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Synopsis

The Kerala High Court has refused to quash criminal proceedings under the Prevention of Children from Sexual Offences (POCSO) Act against a woman who runs a cottage where two minors were allegedly raped. The court emphasised the obligation under Section 19 of the POCSO Act for reporting offences and observed that it is an offence if a person in charge of a company or institution fails to report the commission of an offence under Section 19(1) by a subordinate under their control.

Justice A. Badharudeen, presiding over the court, noted : “As per section 21(2), failure to report commission of an offence u/s. 19(1) by any person being in charge of any company or an institution (by whatever name called) in respect of a subordinate under his control, is an offence,” while upholding charges against the petitioner, Sheela, under Section 19(1) r/w 21 of the POCSO Act, who sought the quashing of case against her.

The case involved the alleged sexual assault of two 15-year-old girls by a man at the cottage run by the petitioner. The accused, a friend of the petitioner, allegedly brought the victims to the cottage, where one was raped in October 2021 and the other subjected to aggravated sexual assault. The victim that was raped was also alleged to have become pregnant by reason of the assault. It was alleged that the petitioner has provided the accused with the room where the assaults occurred thereby facilitating the sexual assault.

The petitioner, represented by Advocate Peeyus A. Kottam, argued that she was not named in either the FIR or the First Information Statement. Furthermore, the license to operate the cottage was issued in her husband's name, making him the responsible party. Based on this, the petitioner contended that she could not be held liable as the accused.

Senior Public Prosecutor Renjit George, arguing on behalf of the prosecution, alleged that Sheela provided a room to the accused, knowing that he intended to commit sexual assault on the minor victims. The prosecution also alleged that Sheela failed to inform the police about the incident, despite being aware of it. The prosecution also countered the argument by Sheela not running the cottage, relied on statements from Abhilash K. Nambiar, the cottage manager, highlighting that at the time of the incident, the petitioner was in-charge of the cottage and had failed to report the offence.

The court after examination of available material on record ruled that there was sufficient evidence against the petitioner to proceed with the trial. The court noted that the license in Sheela's husband's name had expired on March 31, 2021, and she was running the cottage on October 21, 2021, when the alleged rapes occurred.

“The prosecution has a specific case that the petitioner herein was the person who was running Budgies Cottage as on the date of occurrence in both crimes, and the materials collected during investigation would, prima facie, endorse the same,” the court stated.

Conclusively, the court held that the petitioner's failure to report the offence fell under Section 21 of the POCSO Act noting that “allegation as to commission of the offence punishable under Section 19(1) r/w 21 of the POCSO Act against the petitioner/2nd accused is, prima facie, made out and in such a case, quashment cannot be considered since, prima facie, materials are in abundance to go for trial.”

 

Cause Title: Sheela v State of Kerala [CRL.MC NO. 8460 OF 2022]