Kerala HC: Criminal Prosecution Against Subsequent Doctor U/S 21 POCSO Act Is Abuse Of Court Process If Initial Doctor Already Reported To Police

Post By 24law
February 12, 2025

Pranav B Prem

The Kerala High Court has held that prosecuting a subsequent doctor under Section 21 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is an abuse of the process of court if the initial doctor has already reported the offense to the police. A Single Bench of Justice A. Badharudeen made this observation while allowing a Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure (CrPC) by a doctor seeking to quash the criminal proceedings pending before the Special Court under the POCSO Act. The Court noted that once the first doctor reports the matter, further prosecution against subsequent treating doctors is unwarranted.

Case Background

According to the prosecution, in January 2021, the first accused trespassed into the residence of a 17-year-old minor girl and subjected her to sexual intercourse, leading to pregnancy. Consequently, he was charged under Sections 450 and 376 of the Indian Penal Code (IPC) and Sections 4(1) read with 3(a), 6(ii) read with 5(j)(ii) of the POCSO Act. The prosecution further alleged that the petitioner, a doctor who treated the victim, failed to report the incident to the police as required under Section 19(1) of the POCSO Act, thereby committing an offense under Section 21 of the Act. The victim’s mother was also accused of the same offense. The petitioner contended that there was no deliberate omission on her part, as the crime was already reported by another doctor while the victim was undergoing treatment.

Court’s Observations

The High Court emphasized that while Section 19(1) of the POCSO Act mandates prompt reporting of such offenses, the statute does not specify a strict time frame for doing so. The Court stated: "In the instant case, Dr.Indu M.R, who initially treated the victim on 31.05.2021, on noticing the pregnancy of minor girl, reported the same as MLC on 03.06.2021 and the CMO of the hospital reported the same to the Police on 04.06.2021 and crime was registered on 04.06.2021. In the meantime, the petitioner also had occasion to treat the victim on 02.06.2021 onwards and on 04.06.2021 the Police, acting on the request given by Dr.Indu M.R., who attended the victim for the first time, registered the crime."

The Court posed two key questions for consideration:

Whether the petitioner deliberately or willfully failed to report the crime to the police?
If the initial doctor had already informed the police, would a subsequent doctor’s failure to report the same incident attract liability under Section 21 of the POCSO Act?

Addressing these concerns, the Court held: "In such a case, it is held that, when the initial doctor, who treated or had occasion to attend the victim, on getting knowledge regarding commission of the offence under the POCSO Act, reports the same without much delay and on the basis of the same crime also registered, criminal prosecution against the doctor or doctors, who subsequently treated the same victim for the offence under Section 21 read with 19(1) of the POCSO Act, is an abuse of process of court, since the doctor who initially treated the victim already informed the same to the Police and crime was also registered. No doubt, such prosecution shall be avoided." The Court also clarified that criminal liability under Section 21 requires a "deliberate or intentional omission", which was absent in this case.

Quashing of Proceedings

Noting that the prosecution against the petitioner lacked justification, the Court observed: "Viewing so, there is no deliberate omission on the part of the petitioner in reporting the crime, in the facts discussed. Holding so, I am of the view that the criminal prosecution as against the petitioner in this crime, alleging commission of offence punishable under Section 21 read with 19(1) of the POCSO Act is unwarranted and without any justification, prima facie." Accordingly, the Kerala High Court allowed the petition and quashed the proceedings against the doctor.