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2019 DIGILAW 417 (ORI)

Prasanta Kumar Panda v. State of Odisha

2019-06-24

S.K.SAHOO

body2019
ORDER : S.K. Sahoo, J. 1. This is an application under section 482 of the Code of Criminal Procedure filed by the petitioner Prasanta Kumar Panda praying for quashing the impugned order dated 18.07.2016 passed by the learned S.D.J.M., Malkangiri in G.R. Case No. 88 of 2015 in taking cognizance of offence under section 21(1) of the Protection of Children from Sexual Offences Act, 2012 (hereafter 'POCSO Act') and issuance of process against him. The said case arises out of Malkangiri P.S. Case No. 33 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 co-accused Smt. Sabitaram Sarkar who was the Hostel Superintendent of U.G. Govt. High School, Pedakunda, Malkangiri 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 came to the village. After the petitioner left the victim in her 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, co-villager 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 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. 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. 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 petitionees concerned, after receipt of charge sheet, the learned S.D.J.M., Malkangiri vide order 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 against the petitioner. 4. The petitioner challenged the cognizance order before this Court in CRLMC No. 3376 of 2015 and this Court vide order dated 27.11.2015 quashed the order dated 18.06.2015 and directed the learned S.D.J.M., Malkangiri for reconsideration in the matter of taking cognizance of offences. A copy of the order was also sent to the learned Sessions Judge, Malkangiri. As per the direction of the learned Sessions Judge-cum-Special Judge, Malkangiri on the basis of the observation of this Court made in CRLMC No. 3376 of 2015, the learned S.D.J.M., Malkangiri reconsidered the matter and passed the impugned order. 5. It is contended by the learned counsel for the petitioner that the petitioner is the headmaster of the school where the victim was prosecuting her studies and there is absolutely no material to show that the petitioner was aware of the commission of offence under the POCSO Act against the victim and therefore, there was no scope for him to report the matter as envisaged under section 19(1) of the POCSO Act and as such the order of taking cognizance should be quashed. 6. Learned counsel for the State on the other hand placed the statement of the victim which indicates that the victim communicated about the commission of rape on her to the Hostel Superintendent namely, Smt. Sabitarani Sarkar on 20.02.2015 who left her in her house on the next day and intimated her parents about the occurrence. He fairly submits that there is no material to show that the victim intimated about the occurrence to the petitioner. 7. Section 21 of the POCSO Act deals with punishment for failure to report or record a case under the POCSO Act. So far as reporting of the case is concerned, there must be material to show that the person concerned had apprehension that an offence under the POCSO Act is likely to be committed or he had knowledge that such on offence had been committed. So far as reporting of the case is concerned, there must be material to show that the person concerned had apprehension that an offence under the POCSO Act is likely to be committed or he had knowledge that such on offence had been committed. In spite of such apprehension or knowledge, if he deliberately fails to provide such information to the authorities prescribed under section 19(1) of the POCSO Act, the offence under section 21 would be attracted. 8. On careful analysis of the material on record, it appears that there is nothing to show that petitioner was aware of the commission of the offence against the victim and that being aware of the same, he failed to report to the authorities concerned. Therefore, I am of the humble view that the order of taking cognizance under section 21(1) of the POCSO Act and issuance of process against the petitioner is not sustainable in the eye of law. 9. Accordingly, invoking the inherent power under section 482 Cr.P.C., in order to prevent abuse of process and in the interest of justice I quash the impugned order in respect of the petitioner. 10. Accordingly, the CRLMC application is allowed.