her is that, though as the headmistress of the school, she had knowledge about the commission of the abovesaid offences by A-1, who is a teacher in the above school, the petitioner (A-2) has not reported the commission of the said offence to the Police authorities concerned as mandated in S. 19(1) of the POCSO Act and therefore, she has committed offence punishable under S. 21(2) of the said Act. Accused No. 3 in this case is said to be the person in charge of the help desk, who failed to report the commission of the abovesaid offence by A-1 to the authorities and has thereby committed the abovesaid offence punishable under S. 21(2) of the Act. Accused No. 1 and accused No. 3 in the above crimes are not parties in these cases. The State of Kerala has been arrayed as the sole respondent in the above Criminal Miscellaneous Cases filed under S. 482 of the Code of Criminal Procedure seeking for quashment of the impugned criminal proceedings to the limited extent it is directed as against the petitioner herein (A-2). After the registration of the crime in each of these cases, the Police has filed separate final reports/charge sheets in each of these five cases, which has led to the pendency of the abovesaid Sessions Cases before the special sessions court notified to deal with the POCSO cases, Thalassery. It is the case of the petitioner that the abovesaid criminal proceedings to the extent it is directed as against the petitioner herein (A-2) is not sustainable in law and that the prosecution has no case that the petitioner had witnessed the alleged act of sexual assault said to have been committed by A-1 and further that the petitioner has no knowledge about the commission of the offence, etc.

(2.) The petitioner would point out that, even going by the admitted case of the prosecution, the only allegation raised as against the petitioner herein is that, she, as the headmistress of the school, has not reported about the commission of the abovesaid offences in each of these cases and that the prosecution has no case that the petitioner has done any act or omission so as to be directly or indirectly connected with the commission of the principal offence of sexual assault by the principal offender (A-1) and that the only allegation is that the petitioner has committed the secondary offence of not reporting the commission of offence by A-1 to the Police authorities concerned in spite of allegedly having knowledge about the said commission and that thereby she has committed the secondary offence punishable under S. 21(2) of the Act.

(3.) One of the main contentions raised by the petitioner is that an offence in the nature as per S. 21(2) of the POCSO Act is broadly akin to the offence as per S. 202 of the I.P.C. and is a secondary offence in comparison to the offence committed by the principal offender inasmuch as the offence alleged against the accused like the petitioner is that she has not reported the alleged commission of offence by the principal offender (A-1). Accordingly, it is contended by the petitioner that a person like the petitioner, who is accused of committing the secondary offence of not reporting the principal offence could be prosecuted only if it is established in a trial beyond reasonable doubt that the principal offence has been committed and that in the absence of a clear finding of conviction that the principal offender has committed the principal offence, there is no question of simultaneously prosecuting the secondary offender along with the principal offender. Reliance in that regard is placed by the petitioner mainly on the decisions of the Apex Court as in Harishchandrasing Sajjansinh Rathod (H.S. Rathod) and Anr. v. State of Gujarat (1979 KLT OnLine 1046 (SC) : (1979) 4 SCC 502), para, 4, etc. In complementary to these aspects, the petitioner would further contend that in cases like this, joint trial of the accused, who is alleged to have committed the principal offence, along with other accused, who is said to have committed the secondary offence, is not permissible by any of the provisions in the Cr.P.C. and that the only provision that may be pressed into service by the prosecution on the issue as to whether joint trial in such cases is permissible is the one as per S. 223(d) of the Cr.P.C. and that it cannot be contended that the principal offence of sexual assault allegedly committed by the principal accused and the secondary offence of not reporting the principal offence are offences committed in the course of the same transaction as understood in clause (d) of S. 223 of the Cr.P.C. In that regard, the petitioner would place reliance on the Full Bench decision of the Madras High Court in the case in Seraje Narayana Bhatta and Ors. v. State (AIR 1949 Mad. 9 : 1949 Cr.L.J. 80 : (1949) ILR Mad. 220 : 1948 - 61 LW 536 : (1948) MLJ 138), the judgment of the Chhattisgarh High Court in the case in Kamal Prasad Patade v. State of Chhattisgarh and Ors. (2016 (2) KLT OnLine 2512 (Chhatt.) : 2016 Cr.L.J. : 3759 : 2016 KHC 3937) as well as the judgment of the Madhya Pradesh High Court in Patnayak K.K. and Ors. v. State of M.P. (1999 (1) KLT OnLine 921 (M.P.) : 1999 Cr.L.J. 4911 : 1999 KHC 2705).