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2019 DIGILAW 415 (ORI)

Srimati Sabitarani Sarkar v. State of Odisha

2019-06-24

S.K.SAHOO

body2019
JUDGMENT : S. K. SAHOO, J. 1. This is an application under section 482 of the Code of Criminal Procedure filed by the petitioner Srimati Sabitarani Sarkar praying for quashing the impugned order dated 18.06.2015 passed by the learned S.D.J.M., Malkangiri in G.R. Case No.88 of 2015 which arises out of Malkangiri P.S. Case No.33 of 2015 in taking cognizance of offences under sections 176/34 of the Indian Penal Code read with section 21(2) of the Protection of Children from Sexual Offences Act, 2012 (hereafter 'POCSO Act') and issuance of process against her. The said case is now subjudiced in the Court of learned Addl. Sessions Judge -cum- Special Judge, Malkangiri in C.T. Case No.107 of 2015. 2. The criminal law was set into motion on the presentation of the first information report by one Deba Kabasi before the Inspector in charge of Malkangiri police station wherein it is alleged that on 21.02.2015 the petitioner was the Hostel Superintendent of U.G. Govt. High School, Pedakunda, Malkangiri and she brought the victim to her house and left her in the custody of the informant who is the father of the victim and told him that the victim was pregnant. The victim was prosecuting her studies in that School and she was staying in the hostel and sometimes she use to come to the village. After the petitioner left the victim in the house, the informant asked the victim relating to her pregnancy and she disclosed that on the last Dussehra vacation when she had come to the house, covillager Bhima Madkami took her inside the jungle situated nearer to her village and committed rape on her for which she became pregnant. The informant called the relatives and gentlemen of the village for amicable settlement and the Superintendent in charge and others came to the house of the victim and they took the victim to the Govt. Hospital at Malkangiri and after preliminary treatment, the doctors opined that the victim was pregnant for six months and she is to be treated properly. The accused Bhima Madkami absconded from the village. 3. On the basis of the first information report, Malkangiri P.S. Case No.33 of 2015 was registered under section 376(1) of the Indian Penal Code read with sections 4/5-J(ii)/8 of the POCSO Act. The accused Bhima Madkami absconded from the village. 3. On the basis of the first information report, Malkangiri P.S. Case No.33 of 2015 was registered under section 376(1) of the Indian Penal Code read with sections 4/5-J(ii)/8 of the POCSO Act. After completion of investigation, charge sheet was submitted for commission of offences under sections 376(1)/176/34 of the Indian Penal Code read with sections 6/21(2) of the POCSO Act. So far as the petitioner is concerned, after receipt of charge sheet, the learned S.D.J.M., Malkangiri vide under impugned dated 18.06.2015 took cognizance of offences under sections 176/34 of the Indian Penal Code read with section 21(2) of the POCSO Act and issued process. 4. Mr. S.K. Mishra, learned counsel appearing for the petitioner contended that there is absolutely no justification on the part of the learned Magistrate to take cognizance of offences under sections 176/34 of the Indian Penal Code read with section 21(2) of the POCSO Act and issue process against the petitioner. It is further contended that the materials on record indicate that on 20.02.2015 the victim communicated to the petitioner in the hostel about her pregnancy and on the very next day, the petitioner brought her back to her house and left there and intimated everything to the parents of the victim and therefore, it cannot be said that the petitioner intentionally omitted to furnish any information to any public servant and as such the ingredients of the offences are not attracted. 5. Mr. Prem Kumar Patnaik, learned Addl. Govt. Advocate on the other hand contended that in view of section 21(2) of the POCSO Act, the petitioner being the in charge of the hostel after coming to know about the commission of offence should have reported the matter either to the Special Juvenile Police Unit or to the local police as envisaged under the said subsection. She only left the victim girl in her house but did not give information relating to commission of offences as envisaged under section 19(1) of the POCSO Act and therefore, the ingredients of offence under section 21(2) of the POCSO Act are clearly attracted against the petitioner. 6. Adverting to the contentions raised by the learned counsel for the petitioner as well as the opp. party, it is not in dispute that the petitioner was the Hostel Superintendent of U.G. Govt. 6. Adverting to the contentions raised by the learned counsel for the petitioner as well as the opp. party, it is not in dispute that the petitioner was the Hostel Superintendent of U.G. Govt. High School, Pedakunda and the victim was staying in the hostel. There are materials on record to show that the rape was committed on the victim in 2014 during Dussehra festival by co- accused Bhima Madkami and she became pregnant and it was communicated to the petitioner on 20.02.2015. 7. Section 176 of the Indian Penal Code prescribes punishment for omission to give notice or information to public servant by person legally bound to give. The ingredients of the offence are as follows:- (i) that the person must be legally bound to give any notice or to furnish information on any subject to any public servant; (ii) that he intentionally omits to give such notice or furnish such information in the manner and at the time required by law. 8. Section 39 of Cr.P.C. deals with the duty of the public to give information forthwith relating to commission of certain offences if they became aware of such commission or of the intention of any other person to commit such offence. In absence of any reasonable excuse, since it is the duty of public to forthwith give information to the nearest Magistrate or police officer relating to the commission of offences or of the intention of any other person to commit any offence as specified under section 39 of Cr.P.C., if a person takes a plea of any reasonable excuse for not giving such information then the burden of proving such excuse shall lie on him. 9. It is noticed that section 376 of the Indian Penal Code which is alleged to have been committed in the present case has not been incorporated in section 39 of Cr.P.C. Therefore, it cannot be said that the ingredients of offence under section 176 of the Indian Penal Code are satisfied. There is no material on record that the petitioner intentionally omitted to give such information either to the Magistrate or to the police officer. Therefore, I am of the humble view that the ingredients of offence under section 176 of the Indian Penal Code are not attracted. 10. There is no material on record that the petitioner intentionally omitted to give such information either to the Magistrate or to the police officer. Therefore, I am of the humble view that the ingredients of offence under section 176 of the Indian Penal Code are not attracted. 10. Coming to section 21(2) of the POCSO Act, it prescribes that if any person who is in charge of any company or an institution, inter alia, fails to report the commission of an offence under sub-section (1) of section 19 in respect of the subordinate under its control, he/she shall be punished with imprisonment for a term which may extend to one year and with fine. Therefore, the person concerned must be either in charge of any company or institution and there must be failure on his/her part to report the commission of offence in respect of a subordinate under his/her control either to Special Juvenile Police Unit or to the local police unit. 11. In the present case, it is prima facie apparent from the statement of the victim and other materials on record that after coming to know about the commission of the offence from the victim relating to her rape by accused Bhima Madkami and her pregnancy on account of such rape, the petitioner being the Hostel Superintendent has not intimated either to the Special Juvenile Police Unit or to the local police unit. She simply took the victim to her house and left her in the custody of her parents. 12. Such a provision has been incorporated in the POCSO Act so that there can be early reporting of the incident to the police which would be helpful in registering the case and investigating the matter at an earliest and taking all consequential step for the arrest of the accused and to prevent disappearance of the evidence. 13. In a present case, the case was only reported by the father of the victim on 14.03.2015. Therefore, I am of the humble view that the necessary ingredients for commission of offence under section 21(2) of the POCSO Act are prima facie attracted against the petitioner. 14. 13. In a present case, the case was only reported by the father of the victim on 14.03.2015. Therefore, I am of the humble view that the necessary ingredients for commission of offence under section 21(2) of the POCSO Act are prima facie attracted against the petitioner. 14. In view of the forgoing discussions, I am of the humble view that the ingredients of offence under section 176 of the Indian Penal Code are not attracted against the petitioner and therefore, the impugned order relating to cognizance of such offence and issuance of process against the petitioner for such offence stands quashed. So far as the commission of offence under section 21(2) of the POCSO Act is concerned, I am of the view that there is no illegality in the order of the learned S.D.J.M., Malkangiri. 15. Accordingly, the CRLMC application allowed in part.