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  • Published
    20th Nov, 2023

Failure to report sexual crimes against minors under the POSCO Act is a bailable offence, the Himachal Pradesh High Court has ruled recently.


What is the Judgement?

  • The Himachal Pradesh High Court pre-arrest bail to a hotel manager accused of failing to report an offence committed against a minor, as mandated by Section 21 of the Protection of Children from Sexual Offences (POCSO) Act.
  • Accused had stated that since the Act is silent on whether the offence is bailable or not, the nature of the offence must “be determined with reference to the Code of Criminal Procedure.”
  • The classification of offences under the CrPC “clearly” states that offences punishable with imprisonment of less than three years are bailable and non-cognizable. Section 21 of the POCSO Act prescribes imprisonment of 6 months to a year —thus making it a bailable offence.
POSCO Act: The Protection of Children from Sexual Offences Act (POCSO) was passed in 2012 to comprehensively deal with the issue of sexual offences against children. 

What was the case?

  • In the present case, the main accused raped and recorded a video of a minor schoolgirl in a hotel in September last year. He was booked by the police under Sections 376 (Rape) and 506 (Criminal Intimidation) of the Indian Penal Code, as well as under Sections 6 and 21 of the POCSO Act, which punish aggravated penetrative sexual assault and failure to report sexual crimes against children.
  • It has to be noted that, the FIRalso named the manager of the hotel in which the offence was committed, owing to the mandatory reporting provision under the POCSO Act.

POCSO and mandatory reporting:

  • Section 19 of the POCSO provides that anyone having “apprehension” that an offence under POCSO is likely to be committed, or knowledge that such an offence has been committed, “shall” provide such information to the Special Juvenile Police Unit (SJPU) or the police. The term “any person” also includes a child who may report an offence.
  • This reporting provision becomes binding due to Section 21 of the POCSO Act, which prescribes punishment for failing to report the commission of an offence under Section 19. Imprisonment of six months to one year, or a fine, or both is prescribed under Section 21.
  • It must be noted, however, that children cannot be held liable for failing to report the commission of a sexual offence. Similarly, children making false complaints or giving false information are also exempt from punishment under Section 22 of the Act.

Rulings of SC:

Led by Chief Justice DY Chandrachud, a three-judge SC bench in September 2022 tried to strike a balance between the mandatory reporting provisions under POCSO.

  • In a series of decisions, the Supreme Court has held that failure to report such cases amounts to a serious crime.
  • In 2013, a two-judge bench of the SC in Shankar KisanraoKhade vs. State of Maharashtraruled that “the non-reporting of the crime by anybody, after having come to know that a minor child below the age of 18 years was subjected to any sexual assault, is a serious crime.”
  • The apex court, in this ruling, put an even greater obligation on certain categories of professionals, such as medical practitioners and those in charge of educational institutions to report cases of child sexual abuse to the nearest Juvenile Justice Board, or Special Juvenile Police Unit.
  • This created a conundrum for medical practitioners, since their professional ethics require them to maintain the confidentiality of their clients.
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