Parent mandatorily required to inform police about any sexual offence against child: Punjab and Haryana High Court

The Punjab and Haryana High Court recently held that a parent is also mandatorily required to inform the police or Special Juvenile Police Unit (SPJU) about the commission of any offence against their child under the Protection of Children from Sexual Offences (POCSO) Act [Axx v State of Haryana and Another]..Justice Deepak Gupta made the observation while refusing to quash an application pending before the trial court to add a child victim’s mother as an accused for failing to report the sexual harassment of her son to the police.The child victim was a student of Faridabad’s Delhi Public School who died by suicide in 2022. Since the mother had allegedly failed to report the sexual harassment of her son to the police, a plea was filed before the trial court to make her an accused as well in a criminal case related to his death..The Court noted that any person having apprehension that an offence under the POCSO Act against a child is likely to be committed or has the knowledge that such an offence has been committed is obliged to inform the police or SPJU.“The use of the word ‘shall’ in Section 19(1) of the POCSO Act makes the intention of the legislature quite clear that it is mandatory for any person having knowledge of the offence to inform the Special Juvenile Police Unit [SJPU] or the local police,” it opined..The Court further remarked that Section 21 of POCSO Act provides for punishment on failure to report a case irrespective of whether the person is part of some institution or the parent of the child or a friend. The observations were made by the Court in the case pertaining to the death of the 16-year-old who died by a suicide in February 2022. .The Class X student had blamed the school authorities for the extreme step in his suicide note. His mother in a complaint to the police sought action against the school management She alleged that the students at the school would harass the victim “by calling him gay” but no action was taken by the school management. It was also stated he was dyslexic. .The Police registered a case under Section 306 (abetment of suicide) and provisions of the POCSO Act against the school Principal Surjeet Khanna and Headmistress Mamta Gupta.Soon after her petition seeking quashing of the First Information Report (FIR) was dismissed by the High Court, Khanna had moved an application before the trial court for taking cognizance against the victim’s mother as well for failing to report the alleged offences to police. On July 18 in 2020, the trial court asked the victim’s mother to respond to the application. She (petitioner) then moved the High Court seeking the quashing of this application..The Court concluded that the mother was mandatorily required to report the offences to the police or SJPU under the POCSO Act.In this context, the Court also opined that the email written by the petitioner to the school informing them about the bullying and sexual harassment faced by her son makes it clear that she had knowledge about the commission of offences under POCSO Act much before she gave the information to the school authorities.“As such, prima facie, the mother was mandatorily required to inform the local police or the SJPU about the same as per Section 19 of the POCSO Act,” the Court said..The Court rejected the contention that she had performed her duty by informing the school in accordance with its Child Protection Policy. It reasoned that statutory provision would override and will precede over any school policy. However, the Court also opined that the petition moved by the mother is clearly premature as no order has been passed yet on the application moved by Khanna.It added that the trial court would have to apply its mind to decide whether to summon her as a proposed accused or not..Meanwhile, the High Court also dismissed the petition moved by Khanna against the trial court’s decision to first issue a notice to the victim’s mother on her application.Khanna's contention was that there is no procedure for serving notice upon the proposed accused either under Section 319, CrPC, Section 193, CrPC or under Section 33 of the POCSO Act.Rejecting the argument as meritless, the Court opined that every case has its own facts and circumstances that may compel the court concerned to adopt a procedure not barred by law.“No doubt, it is true that Section 33 of the POCSO Act or Section 193 CrPC do not provide for serving a notice to the proposed accused, but at the same time, there is no such bar to serve a notice in the facts and circumstances of a particular case,” it added..The Court also reasoned that the proposed accused in the case is the mother of the victim and the complainant herself.She is also the victim, being the mother of a deceased child, the Court said, adding the trial court did not commit any illegality by deciding to provide her an opportunity of hearing first. “The Court still has to decide the application by applying its judicious mind in accordance with law. Consequently, this Court does not find any merit in the petition … filed by the principal Mrs. Surjeet Khanna,” it ordered, while dismissing the petitions..Senior Advocate Indira Jaising with Advocates Ganesh Sharma, Rohin Bhatt, Abhijeet Sharma represented the victim’s mother.Advocate Rajesh Lamba represented the accused Surjeet Khanna.Additional Advocate General Randhir Singh represented the State of Haryana.Advocate ADS Sukhija was an amicus curiae in the case..[Read Judgment]