NEW DELHI: Information received from a minor victim about sexual assault will be deemed credible and the recipient will be bound to report it to authorities including police under the POCSO Act, the Supreme Court on Thursday held.
A bench of justices Manoj Misra and KV Viswanathan, which interpreted the question as to when can it be said that a person has knowledge that an offence under the POCSO Act has been committed, noted that the phrase "has knowledge that such an offence has been committed" is not limited to direct knowledge, but would include awareness of its commission based on direct information received from the minor victim.
"Therefore, for the purposes of this Act, when a child victim reports to a person that he or she has been subjected to an offence, or is likely to be subjected to an offence, punishable under the Act, it could safely be concluded that the person to whom such information is provided by the child victim has knowledge that such an offence has been committed or is likely to be committed," the top court ruled.
The bench interpreted the question arising from a Prevention of Children from Sexual Offences Act (POCSO) case related to a school in Arunachal Pradesh, where an eight-year-old girl reported about the sexual assault allegedly by a school senior boy to her teachers, elder sister and classmates.
The bench said there may be instances where a child may report without understanding the nature of the act to which the child has been subjected to.
"In such cases, and also where the information provided by the child is either not clear or confusing, a brief questioning of the child may be justified to derive a lucid picture of the nature of the information which the child wishes to convey. However, such questioning should not be with a view to rubbish the complaint made by the child, rather it must be to understand the true and correct nature of the complaint," it said.
The top court set aside the order of Gauhati High Court and the trial court, which discharged the teachers and the headmistress from the offences under POCSO Act regarding omission to furnish information regarding commission of the offence, causing disappearance of evidence of the offence, conspiring not to disclose the incident to anyone and for failing to report the commission of a cognizable offence.
It said that the expression 'knowledge' is not defined in either the POCSO Act or any of the Codes/ Acts and even the General Clauses Act, 1897 does not define it.
Therefore, a contextual meaning of the word 'knowledge', which serves the avowed purpose of the Act, would have to be ascertained, the bench said.
"In light of the discussion above, in our considered view, to serve the avowed purpose of the POCSO Act, the phrase "has knowledge that such an offence has been committed", as used in sub-section (1) of Section 19, would have to be construed as to include awareness based on the receipt of credible information with regard to commission of an offence punishable under the Act. And where such information is received directly from the victim, who is capable of communicating/ reporting/ informing, it will be deemed credible," the bench said.
Dealing with the case, the bench added that the high court and the trial court fell in error in holding that as there were no noticeable signs of sexual assault, there was no reason to believe that such an offence has been committed; therefore, the accused were not under a legal obligation to report.
"However, not all teachers or office bearers of the institution need to be prosecuted for the offence punishable under Section 21 of the Act. Only those who received information directly from the victim, of her being subjected to sexual assault, could be prosecuted for failure to report," it said.
The bench said others, who are not the ones before whom offence was committed or to whom complaint was made, are not liable to be prosecuted merely because of their alleged presence in the room where verification was carried out.
"This we say so, because in absence of a direct complaint to them, and there being no signs of sexual assault according to their understanding as also the medical report, they cannot be considered liable for not reporting," it said.
The bench noted that the victim had imparted information about the incident to as many as four persons, namely, her elder sister; her friend; the head girl; and a teacher.
The top court said the victim's sister, victim's friend and the head girl of the institution are not liable to be prosecuted for an offence punishable under the POCSO Act as they were minors.
While partially allowing the appeal filed by the mother of the victim, challenging the high court order, the top court said qua the teacher, the police report had sufficient material to create grave suspicion against her for the purposes of framing charge of an offence punishable under Section 21 of the POCSO Act and Section 176 of IPC, and therefore, she was not entitled to be discharged.
