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2019 DIGILAW 662 (BOM)

SANJAY v. STATE OF MAHARASHTRA

2019-03-06

S.M.MODAK, SUNIL B.SHUKRE

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JUDGMENT : Sunil B. Shukre, J. Rule. Rule is made returnable forthwith and heard finally with the consent of Shri P.H. Gulhane, learned counsel for the applicant and Shri N.B. Jawade, learned APP for the non-applicants. 2. This is a case which involves, according to the allegations made against the applicant, failure to perform duty as in-charge of a Police Station, upon receipt of an information regarding commission of an offence punishable under the provisions of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act). 3. The applicant at the relevant time was the Police Inspector, In-charge of Maregaon Police Station, District - Yavatmal. It is stated that on the same day on which crime was committed i.e. 11.03.2017, the victim had informed the police including the applicant of her plight she was made to suffer at the hands of the accused - Sheshrao Shinde but the offences punishable under Section 376(2)(i)(j) of Indian Penal Code (IPC), Section 6 of POCSO Act and under the relevant clauses of Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, (hereinafter referred to as Atrocities Act), were not registered against the accused on that day and were registered subsequently vide Crime No.78 of 2017 in breach of mandate of Section 19(2) of POCSO Act and Section 4 of the Atrocities Act. 4. The victim girl was alleged to be about 12 years old at the time of incident. The incident had taken place on 11.03.2017 at the residential house of the victim of crime when her father and her paternal uncle, who were the labourers and occupying the same house, were not present in the house. The victim had immediately informed about the incident to her paternal uncle and to her father and on the same day i.e. on 11.03.2017, the father and the victim had visited Police Station, Maregaon. The allegations so far as this applicant are concerned are that at the time when the victim and her father went to the Police Station on 11.03.2017, this applicant was present and he was informed about the incident by the father of the victim but the applicant did not take any action of registration of offence against the accused. The allegations so far as this applicant are concerned are that at the time when the victim and her father went to the Police Station on 11.03.2017, this applicant was present and he was informed about the incident by the father of the victim but the applicant did not take any action of registration of offence against the accused. It is also alleged that at the time of visit to Police Station, the accused Sheshrao Shinde was also present in the Police Station and at the behest of the co-accused - API Raut, the accused in FIR No. 78 of 2017 had paid an amount of Rs.10,000/- to the father of the victim which has been accepted by him and then on the advice given by API Raut, the matter was closed with further advise given to the father of the victim to not venture to visit Police Station again. All these facts, it is also alleged, were brought to the knowledge of this applicant while he was in his chamber. It is alleged that this applicant also gave similar advise to the victim and her father as was given by API Raut. 5. It is the contention of the learned counsel for the petitioner that at the time when it has been alleged that the victim and the father had met the applicant at the Police Station on 11.03.2017, the applicant was not present at the Police Station and was busy in performing bandobast duty. Our attention has been invited to rejoinder filed by the applicant and the documents annexed to it. 6. We have gone through the documents annexed to the rejoinder and we are satisfied that these documents do not show anywhere that this applicant was assigned personally any bandobast duty, compelling him to leave the Police Station and attend to that duty only. On the contrary, these documents, which contain the specific orders passed by the Superintendent of Police, Yavatmal, contain a direction to the applicant that he should make arrangements for providing bandobast to the VIP and at the place shown therein. On the contrary, these documents, which contain the specific orders passed by the Superintendent of Police, Yavatmal, contain a direction to the applicant that he should make arrangements for providing bandobast to the VIP and at the place shown therein. These orders do not show any further direction to the applicant that while providing bandobast i.e. deploying police personnel for maintaining safety and security of the persons and the place indicated therein, the applicant as the In-charge of Police Station, Maregaon, should personally remain present and form a part of bandobast so provided by him. Therefore, as stated earlier, these documents would demolish the case of the applicant that he was not present at the relevant time in the Police Station. The argument made in this respect is rejected. 7. The next contention of the learned counsel for the petitioner is that in fact, the offences under the IPC as well as relevant provisions of POCSO Act have been registered only on the direction given by this applicant and, therefore, it could not be said that the applicant failed to perform his duty. 8. The learned APP submits that the offence ought to have been registered on receiving the FIR therefor and it was in the afternoon of 11.03.2017. He further submits that instead of registering the crime for various offences, the applicant also took the line adopted by API Raut and in this way approved the conduct of API, which was clearly in violation of mandatory provisions of law. 9. Upon consideration of supplementary statements recorded in this respect, which appear to have been recorded on 17.08.2017, about five months after the alleged incident, it is seen that the facts regarding commission of offence under the provisions of POCSO Act and also under the provisions of Atrocities Act were brought to the notice of this applicant in the afternoon of 11.03.2017 and if this was so, the applicant was under an obligation in terms of Section 19(2) of POCSO Act and also under Section 4 of the Atrocities Act to set the law in motion by taking an entry and recording in writing the oral report given by the victim and/ or father, in the book kept for the purpose at the Police Station. Instead of doing this, the applicant virtually shooed away the informant and victim from the Police Station and gave a warning to them to not dare visit the Police Station once again. Later on, if by way of an afterthought some wisdom had dawned upon the applicant, it would not undo the damage already done in the matter because of failure to perform mandatory duty under the law by the applicant. The moment there is a failure to perform a mandatory duty under Section 19(2) of the POCSO Act and also under Section 4 of the Atrocities Act, the offences contemplated under Section 21 of the POCSO Act and Section 4 of the Atrocities Act would stand constituted. This is how, prima facie, we see that these offences were committed on the very day of 11.03.2017 when there was a clear failure to perform duty on the part of the applicant. 10. It is further submitted by the learned counsel for the petitioner that in the present case there is a late reporting regarding the so-called failure to perform duty by the applicant, as this was revealed by the informant and the victim on 17.08.2017, when their supplementary statements were recorded. According to him, such late reporting itself has shown that there is no prima facie substance in the allegations made against this applicant. 11. With due respect, we must say that the law governing this aspect of investigation is different. It is not the case that in every matter, late recording of the statements of witnesses by itself vitiates the whole trial and the settled law would tell us that it depends on the facts and circumstances of each case. The settled law also lays down that an opportunity of explaining the late recording of statements of witnesses must be given to the Investigating Officer and the Court must consider the fact of such recording of statements belatedly in the light of explanation given by the Investigating Officer and other attending circumstances. A useful reference in this regard may be made to case of Harbeer Singh vs. Sheeshpal & Ors., (2016) 16 SCC 418. So, this is a job to be done by the trial Court at the time of appreciation of evidence and certainly not by the Court whose inherent powers under Section 482 of the Criminal Procedure Code have been invoked. 12. So, this is a job to be done by the trial Court at the time of appreciation of evidence and certainly not by the Court whose inherent powers under Section 482 of the Criminal Procedure Code have been invoked. 12. At this stage, this Court would have to consider the allegations made against the applicant and taken at face value and if the overall facts and circumstances are such as to convince us reasonably that prima facie the offences alleged are constituted, there is very little that this Court could do under Section 482 of the Criminal Procedure Code. If upon such submissions as regards late recording of statements of witnesses and in the light of what has come on record in this case, this Court has to make any interference, it would only amount to abuse of process of law. 13. In the light of what has been stated hereinabove, we are not inclined to make any interference in the matter. Criminal Application stands dismissed. Rule is discharged.