Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No.1874 of 2022

(Arising out of Special Leave Petition (Crl.) No.718

of 2022)

The State of Maharashtra & Anr.

…Appellants

Versus

Dr. Maroti s/o Kashinath Pimpalkar

…Respondent

J U D G M E N T

C.T. RAVIKUMAR, J.

1.Leave granted.

2.This Court in Shalu Ojha v. Prashant Ojha

1

observed: “this is an unfortunate case where the

provisions of the Protection of Women from Domestic

Violence Act, 2005 are rendered simply a pious hope of

the Parliament and a teasing illusion for the appellant”.

Even while, borrowing those words, we may say, we are

1 (2015) 2 SCC 99

Page 1 of 28

not peeved, but certainly paine d, as a legitimate

prosecution under another Act viz., the Protection of

Children from Sexual Offences Act, 2012 (for short

“POCSO Act”), has been throttled at the threshold by the

exercise of power under Section 482 of the Code of

Criminal Procedure, 1973 (for short ‘Cr.P.C.’), without

permitting the materials in support to it to see the light of

the day in respect of misprision of sexual assault against

minor tribal girls in a girls’ hostel. As per the impugned

judgment, the High Court of Judicature at Bombay,

Nagpur Bench in Criminal Application (APL) No.841 of

2019 dated 20.04.2021 quashed FIR No.185 of 2019

dated 12.04.2019 of Rajura Police Station and the final

report filed thereon under Section 173(2), Cr.P.C. qua the

Respondent. The raison d'etre for the said opening

remarks would be unraveled by the factual narration and

the legal analysis to be made hereinafter.

3.The stated chargesheet was laid on investigation in

FIR No.185/2019 registered at Rajura Police Station, Distt.

Chandrapur, for the offences under Section 376AB of the

Page 2 of 28

Indian Penal Code, 1860, Section 4 and 6 of POCSO Act,

Section 3(1)(w) and 3(2)(v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 and

Section 3 of the Maharashtra Prevention and Eradication

of Human Sacrifice and other Inhuman, Evil and Aghori

Practices and Black Magic Act, 2013. We may hasten to

add that it was filed under those Sections against the first

five accused and in fact, the Respondent herein was

arraigned as the 6

th

accused thereunder, essentially for

the failure to report the commission of the offence under

the POCSO Act (then, of course by unknown persons), in

compliance with the legal obligation under Section 19 (1)

of POCSO Act, punishable under Section 21 (1) thereof.

4.The stated FIR came to be registered against

unidentified person(s) on the accusation of commission of

sexual offences against minor tribal girls who were

students of Infant Jesus English Public High School, Rajura

residing in its girls’ hostel. The complaint was lodged by

one Rajesh Tulsidas Dhotkar, Assistant Project Officer,

Integrated Tribal Development Project, Chandrapur.

Page 3 of 28

According to the appellant, on 06.04.2019 the said officer

received a telephonic information from Chhaban

Pandurang Pachare, the Superintendent of the said hostel

which is under the control of the Integrated Tribal

Development Project, Chandrapur that one girl studying in

the 3

rd

standard and another studying in the 5

th

standard,

of the said school were not keeping well. Immediately,

he visited the hospital where they were admitted. Later,

he received letter No. 3392/2019 dated 10.02.2019

revealing that the students were shifted from Rural

Hospital Rajura to General Hospital, Chandrapur owing to

their deteriorating health condition. From the General

Hospital, Chandrapur a medical certificate was issued to

the effect that there is suspicion of sexual abuse.

Thereupon, the Project Officer, Integrated Tribal

Development Project, Chandrapur authorised him to lodge

the complaint and accordingly, it was laid. We may state

at this juncture that going by Criminal Application (APL)

No.841/2019, filed along with the present Appeal as

Annexure-P3, the parents of the victims were not happy

Page 4 of 28

with the investigation in the crime and they filed a

Criminal Writ Petition No.342/2019 and subsequently,

Final Report / Charge-Sheet No.43/2019 dated 08.06.2019

was filed.

5.Now, reverting to the case of the appellant, it is to

the effect that during the investigation, Superintendent of

the aforementioned hostel and four others, namely,

Narendra Laxmanrao Virulkar, Sau Neeta alias Kalpana

Mahadeo Thakare, Sau Lata Madhukar Kannake,

Venkateswami Bondaiyaa Jangam were arrested and

arraigned as accused in the crime. During the

investigation, it was found that 17 minor girls were

abused by the accused and on their medical examination

rupture of hymen was found. The respondent herein is the

Medical Practitioner appointed for treatment of girls

admitted to the said Girls’ hostel and the victim girls were

taken to him. The investigation revealed that the

respondent had knowledge about the incidents occurred,

from the victims themselves as the victim girls revealed

in their statements recorded under Section 161 of Cr.P.C.

Page 5 of 28

about their divulgation of sexual assault on them to the

respondent. In fact, some of the victims had specifically

revealed it in their statements recorded under Section

164 Cr.P.C. The respondent who was under a legal

obligation, in terms of the provisions under Section 19(1)

of the POCSO Act upon getting the knowledge about

committing of an offence under the POCSO Act, to provide

such information either to the Special Juvenile Police Unit

or the local police remained silent and did not provide

such information to help the accused, is the gist of the

allegation against him. As already stated, after

investigation a charge sheet was also filed. The

Respondent has been arraigned as accused No. 6 in the

aforesaid crime.

6.Apprehending arrest in connection with the said

crime, the respondent herein filed an anticipatory bail

application before the Ld. Sessions Judge on 10.06.2019

and the same was rejected on 25.06.2019. The said order

was challenged before the High Court and the High Court

allowed the appeal and granted him protection from

Page 6 of 28

arrest. Thereafter, the respondent herein filed Criminal

Application (APL) No.841/2019 under Section 482 of the

Cr.P.C. seeking quashment of the FIR dated 12.04.2019

and the chargesheet dated 08.06.2019 to the extent they

are against him. The High Court passed the impugned

judgment and quashed the FIR as also the chargesheet

qua the respondent. Hence, this appeal.

7.Before considering the merits of the challenge

against the impugned judgment whereby and whereunder

the stated FIR and the chargesheet were quashed, we

think it appropriate to refer to certain aspects and also

the position with respect to scope of exercise of power

under Section 482 Cr.P.C. Exercise of power under

Section 482 Cr.P.C. is an exception and not the rule and it

is to be exercised ex debito justitiae to do real and

substantial justice for the administration of which alone

Courts exist. This position has been stated and

reiterated by this Court time and again.

Page 7 of 28

8.This Court in the decision in R.P. Kapur v. State of

Punjab

2

, held that the High Court could not embark upon

an enquiry as to whether the evidence is reliable or not

while exercising the power under Section 482 Cr.P.C. In

State of Haryana & Ors. v. Bhajan Lal & Ors.

3

, at

paragraph 102 this Court held that quashing may be

appropriate where the allegations made in the First

Information Report or the complaint, even if taken at their

face value and accepted in their entirety, do not prima

facie constitute any offence or make out a case against

the accused and where the allegations in the First

Information Report and other materials, if any,

accompanying the F.I.R. do not disclose a cognizable

offence, justifying an investigation by police officers under

Section 156(1) of the Code except under an order of a

Magistrate within the purview of Section 155(2) of the

Code.

2 A.I.R. 1960 S.C. 866

3 1992 Supp (1) SCC 335

Page 8 of 28

9.In the decision in State of M.P v. Awadh Kishore

Gupta & Ors.

4

, this Court held that the High Court could

not embark upon an enquiry as to whether the evidence

is reliable or not as that would be the function of the Trial

Court. In Dr. Monica Kumar & Anr. v. State of Uttar

Pradesh & Ors.

5

, this Court held that the inherent power

under Section 482 Cr.P.C. should not be exercised to stifle

a legitimate prosecution. In Shiji alias Pappu and Ors.

v. Radhika and Another

6

, a two Judge Bench of this

Court held thus:

“…plenitude of the power under Section 482

Cr.P.C. by itself, makes it obligatory for the High

Court to exercise the same with utmost care and

caution. The width and the nature of the power

itself demands that its exercise is sparing and

only in cases where the High Court is, for reasons

to be recorded, of the clear view that continuance

of the prosecution would be nothing but an abuse

of the process of law. It is neither necessary nor

proper for us to enumerate the situations in

which the exercise of power under Section 482

4 (2004) 1 SCC 691

5 (2008) 8 SCC 781

6 AIR 2012 SC 499

Page 9 of 28

may be justified. All that we need to say is that

the exercise of power must be for securing the

ends of justice and only in cases where refusal to

exercise that power may result in the abuse of

the process of law.”

10.Having made such a short survey on authorities on

the exercise of power under Section 482 Cr.P.C. as above,

we will now refer to the object and purposes of the POCSO

Act. Article 15 of the Constitution, inter alia confers

powers upon the State to make special provisions for

children and Article 39 (f) provides not only that the State

shall direct its policy towards securing that the children

are given opportunities to develop in a healthy manner

and in conditions of freedom and dignity but also to

ensure that their childhood and youth are protected

against exploitation and against moral and material

abandonment. Recognising the constitutional obligation

and keeping in view the fundamental concept under

Article 15 of the Constitution and also realizing that

sexual offences against children are not adequately

Page 10 of 28

addressed by the existing laws, POCSO Act was enacted.

The provisions thereunder would reveal that it also aims

to ensure that such offenders are not spared and should

be properly booked.

11.To achieve the avowed purpose, a legal obligation for

reporting of offence under the POCSO Act is cast upon on

a person to inform the relevant authorities specified

thereunder when he/she has knowledge that an offence

under the Act had been committed. Such obligation is

also bestowed on person who has apprehension that an

offence under this Act is likely to be committed. Besides

casting such a legal obligation under Section 19, the

Legislature thought it expedient to make failure to

discharge the obligation thereunder as punishable, under

Section 21 thereof. True that under Section 21 (1), failure

to report the commission of an offence under Sub-Section

1 of Section 19 or Section 20 or failure to report such

offence under Sub-Section 2 of Section 19 has been made

punishable with imprisonment of either description which

may extend to six months or with fine or with both. Sub-

Page 11 of 28

Section 2 of Section 21 provides that any person who

being in-charge of any company or an institution (by

whatever name called) 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 with a term which may extend to one

year or with fine. Certainly, such provisions are included

in with a view to ensure strict compliance of the

provisions under the POCSO Act and thereby to ensure

that the tender age of children is not being abused and

their childhood and youth is protected against

exploitation.

12.Looking at the penal provisions referred above,

making failure to discharge the obligation under Section

19 (1) punishable only with imprisonment for a short

duration viz., six months, one may think that it is not an

offence to be taken seriously. However, according to us

that by itself is not the test of seriousness or otherwise of

an offence of failure to discharge the legal obligation

under Section 19, punishable under Section 21 of POCSO

Page 12 of 28

Act. We are fortified in our view, by the decisions of a

three Judge Bench of this Court in Vijay Madanlal

Choudhary & Ors. v. Union of India & Ors.

7

and a two

Judge-Bench in Shankar Kisanrao Khade v. State of

Maharashtra

8

.

13.In the decision in Shankar Kisanrao Khade’s case

(supra), a two Judge Bench of this Court in paragraph 77.5

and 77.6 issued certain directions for due compliance and

they read thus: -

“77.5. If hospitals, whether government or

privately-owned or medical institutions where

children are being treated come to know that

children admitted are subjected to sexual abuse,

the same will immediately be reported to the

nearest Juvenile Justice Board/SJPU and the

Juvenile Justice Board, in consultation with SJPU,

should take appropriate steps in accordance with

the law safeguarding the interest of the child.

77.6. The non-reporting of the crime by anybody,

after having come to know that a minor child

7 2022 SCC OnLine SC 929

8 (2013) 5 SCC 546

Page 13 of 28

below the age of 18 years was subjected to any

sexual assault, is a serious crime and by not

reporting they are screening the offenders from

legal punishment and hence be held liable under

the ordinary criminal law and prompt action be

taken against them, in accordance with law.”

14.In Vijay Madanlal Choudhary’s case (supra), this

Court observed that the length of punishment is not only

the indicator of the gravity of offence and it is to be

judged by a totality of factors, especially keeping in mind

the background in which the offence came to be

recognized by the Legislature in the specific international

context. In this context, it is also relevant to note that

the United Nations Convention on Rights of Children,

which was ratified by India on 11.12.1992, requires the

State parties to undertake all appropriate national,

bilateral and multilateral measures to prevent the

inducement or coercion of child to engage in any unlawful

sexual activity, the exploitative use of children in

Page 14 of 28

prostitution or other unlawful sexual practices etc.

Articles 3 (2) and 34 of the Convention have placed a

specific duty on the State to protect the child from all

forms of sexual exploitation and abuse.

15.Prompt and proper reporting of the commission of

offence under the POCSO Act is of utmost importance and

we have no hesitation to state that its failure on coming

to know about the commission of any offence thereunder

would defeat the very purpose and object of the Act. We

say so taking into account the various provisions

thereunder. Medical examination of the victim as also

the accused would give many important clues in a case

that falls under the POCSO Act. Section 27 (1) of the

POCSO Act provides that medical examination of a child in

respect of whom any offence has been committed under

the said Act, shall, notwithstanding that a First

Information Report or complaint has not been registered

for the offence under the Act, be conducted in accordance

with Section 164 A of the Cr.P.C., which provides the

procedures for medical examination of the victim of rape.

Page 15 of 28

In this contextual situation, it is also relevant to refer to

Section 53 A of Cr.P.C. that mandates for examination of a

person accused of rape by a medical practitioner. It is also

a fact that clothes of the parties would also offer very

reliable evidence in cases of rape. We refer to the

aforesaid provisions only to stress upon the fact that a

prompt reporting of the commission of an offence under

POCSO Act would enable immediate examination of the

victim concerned and at the same time, if it was

committed by an unknown person, it would also enable

the investigating agency to commence investigation

without wasting time and ultimately to secure the arrest

and medical examination of the culprit. There can be no

two views that in relation to sexual offences medical

evidence has much corroborative value.

16.Bearing in mind the position with respect to the

exercise of power under Section 482 Cr.P.C., the

provisions, penal and procedural, under POCSO Act, we

will proceed to consider the case on hand.

Page 16 of 28

17.The FIR registered in the case on hand would reveal

that it came to be registered on coming to know about

the suspected commission of sexual offence against

minor tribal girl(s) against unidentified person(s). Failure

to report regarding the commission of the offence under

the POCSO Act despite knowledge about the same is the

accusation against the respondent revealed from the

charge-sheet. The FIR reveals the ingredients of an

offence under the POCSO Act and the real magnitude of

the same was revealed during the investigation, as stated

above. On completion of the investigation, based on the

materials collected, the Officer-in-Charge of the police

station concerned formed an opinion that a cognizable

offence as mentioned therein, appears to had been

committed and that the persons named therein, including

the respondent herein, appears to have committed the

offences specified against them and filed final report

under Section 173(2) for prosecuting them. It is the

stated FIR dated 12.04.2019 and the stated chargesheet

Page 17 of 28

dated 08.06.2019 which were sought to be quashed and

consequently quashed as per the impugned judgment.

18.If FIR and the materials collected disclose a

cognizable offence and the final report filed under Section

173(2), Cr.P.C. on completion of investigation based on it

would reveal that the ingredients to constitute an offence

under the POCSO Act and a prima facie case against the

persons named therein as accused, the truthfulness,

sufficiency or admissibility of the evidence are not

matters falling within the purview of exercise of power

under Section 482 Cr.P.C. and undoubtedly they are

matters to be done by the Trial Court at the time of trial.

This position is evident from the decisions referred supra.

19.In the decision in M.L. Bhatt v. M.K. Pandita

9

, this

court held that while considering the question of quashing

of FIR the High Court would not be entitled to appreciate

by way of sifting the materials collected in course of

investigation including the statements recorded under

Section 161, Cr.P.C. In the decision in Rajeev Kourav v.

9 JT 2002 (3) SC 89

Page 18 of 28

Baisahab & Ors.

10

, a two Judge Bench of this Court dealt

with question as to the matters that could be considered

by the High Court in quashment proceedings under

Section 482 Cr.P.C. It was held therein that statements of

witnesses recorded under Section 161 Cr.P.C. being wholly

inadmissible in evidence could not be taken into

consideration by the Court while adjudicating a petition

filed under Section 482 Cr.P.C. In that case, this Court took

note of the fact that the High Court was aware that one of

the witnesses mentioned that the deceased-victim had

informed him about the harassment by the accused,

which she was not able to bear and hence wanted to

commit suicide. Finding that the conclusion of the High

Court to quash the criminal proceedings in that case was

on the basis of its assessment of the statements recorded

under Section 161 Cr.P.C., it was held that statements

thereunder, being wholly inadmissible in evidence could

not have been taken into consideration by the Court while

adjudicating a petition filed under Section 482 Cr.P.C. It

10 (2020) 3 SCC 317

Page 19 of 28

was also held that the High Court committed an error in

quashing the proceedings by assessing the statements

recorded under Section 161 Cr.P.C.

20.There can be no dispute with respect to the position

that statements recorded under Section 161 Cr.P.C. are

inadmissible in evidence and its use is limited for the

purposes as provided under Sections 145 and 157 of the

Indian Evidence Act, 1872. As a matter of fact,

statement recorded under Section 164, Cr.P.C. can also be

used only for such purposes.

21.In the instant case, a scanning of the recitals in

paragraph No.10 of the impugned judgment would

undoubtedly reveal the fact that the High Court had

formed an opinion on perusal of the statement of a

teacher of the victims and also the statements of the

victims that sexual assault was detected only from the

General Hospital, Chandrapur and then arrived at the

conclusion that the Respondent was not made aware of

sexual assault committed on the victims and there is no

Page 20 of 28

evidence to implicate him in the said crime. Paragraph

No.10 of the impugned judgment reads thus: -

“In the above backdrop, we have gone through

the statements of victims which have been

referred by the prosecution. The statements show

that the applicant had examined the victims. Their

condition was deteriorating. Therefore, they were

sent to General Hospital, Chandrapur. There is no

material on record to show that the applicant was

made aware about the sexual assault committed

on the victims. On the contrary, from the

statement of the teacher of victims it appears that

the sexual assault was detected only in General

Hospital, Chandrapur. Therefore, we are of the

view that there is no evidence to implicate the

applicant in the said crime. Therefore, the

continuation of proceedings against the applicant

would amount to abuse of process of Court.”

(Emphasis added)

Page 21 of 28

22.Thus, a bare perusal of the above extracted recitals

from paragraph No.10 of the impugned judgment would

reveal that the High Court had gone through the

statements of victims/witnesses cited by the prosecution,

to arrive at the conclusion as to the existence or

otherwise of evidence against the respondent. In view of

the provisions referred above and also plethora of

decisions including the decisions in M.L. Bhatt’s case

(Supra) and in Rajeev Kourav’s case (supra), statements

recorded under Section 161 Cr.P.C. are inadmissible in

evidence and, therefore, could not have been made the

basis for arriving at such conclusions. As noted above, the

FIR carries suspicion of commission of sexual assault and

the charge-sheet reveals prima facie against the

respondent in relation to non-reporting of such an offence

under the POCSO Act. The very case of the Appellant is

that some among the seventeen victims have given

statements under Section 161, Cr.P.C. and some others

under Section164 Cr.P.C., specifically stating that the

respondent was informed of the sexual assault on them.

Page 22 of 28

When that be the position, we have no doubt that the

High Court should not have embarked upon an enquiry,

especially by looking into the statements of the victims

recorded as also their teacher to form an opinion

regarding the availability of evidence to connect the

Respondent with the crime. True that the FIR and the

charge sheet still remain in fact in respect of the other

accused. But then, non-reporting of sexual assault

against a minor child despite knowledge is a serious

crime and more often than not, it is an attempt to shield

the offenders of the crime of sexual assault. Be that as it

may in view of the decision in Shankar Kisan Rao

Khade’s case (supra) holding non-reporting of such a

crime as serious and in view of the position obtained from

a conjoint reading of Sections 19(1) and 21 of POCSO Act,

such persons are also liable to be proceeded with, in

accordance with law. In this context, it is also relevant to

refer to an observation made by this Court in the said

case that this Court under parens patriae jurisdiction has

Page 23 of 28

a duty to give directions for compliance of the provisions

under the POCSO Act.

23.The learned counsel for the respondent attempted to

support and get sustained the impugned judgment

contending that it was rendered relying on the decision of

this Court in A.S. Krishnan & Ors. v. State of Kerala

11

and that going by the said decision, the respondent could

not have been accused of having failed to report the

commission of the offence of sexual assault under the

POCSO Act despite possessing knowledge about its

commission. Upon going through the judgment, we have

no hesitation to hold that the said decision is totally

inapplicable in the facts and circumstances of this case,

for more than one reason. Firstly, a bare perusal of the

said judgment would reveal that the question of

knowledge was considered by this Court not at the stage

of looking into the correctness or otherwise of a finding on

knowledge and the consequential quashment of

proceedings under Section 482, Cr.P.C. As a matter of

11 (2004) 11 SCC 576

Page 24 of 28

fact, it was so considered in an appeal against conviction

of the appellants therein under Sections 471, 420 read

with Section 34, IPC. This Court was considering the

expression ‘knows or has reason to believe’ occurring

under Section 471, IPC and while explaining the meanings

of the words “knowledge” and “reason to believe” this

Court held: -

‘9. Under IPC, guilt in respect of almost all the

offences is fastened either on the ground of

“intention” or “knowledge” or “reason to

believe”. We are now concerned with the

expressions “knowledge” and “reason to

believe”. “Knowledge” is an awareness on the

part of the person concerned indicating his state

of mind. “Reason to believe” is another facet of

the state of mind. “Reason to believe” is not the

same thing as “suspicion” or “doubt” and mere

seeing also cannot be equated to believing.

“Reason to believe” is a higher level of state of

mind. Likewise “knowledge” will be slightly on a

higher plane than “reason to believe”. A person

can be supposed to know where there is a direct

appeal to his senses and a person is presumed to

have a reason to believe if he has sufficient

cause to believe the same. Section 26 IPC

Page 25 of 28

explains the meaning of the words “reason to

believe” thus:

“26. ‘Reason to believe’. – A person is said

to have ‘reason to believe’ a thing, if he has

sufficient cause to believe that thing but not

otherwise.”

(Emphasis added)

In the contextual situation, it is also worthy to refer the

following recital from para 8 of the said decision:

“Whether the accused knew or had reason to

believe the document in question to be forged

has to be adjudicated on the basis of materials

and the finding recorded in that regard is

essentially factual”.

In the case on hand, the High Court arrived at the

finding of absence of evidence to implicate the respondent

in the crime in question upon going through the

statements of the victims and also the statement of the

teacher of the victims, which recourse is absolutely

impermissible.

Page 26 of 28

24.There is yet another reason to decline the aforesaid

contention of the respondent. We would not have even

perused Annexures- A 1 to A8, which are statements of

some of the victims recorded under Section 161/164,

Cr.P.C., recorded much prior to the impugned judgment

dated 20.4.2021 viz., in the year 2019 itself. We do so

solely to verify the verity of the finding of the High Court

to the effect that such statements do not disclose

anything suggesting knowledge of the respondent about

the commission of the crime. In troth, those statements

did mention about divulgation of sexual assault on them

by victims to the respondent. We may hasten to add, at

the risk of repetition, that such statements recorded

under Section 161/164, Cr.P.C. are inadmissible in

evidence, as held in M.L. Bhatt’s case (supra) and in

Rajeev Kourav’s case (supra). In the light of the

circumstances available as above and in the light of

Section 59 of the Evidence Act, the High Court was not

justified in bringing abrupt termination of the proceedings

qua the respondent. The position revealed from the

Page 27 of 28

discussion above constrains us to hold that there is prima

facie case against the respondent for the offence referred

above and hence, the appeal is liable to succeed.

25. In the light of the decisions and the provisions

referred above, the impugned judgment resulting in

quashment of the stated FIR and the charge-sheet

throttling the prosecution at the threshold, without

allowing the materials in support of it to see the light of

the day, cannot be said to be as an exercise done to

secure interests of justice whereas it can only be stated

that such exercise resulted in miscarriage of justice.

26.In the result, the impugned judgment of the High

Court is set aside and the Appeal is, accordingly allowed.

Pending applications, if any, are disposed of.

……………………, J.

(Ajay Rastogi)

……………………, J.

(C.T. Ravikumar)

New Delhi;

November 02, 2022.

Page 28 of 28