IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 18TH DAY OF DECEMBER 2014/
DR LETHA J., A Vs STATE OF KERALA
Citation 2015CRLJ(NOC)248 kerala
A9, A8 and A7 in Crime No.645 of 2014 of the
Mananthavady Police Station, registered for the offences
under Sections 9(f), 9(l), 19(1) and 21(2) of the Protection of
Children from Sexual Offences Act, 2012 (hereinafter
referred to as `the POCSO Act'), have come up under
Section 482 Cr.P.C., to quash Annexure A7 First Information
Report in the said crime and all further proceedings based
on it as against them, quashed.
2. The petitioners are Director of Technical Education,
Senior Joint Director, Directorate of Technical Education and
Joint Director, Regional Directorate of Technical Education,
respectively.
3. On the basis of some alleged 'media reports in a
section of the Press on 12.06.2014', the Child Welfare
Committee, Wayanad (hereinafter referred to as `the CWC,
Wayanad') has seen suo motu registered a case on the
alleged sexual assault on girl students in Government
Technical High School at Dwaraka, Mananthavady. It is
alleged that the 1st accused Anil Kumar K.V., who was a
Draftsman Gr.II of the said School, had sexually assaulted
and harassed the girl students of the said School repeatedly
for a long period. On 12.06.2014, the CWC, Wayanad has
directed the head of the institution to submit a detailed
report along with it. It seems that, they have directed the
Joint Director, Regional Directorate of Technical Education
also to submit a detailed report. The reports were
submitted.
4. On 07.07.2014, the CWC has passed an order
directing the Station House Officer, Mananthavady
(hereinafter referred to as `the SHO, Mananthavady')
"to inquire into the matter and initiate appropriate legal
steps against (1) Mr. Anil Kumar K.V., (2) The Superintend
of Govt. Technical High School Mananthavady at Dwaraka,
(3) The Four members of the Ethics Committee, (4) The
Joint Director, Regional Directorate, Technical Education,
Kozhikode, (5) Senior Joint Director (PS), Directorate of
Technical Education Thiruvananthapuram and (6) Director of
Technical Education Thiruvananthapuram, within two weeks
of the receipt of this Order and report compliance."
5. It seems that the SHO, Mananthavady has swiftly
acted by registering the crime against 9 persons as
accused. It is quite unfortunate that the SHO, Mananthavady
has arraigned the Director, Senior Joint Director and Joint
Director as A9, A8 and A7 respectively in the crime alleging
the aforesaid offences.
6. Heard learned counsel for the petitioners and
learned Additional Director General of Prosecution.
7. The present instance is a classic example and a
fine illustration to note down the gross illegalities being
committed by the CWCs without knowing as to what they
are and what are their powers are, and as to how recklessly
they are exercising powers, which are not even conferred on
them. It seems that in this particular case, the CWC,
Wayanad has crossed over all the limits and has committed
gross illegality in passing such an order. The CWC has no
power to register a case. Without any powers, it seems
that, they have directed the SHO, Mananthavady to register
the case against 6 persons, including the petitioners herein.
The SHO, Manathavady has chosen to arraign 9 persons as
accused in the crime, including the present petitioners as
A9, A8 and A7 respectively. The offences alleged against
the petitioners are under Sections 9(f), 9(l), 19(1) and 21(2)
of the POCSO Act.
8. As per Section 9(f) of the POCSO Act :
"whoever being on the management or staff of an
educational institution or religious institution, commits sexual
assault on a child in that institution, is said to commit
aggravated sexual assault."
There is no allegation against these petitioners that they
have ever committed sexual assault on a child in that
institution.
9. As per Section 9(l) of the POCSO Act :
"whoever commits penetrative sexual assault on the
child more than once or repeatedly; is said to commit
aggravated sexual assault."
There is no allegation against any of these petitioners that
they have committed any such acts as contemplated under
Section 9(l) of the POCSO Act.
10. Matters being so, it seems that unnecessarily
these petitioners have been dragged in the matter at the
direction of the CWC and heinous offences like 9(f) and 9(l)
of the POCSO Act are levelled against them.
11. The CWC has found fault with these petitioners
and has noted in order dated 07.07.2014, the following:
"CWC is in receipt of the reports called for. On
perusing the various reports and the certified copies of the
victims' complaints, we are of the considered view that
there is prima facie evidence of offences attracting Sns.9
(f) (l) & 19(1), 21(2) of the Protection of Children from
Sexual Offences (POCSO) Act-2012."
It seems that the CWC have decided that there is prima
facie evidence for attracting offences under Sections 9(f), 9
(l), 19(1) and 21(2) of the POCSO Act. Simply based on the
said illegal finding entered by the CWC, the SHO,
Mananthavady has incorporated those offences against
these petitioners.
12. As per Section 19(1) of the POCSO Act:
"any person, 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 the Special Juvenile Police Unit or to
the local police."
13. The penal provision is contained in Section 21 of
the POCSO Act. As per Section 21(2) of the POCSO Act:
"Any person, being in-charge of any company or
an institution, 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 punishable
with imprisonment for a term which may extend to one
year and with fine."
Is it a case wherein, the Director, Senior Joint Director and
Joint Director can be brought within the purview of Section
21(2) of the POCSO Act ? They are not in charge of the
present institution. Further, the 1st accused cannot be styled
as a person, who is the immediate subordinate of any of
these petitioners. It seems that the CWC has acted in a
reckless manner and the same has been followed by the
SHO, Mananthavady by unnecessarily registering the case
against these petitioners. Much discussion is not required
to conclude that the FIR as against these petitioners is liable
to be quashed.
In the result, this Crl.M.C. is allowed and Annexure A7
First Information Report in Crime No.645 of 2014 of the
Mananthavady Police Station as against the petitioners is
concerned, stands quashed.
Sd/-
B. KEMAL PASHA
JUDGE
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