Not Mandatory To Obtain Sanction To Prosecute Public Servant For Failing To Report POCSO Offences, S. 19 Contains Non-Obstante Clause: Kerala HC

Post By 24law
February 26, 2025

Pranav B Prem

The Kerala High Court has ruled that sanction under Section 197 of CrPC or Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is not mandatory for prosecuting a public servant under Sections 19 and 21 of the POCSO Act for failing to report offences under the Act. The Court based its conclusion on the non-obstante clause in Section 19 of the POCSO Act, which overrides the provisions of CrPC.

A single-judge bench of Justice A. Badharudeen observed, "It is true that as per Section 42A of POCSO Act the provisions of POCSO Act shall be in addition to and not in derogation of any other case for the time being in force. But Section 42A of the POCSO Act to be read in exclusion of the provision where non-obstante clause is provided, for its applicability… When a non-obstante clause is used specifically in Section 19, as far as Sections 19 and 21 are concerned, Section 42A would not apply, thereby Section 197 of Cr.P.C or Section 218 of BNSS would not have any application to Section 19 r/w 21 of the POCSO Act. The precept of the discussion leads to hold that in order to prosecute a public servant for the offence under Section 21 r/w Section 19 of POCSO Act, sanction under Section 197 of Cr.P.C or under Section 218 of BNSS is not mandatory."

Legal Obligation To Report POCSO Offences

The Court emphasized that Section 19 of the POCSO Act imposes a statutory obligation on any person who has knowledge of a POCSO offence to report it to the authorities. Failure to do so attracts punishment under Section 21. In this context, the Court noted, "When a statute imposes a duty upon a public servant to do something, the omission when comes within the ambit of the POCSO Act under Section 19(1) and (2) r/w 21, in view of the non-obstante clause which specifically excludes the provision of the Cr.P.C to Section 19 of the POCSO Act, sanction under Section 197 of Cr.P.C or Section 218 of BNSS is not mandatory."

Case Background

The case involved a 13-year-old minor who became pregnant due to penetrative sexual assault. The prosecution alleged that the petitioner, a government doctor, had knowledge of the POCSO offence but failed to report it to the police. The petitioner sought discharge on the ground that prior sanction under Section 197 of CrPC was necessary for his prosecution. The prosecution submitted that the petitioner became aware of the minor’s pregnancy on November 25, 2020, but did not report it to the police. The Court noted that the police registered the crime only on December 12, 2020, leading to a delay of three weeks in the investigation.

No Requirement Of Prior Sanction

The Court categorically rejected the petitioner's argument regarding the necessity of sanction, holding that "Section 19 starts with the non-obstante clause that 'notwithstanding anything contained in the Code of Criminal Procedure, 1973'. In fact, a statutory obligation is cast upon persons, who have apprehension that an offence under the POCSO Act is likely to be committed or have knowledge that such an offence has been committed, so that they shall provide such information to the police." Citing precedent, the Court referred to George P.O v. State of Kerala [2025 (1) KHC 32], wherein it was held that "S.19 of the POCSO Act casts a mandate on any person to report the commission of an offence. The mandate to report does not relate to his official character. The mandate to report contained in S.19 of the POCSO Act is to be performed in his private capacity."

Public Servants Are Not Exempt From Reporting Duties

The Court also cited the Supreme Court's ruling in State of Maharashtra v. Dr. Maroti [2022 (6) KLT OnLine 1002 (SC)], which emphasized the necessity of prompt reporting of POCSO offences. The Court observed, "Prompt and proper reporting of the commission of offence under the POCSO Act is of utmost importance and we have no hesitation to state that its failure on coming to know about the commission of any offence thereunder would defeat the very purpose and object of the Act."

Further rejecting the contention that doctors should be given immunity, the Court referred to Ambujakshi T. (Dr.) v. State of Kerala [2025 KHC OnLine 80], where it was held that, "Doctors are bestowed with the duty to save the life of the patients and have been busily engaged in their vow. Therefore, while implicating doctors in criminal cases with the aid of Section 19 of the POCSO Act, the investigating officer must apply his mind from the materials collected and form an unbiased opinion to see, prima facie, that there is deliberate intention or omission to report the crime."

Dismissal Of The Revision Petition

Based on the materials presented, the Court ruled that there was a prima facie case against the petitioner. It noted that "the prosecution materials would show that the offence alleged against the revision petitioner is made out, prima facie, from prosecution records, warranting trial. Therefore, discharge plea as well as quashment plea would necessarily fail." The Court further stated, "In the instant case, the revision petitioner, who got knowledge regarding the crime on 25.11.2020, failed to inform the same and accordingly registration of crime was delayed for a period of three weeks. That must have attenuated timely investigation of the case without elements of lacuna." Thus, the Court dismissed the revision petition and vacated the interim order of stay, reinforcing the necessity of prompt reporting of POCSO offences by public servants.