Lizy Paul v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 29TH DAY OF JANUARY 2019 / 9TH MAGHA, 1940** ## **Crl.MC.No. 796 of 2019** **SC NO.746/2018 OF THE DISTRICT AND SESSIONS COURT NO.1, KASARAGOD (SPECIAL COURT UNDER POCSO ACT)** **CRIME NO. 565/2017 OF BEDAKOM POLICE STATION, KASARGOD** ## **PETITIONER/2ND ACCUSED:** **LIZY PAUL, AGED 50 YEARS, D/O.PAUL, HEADMISTRESS, NIRMALA UP SCHOOL CHEMPERI, NOW RESIDING AT MSMI CONVENT, ETTUPARA, NELLIKUTTY.P.O., THALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADVS. SRI.GRASHIOUS KURIAKOSE (SR.) SRI.GEORGE MATHEWS SRI.PRANOY K.KOTTARAM** ## **RESPONDENTS/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. COCHIN - 31.** ## **OTHER PRESENT:** **SRI T.R.RENJITH PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 796 of 2019 2 ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure ('the Code” for brevity). 2. The petitioner herein is the 2[nd] accused in S.C.No.746 of 2018 on the file of the District and Sessions Court No.I, Kasargod. In the aforesaid case, she is being proceeded against for having committed offence punishable under Sections 19(2) r/w. 21(2) of Protection of Children from Sexual Offences Act, 2012. 3. The 1[st] accused in the above case was working as a teacher in the Marypuram St.Mary's A.L.P School, Kasargod, wherein the petitioner herein was the Headmistress. According to the prosecution, the 1[st] accused committed sexual assault on several students in the course of taking classes. The children reported the incident to the class teacher, who in turn, alerted the petitioner. The allegation against the petitioner is that she failed to report the commission of the offence under sub-section (I) of Section 19 of the Act to the Special Juvenile Police Unit or to the local police and thereby committed the offence punishable under Section 19 (2) r/w Section 21 (2) of the Act. 4. The learned Senior counsel appearing for the petitioner submitted that initially when the FIR was registered, the petitioner Crl.MC.No. 796 of 2019 3 was not named as an accused. In the course of investigation, an additional report was submitted by which the petitioner was roped in as the 2[nd] accused. According to him, St Mary’s A.L.P. School is under the corporate management run by the Thalassery Arch Diocese and the Corporate Manager is the person in charge of the institution. The petitioner being a subordinate officer under the Corporate Manager, she is only bound to report the matter to the Corporate Manager, which she has done. The Corporate Manager visited the school and took statements of all concerned. Later, the class teacher advised the victim to report the incident to her parents. The Child Line authorities were then informed and the crime was registered. The learned Senior counsel would also place heavy reliance of the Kerala Educational Rules, 1959 and it was contended that all teachers are not the subordinates of the petitioner. In essence, the submission is that the proceedings against the petitioner is clearly an abuse of process of law and is liable to be quashed. 5. The learned Public Prosecutor refuted the submissions. According to the learned Public Prosecutor, Section 19 of the Act imposes an obligation to the petitioner to provide information to the law enforcement authority as and when she becomes aware or has Crl.MC.No. 796 of 2019 4 knowledge that an offence under Act 32 of 2012 has been committed. As the Headmistress of the school, she is statutorily bound to report the incident. The contention that Section 21(2) will not apply to the petitioner cannot be accepted. He would further contend that Section 21(1) of the Act will apply on all fours in the facts and circumstances. 6. I have considered the submissions advanced and have gone through the materials made available. 7. Section 19 of the Act is lucid and clear. It starts with a non obstante clause. It says that not withstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any person (including the child), who has apprehension that an offence under the Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to the Special Juvenile Police Unit or the local police. The procedure to be followed thereafter is also detailed. Section 21 has two limbs. Sub Clause (1) provides for punishment of a person who fails to report the commission of an offence under sub-section (1) of Section 19 or Section 20 or who fails to record such offence under sub-section (2) of Section 19. Sub clause (2) provides for punishment of any person, being in-charge of any company or an institution (by whatever name Crl.MC.No. 796 of 2019 5 called) fails to report the commission of an offence under sub-section (1) of Section 19 in respect of a subordinate under his control. 8. In the instant case, the prosecution records reveal that the 1[st] accused had subjected several children to sexual abuse. The children reported the incident to their teacher, who in turn, alerted the petitioner. She is alleged to have summoned all the children to the computer room and took their statements. The petitioner then passed on the news to the Corporate Manager, who visited the school. The father of the child who was abused also met the petitioner and lodged his complaint. It appears that the 1[st] accused went on leave thereafter. It was much later that the Child Line authorities were alerted and the crime was registered. 9. The contention that the petitioner is not the person incharge does not appeal to me. Every person, including the child, who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed is bound to report the incident. I am also not impressed with the contention of the petitioner that her duty is to report the matter to the corporate management and not to the authorities mentioned under Section 19 of the Act. The said provision was enacted to ensure Crl.MC.No. 796 of 2019 6 that crimes against children are reported promptly and no attempt is made to cover it up. 10. Now the question is whether the proceedings are liable to be quashed on the basis of the contentions advanced. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is, as to whether uncontroverted allegations as made in the complaint establish the offence. While exercising powers under Section 482 of the Code, this Court will have to refrain from analysing the materials which are yet to be adduced and seen in their true perspective. Power is to be used sparingly only in rare cases and should not be exercised to stifle a legitimate prosecution. I refrain from passing opinion on the merits of the allegations at this stage lest it affects the case of either the prosecution or the accused. 11. From a perusal of the materials on record and looking into the facts of the case, it cannot be said that no offence is made out against the petitioner herein. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in case of **R.P. Kapur v. State of Punjab** (AIR 1960 SC 866), **State of Haryana v. Bhajan Lal** (1992 SCC (Cr) 426), **State of Bihar v. PP** Crl.MC.No. 796 of 2019 7 **Sharma** (1992 SCC (Cr.) 192), **Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another** (2005 SCC (Cr.) 293) and more recently in **Tilly Gifford v. Michael Floyd Eshwar and Another** (AIR 2017 SC 3823). In view of the above, I see no justification in interfering with the proceedings at this stage. It will be up to the petitioner to seek discharge, if she is so advised, at the appropriate stage. This petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V.,** **JUDGE** IAP **//TRUE COPY// P.A.TO JUDGE** Crl.MC.No. 796 of 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE FIR IN CRIME NO.565/2017 OF BEDAKOM POLICE.** **ANNEXURE A2 THE STATEMENT OF THE VICTIM RECORDED BY THE POLICE ON 05/12/2017.** **ANNEXURE A3 A TRUE COPY OF THE SAID REPORT DATED 06/03/2018 BY THE ADHUR POLICE.** **ANNEXURE A4 A TRUE COPY OF THE CHARGE SHEET FILED IN CRIME NO.565/2017 OF BEDAKOM POLICE STATION BEFORE THE DISTRICT AND SESSIONS COURT NO.I, KASARGOD.** **ANNEXURE A5 A TRUE COPY OF THE WITNESS STATEMENT OF LAYONY JACOB(CW2) DATED 07/12/2017.** ## **RESPONDENTS' EXHIBITS:** NIL