High Court · 2025
Legal Reasoning
cria-2290.24+7many persons had gathered there. The lady in Burkha and theman with her appeared to be Muslims and they were abusing.Presence of Satish Bhande is not at all stated by the informantand the friend of her husband who was along with her.Therefore, how police got the knowledge about the presence ofthis witness after such a delay, is a question. Therefore, when inHitesh Verma vs. State of Uttarakhand and another, (supra) theHon’ble Supreme Court held that such abuses or insulting wordsshould be heard by the independent witness, then in the presentcase even prima facie, this aspect has not been shown.Therefore, he submits that it would be unjust to ask theapplicants to face the trial. 8.Per contra, the learned APP as well as learned Advocateappearing for respondent No.2 strongly opposed the applicationand submitted that even if the police have not invoked Section21 of the POCSO Act, yet the appropriate Court can framecharge under that Section. On 27th February 2024, applicantNo.1 had came to know abut the incident which had in fact takenplace in the school premises, yet she had not filed any reportwith the police. Further, how the police had traced witness SatishBhande, would be explained by the investigating officer before cria-2290.24+8the trial Court and the applicants would be then having anopportunity to cross-examine him and therefore, this casecannot be taken as the case where the inherent powers arerequired to be exercised. Learned APP relies on the decision inState of Maharashtra and another vs. Dr. Maroti s/o KashinathPimpalkar, (2023) 4 SCC 298, wherein the purpose for whichSection 21 of the POCSO Act came into existence has beenexplained. It has been observed in Paragraph Nos. 11, 12 and 13as under:-“11. Having made such a short survey on authorities on theexercise of power under Section 482 Cr.P.C. as above, we willnow refer to the object and purposes of the POCSO Act.Article 15 of the Constitution, inter alia confers powers uponthe State to make special provisions for children and Article39(f) provides not only that the State shall direct its policytowards securing that the children are given opportunities todevelop in a healthy manner and in conditions of freedomand dignity but also to ensure that their childhood and youthare protected against exploitation and against moral andmaterial abandonment. Recognising the constitutionalobligation and keeping in view the fundamental conceptunder Article 15 of the Constitution and also realizing thatsexual offences against children are not adequatelyaddressed by the existing laws, the POCSO Act was enacted.The provisions thereunder would reveal that it also aims toensure that such offenders are not spared and should beproperly booked. cria-2290.24+912.To achieve the avowed purpose, a legal obligation forreporting of offence under the POCSO Act is cast upon on aperson to inform the relevant authorities specifiedthereunder when he/she has knowledge that an offenceunder the Act had been committed. Such obligation is alsobestowed on person who has apprehension that an offenceunder this Act is likely to be committed. Besides casting sucha legal obligation under Section 19, the Legislature thought itexpedient to make failure to discharge the obligationthereunder as punishable, under Section 21 thereof. Truethat under Section 21(1), failure to report the commission ofan offence under Sub-Section 1 of Section 19 or Section 20or failure to report such offence under Sub-Section 2 ofSection 19 has been made punishable with imprisonment ofeither description which may extend to six months or withfine or with both. Sub-Section 2 of Section 21 provides thatany person who being in-charge of any company or aninstitution (by whatever name called) who fails to report thecommission of an offence under Sub-Section 1 of Section 19in respect of a subordinate under his control, shall bepunishable with imprisonment with a term which may extendto one year or with fine. Certainly, such provisions areincluded in with a view to ensure strict compliance of theprovisions under the POCSO Act and thereby to ensure thatthe tender age of children is not being abused and theirchildhood and youth is protected against exploitation.13. Looking at the penal provisions referred above, makingfailure to discharge the obligation under Section 19(1)punishable only with imprisonment for a short duration viz.,six months, one may think that it is not an offence to betaken seriously. However, according to us that by itself is notthe test of seriousness or otherwise of an offence of failure todischarge the legal obligation under Section 19, punishableunder Section 21 of POCSO Act. We are fortified in our view, cria-2290.24+10by the decisions of a three Judge Bench of this Court in VijayMadanlal Choudhary & Ors v. Union of India & Ors., (2023)12 SCC 1, and a two Judge-Bench in Shankar KisanraoKhade v. State of Maharashtra, (2013) 5 SCC 546.” 9.Learned APP placed reliance on the further observations inState of Maharashtra and another vs. Dr. Maroti s/o KashinathPimpalkar, (supra), wherein it has been observed that promptand proper reporting of the commission of offence under thePOCSO Act is of utmost importance and we have no hesitation tostate that its failure on coming to know about the commission ofany offence thereunder would defeat the very purpose andobject of the Act.10. Learned APP also points out the decision in GangadharNarayan Nayak Alias Gangadhar Hiregutti vs. State of Karnatakaand others, (2022) 12 SCC 72, wherein it has been held that:- “It is made clear here that as per Section 155(2) CrPC, fornon-cognizable offence, an order is required to be taken fromthe Magistrate but in the light of Sections 2(1) and 28 of thePOCSO Act, the Special Courts are required to be designatedto deal with offences under the POCSO Act and they havebeen authorized under Section 33, conferring a power tosuch Special Courts to take cognizance. Therefore, the wordused in Section 155(2) be read as “Special Courts” in place cria-2290.24+11of “Magistrate”, which may take cognizance of any offenceunder the POCSO Act”. 11.The learned APP submits that yet in the present case theentire FIR is required to be considered which shows that somecognizable offence has been committed along with some non-cognizable offence has been committed and therefore as perSection 155(2) of the Code of Criminal Procedure, it should betreated as a cognizable offence. There is no technical defect inthe present matter and therefore, no case is made out forquashment of the FIR and the proceedings.12.The most important facts which are required to beconsidered are, firstly, regarding the information about thecommission of offence under the POCSO Act given to applicantNo.1 on 27th February 2024 and then secondly, when theinformant and the friend were proceeding to lodge the report,both the applicants intercepted their way / met them near thewater tank and then abused the informant in the name of thecaste. The material in the charge-sheet discloses prima facie thatinformant is a member of scheduled caste. The fact which is notin dispute is that her son is taking education the school whereapplicant No.1 is principal. When the informant came to know cria-2290.24+12about the incident from her son on 26th February 2024, she metapplicant No.1, on 27th February 2024 and informed her aboutthe incident. The informant then states that though applicantNo.1 called the child in conflict with law, but the informant statesthat she was then asked to go by applicant No.1. Now, on behalfof respondent No.2, it is tried to be submitted that whenapplicant No.1 came to know that the child in conflict with law isalso a Muslim boy, applicant No.1 was disinterested in taking anyaction. We need not go to that extent at this stage, but the factis that as per the FIR, the information about the incident in theschool was given to applicant No.1 and applicant No.1 appears tohave not taken any action on that day itself i.e. on 27th February2024.13.This Court recently, in Mrs. Sushama @ Sushma ManishShah and another vs. the State of Maharashtra and another(Criminal Writ Petition No.1686 of 2024, decided on 4th April2025), almost on the similar facts, had quashed and set asidethe proceedings in Special Case i.e. charge-sheet against theapplicants therein, who were the Principal of the school andsecretary of the trust which runs the said school. However, it wason the facts therein that there was an attempt by the applicants cria-2290.24+13therein to protect the evidence and the CCTV Footage was thenshown to the informant – mother. In that case, we had observedthat the knowledge is important and the intention would be moreimportant if the actions are not taken with mala fide intention.Now, here in the present case, the informant after she hadinformed about the incident to applicant No.1, she was asked togo out and then applicant Nos. 1 and 2 are stated to have metthe informant and the friend of her husband, who wereproceeding to lodge the FIR, and at that place, which is of coursethe public place, abuses in the name of the caste were given.14.The applicants are challenging the FIR and the charge-sheet in respect of the Sections of the Atrocities Act on twocounts, firstly, that the incident had not taken place within publicview and in public place and secondly, no independent witnesswas present when the alleged incident took place. For thispurpose, we will have to consider the statement of witness,namely, Arjun Bapusingh Thakur, then the informant, thenwitness Satish Bhande and the spot panchnama. It is stated thatthe incident had taken place near the water tank in the area ofNawa Mondha Market. Market is certainly a public place. If weconsider the spot panchnama, then the boundaries of the spot of cria-2290.24+14incident are shown, towards East there is a road from marketyard and beyond that there was godown, towards West therewas water tank, towards North there was a road in the marketyard and beyond that there was Hanuman Temple, towardsSouth there was open space from market yard and beyond thatthere was Kotwali Polife Station. Therefore, the prima facie factsdisclose that the spot was within public view and was accessibleto the public at large. Now, how police found out witness SatishBhande after so many days, can be explained by theinvestigating officer in his evidence. We are here to take note ofhis statement under Section 161 of the Code of CriminalProcedure only, which states that he had heard bot the accusedabusing informant in the name of the caste. 15.In State of Maharashtra and another vs. Dr. Maroti s/oKashinath Pimpalkar, (supra), the Hon’ble Supreme Court hasobserved that the High Court should sparingly exercise thepowers under Section 482 of the Code of Criminal Procedure. Ithas been further observed that the exercise of power underSection 482 of the Code of Criminal Procedure is an exceptionand not the rule and it is to be exercised ex debito justitiae to doreal and substantial justice for the administration of which alone cria-2290.24+15courts exist. Therefore, taking into consideration the decision inState of Maharashtra and another vs. Dr. Maroti s/o KashinathPimpalkar, (supra) and Gangadhar Narayan Nayak AliasGangadhar Hiregutti vs. State of Karnataka and others, (supra),we do not take this to be a fit case where we should exercise ourpowers under Section 482 of the Code of Criminal Procedure.16.Criminal Application No.2290 of 2024 stands dismissed. [SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/APR25
Arguments
cria-2290.24+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2290 OF 2024WITHCRIMINAL APPLICATION NO.4629 OF 2024[IN CRIMINAL APPLICATION NO.2290 OF 2024]1) Nasrin Yunus Khan Pathan, Age-36 years, Occu:Service as Principal, R/o-Varma Nagar, Parbhani, Taluka and District-Parbhani,2) Shaikh Mohammad @ Baba Shaikh Ismail, Age-40 years, Occu:Service, R/o-As Above. ...APPLICANTS VERSUS 1) The State of Maharashtra, Through Police Station Officer, Kotwali Police Station, Parbhani, Taluka and District-Parbhani,2) X. Y. Z. ...RESPONDENTS ... Mr. Swapnil S. Rathi Advocate for Applicants. Mr. G.A. Kulkarni, A.P.P. for Respondent No.1 -State. Mr. R.G. Narwade Advocate h/f. Mr. S.E. Shekade Advocate for Respondent No.2. ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ.DATE OF RESERVING ORDER : 4th FEBRUARY 2025DATE OF PRONOUNCING ORDER : 23rd APRIL 2025 cria-2290.24+2 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Criminal Application No.4629 of 2024 has been filedseeking permission to amend the main Application and to placeon record copy of the charge-sheet. Since amendment hasalready been carried out, Criminal Application No.4629 of 2024stands disposed of.2.So far as Criminal Application No.2290 of 2024 isconcerned, it has been filed under Section 428 of the Code ofCriminal Procedure, initially for quashing the First InformationReport (for short “the FIR”) vide Crime No. 111 of 2024registered with Kotwali Police Station, Parbhani, District-Parbhanifor the offence punishable under Sections 377, 504, 506 readwith Section 34 of the Indian Penal Code, Sections 4, 6, 12, 17of the the Protection of Children from Sexual Offences Act, 2012(for short “the POCSO Act”), Section 3(1)(r), 3(1)(s), 3(2)(v) ofthe Scheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act (for short “the Atrocities Act”), and later on byway of amendment for quashing the proceedings in Special Case cria-2290.24+3No.102 of 2024, pending before the learned Special Judge underthe POCSO Act / Additional Sessions Judge, Parbhani.3.Taking into consideration the involvement of POCSO Act,we would like to mask the name of respondent No.2.4.Heard learned Advocate Mr. Rathi for the applicants,learned APP Mr. Kulkarni for the State and learned Advocate Mr.Narwade holding for leaned Advocate Mr. Shekade forrespondent No.2.5.Learned Advocate for the applicants has taken us throughthe FIR and the charge-sheet and submits that the informant isthe mother of the minor son, who was studying in the schoolwhere applicant No.1 is the principal and applicant No.2 is thehusband of applicant No.1. The informant is Advocate byprofession and her husband is employed in Border SecurityForce. The informant’s son is taking education in playgroup inthe said school. When he informed the mother on 26th February2024 that two days prior to that date, in the recess (around11.00 a.m.) a student who is taking education in the sameschool (since that boy also appears to be a minor, we are cria-2290.24+4avoiding to give his name) had asked the victim to take his penisin his mouth twice and thereby sexually abused. On 27thFebruary 2024, the informant says that she met applicant No.1and told her about the incident. The boy, who had done the act,transpired to be taking education in 6th standard. He was calledand applicant No.1 made inquiry with him, but thereafter theinformant was asked to go out of the school. Then the informantalong with friend of her husband, started to go to lodge the FIRwith Kotwali Police Station. When they were near the water tankin Nawa Mondha Market area, at that time both the applicantswent there and abused the informant in the name of the casteby saying that:- “rqEgh egkjMs vkgkr] vkeP;k ‘kkGsr rqEgh egkjMsp HkkaM.k djrkr” (You are Mahar by caste and in our school only thepersons of your Mahar community make quarrel). .Applicant No.1 also given threat by stating that thepersons like the informant make applications against her and shehas political background and therefore, nobody can cause anydamage to her. Applicant No.1 further stated that even if theinformant gives FIR against them, then the informant would cria-2290.24+5suffer dire consequences and told that thereafter informantshould not come to the school and the Transfer Certificate (forshort “the T.C.”), Karate material and the certificates of her sonwould be sent. The informant then asked one of her knownperson to collect the T.C. and other material from the school.When the said person to whom the informant had requestedthose material to be collected, gave a phone call to applicantNo.1, then applicant No.1 got annoyed. Informant’s brother isalso an Advocate. By giving call to the Advocate, brother of theinformant, applicant No.1 spoke bad words against the personwhom the informant had asked to collect the material. Thebrother of the informant then made arrangements to get the saidmaterial from the school but it was told that the T.C. has beensent by post. Till the date of lodging the FIR, the informant hadnot received the said material and the T.C. of the son. 6.Learned Advocate for the applicants, thereafter submitsthat taking into consideration the allegations in the said FIR, itwould demonstrate that there is a delay in lodging the FIR andthe role that informant wants to attribute to the applicants isonly under Section 3(1)(r), 3(1)(s), 3(2)(v) of the Atrocities Actand Section 504, 506 read with Section 34 of the Indian Penal cria-2290.24+6Code. However, Section 377 of the Indian Penal Code andSections 4, 6, 12, 17 of the POCSO Act were against the saidjuvenile in conflict with law. At no stretch of imagination, Section17 of the POCSO Act can be attributed against the presentapplicants. Learned Advocate for the applicants submits thateven if we consider that the Special Court can frame chargeunder Section 21 of the POCSO Act, but the punishment that hasbeen provided for Section 21 of the POCSO Act is to the extentof six months or with fine or both. Thus, it is a non-cognizableoffence for which the FIR cannot be filed.7.Learned Advocate for the applicants relies on the decisionin Hitesh Verma vs. State of Uttarakhand and another, 2021CRI. L.J. 1, to support the case that when the informant and thefriend of her husband were proceeding and were near the watertank, no independent witness had heard the alleged abuses, butthen statement of one Satish Nagorao Bhande came to berecorded on 17th April 2024, stating to be the person who hadwitnessed the incident. Even if his statement is taken as it is, hestates that when he was near Nawa Mondha area on 27thFebruary 2024, he had found that a lady in Burkha and anotherfair looking person were quarreling with a lady. He states that