Sections 201 read with Section 34 of the Indian Penal Code (for short, ‘IPC’), Section 19(1) read with Section 21(1) of POCSO Act and Section 75 of the Juvenile Justice Act.= Appellant no. 1 is a 66 years’ old lady who is a Gynecologist and had conducted the delivery. Appellant no. 2 is a Paediatrician who had attended to the baby of the victim after the delivery. Appellant no. 3, is a 69 years’ old Hospital Administrative. She is roped-in in that capacity though she did not attend to the victim or the baby.- It is not the case of the prosecution that these appellants had any knowledge about the alleged rape of the victim allegedly committed by accused No. 1 at any time earlier. In fact, they did not come into picture before 7th February, 2017 when the victim was brought to the hospital. However, the charge against these appellants is primarily on account of purported commission of an act under Sections 19(1) of POCSO Act.= Evidence should be such which should at least indicate grave suspicion. Mere likelihood of suspicion cannot be the reason to charge a person for an offence.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 961 OF 2018

[ARISING OUT OF SLP (CRL.) NO. 3712 OF 2018]

DR. SR. TESSY JOSE AND OTHERS …..APPELLANT(S)

VERSUS

STATE OF KERALA …..RESPONDENT(S)

J U D G M E N T

A.K.SIKRI, J.

After hearing this matter on 1st August, 2018, following order

was passed:

“Leave granted.

We have heard the arguments.

We are informed that the trial is in progress today

before the trial court. Since, there is not enough time to

dictate the judgment, we are allowing this appeal so that

the decision is conveyed to the trial court. Reasons to

follow.

A copy of this order may be provided to the counsel

for the parties.”

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2. We are now stating our reasons which led us to allow the appeal

of the appellants.

3. First Information Report under the provisions of Protection of

Children from Sexual Offences Act, 2012 (For short, POCSO Act)

has been registered in which charge sheet has been filed and the

case registered as Sessions Case No. 460 of 2017 is pending

before the Special Judge, Ernakulam. The appellants herein are

arrayed as accused nos. 3, 4 and 5. Insofar as the appellants are

concerned, allegations against them are under Sections 201 read

with Section 34 of the Indian Penal Code (for short, ‘IPC’),

Section 19(1) read with Section 21(1) of POCSO Act and Section

75 of the Juvenile Justice Act.

4. The case of the prosecution, in brief, is that accused no. 1 had

raped the victim when she was a minor in the year 2016. As a

result, she became pregnant. As per victim’s mother, when the

victim started complaining about pain in her stomach, thinking it

to be some problem related to stomach, she brought her to the

hospital where the appellants were working, on 7th February,

2017. It was found that the victim was in advance stage of

pregnancy. In fact, soon after she was brought to the hospital,

she went into labour. She delivered the child. Insofar as the

Criminal Appeal No. 961 of 2018 [ @SLP(Crl.) No. 3712 of 2018] Page 2 of 8

appellants are concerned, their role is that they attended to the

victim. Appellant no. 1 is a 66 years’ old lady who is a

Gynecologist and had conducted the delivery. Appellant no. 2 is

a Paediatrician who had attended to the baby of the victim after

the delivery. Appellant no. 3, is a 69 years’ old Hospital

Administrative. She is roped-in in that capacity though she did

not attend to the victim or the baby.

5. It is not the case of the prosecution that these appellants had any

knowledge about the alleged rape of the victim allegedly

committed by accused No. 1 at any time earlier. In fact, they did

not come into picture before 7th February, 2017 when the victim

was brought to the hospital. However, the charge against these

appellants is primarily on account of purported commission of an

act under Sections 19(1) of POCSO Act. This Section reads as

under:

“Section 19 (I) Notwithstanding anything contained in the

Code of Criminal Procedure, 1973, any 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, he shall provide such

information to—

(a) the Special Juvenile Police Unit; or

(b) the local police.

(2) Every report given under sub-section(I) shall be–

(a) ascribed an entry number and recorded in writing;

(b) be read over to the informant;

Criminal Appeal No. 961 of 2018 [ @SLP(Crl.) No. 3712 of 2018] Page 3 of 8

(c) shall be entered in a book to be kept by the

Police Unit.

(3) Where the report under sub-section (I) is given by a

child, the same shall be recorded under Section (2) in a

simple language so that the child understands contents

being recorded.

(4) In case contents are being recorded in the language not

understood by the child or wherever it is deemed

necessary, a translator or an interpreter, having such

qualifications, experience and on payment of such fees as

may be prescribed, shall be provided to the child if he fails

to understand the same.

(5) Where the Special Juvenile Police Unit or local police is

satisfied that the child against whom an offence has been

committed is in need of care and protection. then, it shall,

after recording the reasons in writing make immediate

arrangement to give him such care and protection

(including admitting the child into shelter home or to the

nearest hospital) within twenty-four hours of the report, as

may be prescribed.

(6) The Special Juvenile Police Unit or local police shall,

without unnecessary delay but within a period of twentyfour

hours, report the matter to the Child Welfare

Committee and the Special Court or where no Special

Court has been designated, to the Court of Session,

including need of the child for care and protection and

steps taken in this regard.

(7) No person shall incur any liability, whether civil or

criminal, for giving the information in good faith for the

purpose of sub-section (1).”

6. As is clear from the aforesaid provision, a person who had an

apprehension that an offence under the said Act is likely to be

committed or has knowledge that such an offence had been

committed would be required to provide such information to the

relevant authorities.

Criminal Appeal No. 961 of 2018 [ @SLP(Crl.) No. 3712 of 2018] Page 4 of 8

7. Thus, what is alleged against the appellants is that they had the

knowledge that an offence under the Act had been committed

and, therefore, they were required to provide this information to

the relevant authorities which they failed to do.

8. After going through the record and hearing the counsel for the

parties, we are of the opinion that no such case is made out even

as per the material collected by the prosecution and filed in the

Court. The statement of the mother of the victim was recorded by

the police. The statement of the victim was also recorded. They

have not stated at all that when the victim was brought to the

hospital, her mother informed the appellants that she had been

raped by the accused no. 1 when she was a minor. Admittedly,

the victim was pregnant and immediately went into labour. In

these circumstances, it was even the professional duty of

Appellant No. 1 to attend to her and conduct the delivery, which

she did. Likewise, after the baby was born, the Appellant No. 2

as a Paediatrician performed her professional duty.

9. The entire case set up against the appellants is on the basis that

when the victim was brought to the hospital her age was recorded

as 18 years. On that basis appellants could have gathered that at

the time of conception she was less than 18 years and was, thus,

Criminal Appeal No. 961 of 2018 [ @SLP(Crl.) No. 3712 of 2018] Page 5 of 8

a minor and, therefore, the appellants should have taken due

care in finding as to how the victim became pregnant. Fastening

the criminal liability on the basis of the aforesaid allegation is too

far fetched. The provisions of Section 19(1), reproduced above,

put a legal obligation on a person to inform the relevant

authorities, inter alia, when he/she has knowledge that an offence

under the Act had been committed. The expression used is

“knowledge” which means that some information received by

such a person gives him/her knowledge about the commission of

the crime. There is no obligation on this person to investigate

and gather knowledge. If at all, the appellants were not careful

enough to find the cause of pregnancy as the victim was only 18

years of age at the time of delivery. But that would not be

translated into criminality.

10. The term “knowledge”has been interpreted by this Court in AS

Krishnan and Others v. State of Kerala1

to mean an awareness

on the part of the person concerned indicating his state of mind.

Further, a person can be supposed to know only where there is a

direct appeal to his senses. We have gone through the medical

records of the victim which were referred by Mr. Basant R., Senior

Advocate for the appellants. The medical records, which are

1 (2004) 11 SCC 576

Criminal Appeal No. 961 of 2018 [ @SLP(Crl.) No. 3712 of 2018] Page 6 of 8

relied upon by the prosecution, only show that the victim was

admitted in the hospital at 9.15 am and she immediately went into

labour and at 9.25 am she gave birth to a baby. Therefore,

appellant no. 1 attended to the victim for the first time between

9.15 am and 9.25 am on 7th February, 2017. The medical records

of the victim state that she was 18 years’ old as on 7th February,

2017. Appellant no. 1 did not know that the victim was a minor

when she had sexual intercourse.

11. Appellant no. 2 had not even examined the victim and was not in

contact with the victim. As per the medical records relied upon by

the prosecution, the baby was attended to by appellant no. 2 at

5.30 pm on 7th February, 2017. He advised that the baby be

given to the mother. Therefore, appellant no. 2 had no occasion

to examine/treat the victim.

12. Appellant no. 3 had not come in contact with the victim or the

baby at all. Being the administrator of the hospital it was not

possible for her to be aware of the details of each patient.

Considering that the victim was brought to the said hospital for

the first time on 7th February, 2017, it would not be possible for

appellant no. 3 to be aware of the circumstances surrounding the

admission of the victim.

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13. The knowledge requirement foisted on the appellants cannot be

that they ought to have deduced from circumstances that an

offence has been committed.

14. Accordingly, we are of the view that there is no evidence to

implicate the appellants. Evidence should be such which should

at least indicate grave suspicion. Mere likelihood of suspicion

cannot be the reason to charge a person for an offence.

Accordingly, these appeals are allowed and the proceedings

against the appellants in the aforesaid Sessions Case No. 460 of

2017 are hereby quashed.

………………………………………J.

(A.K. SIKRI)

………………………………………J.

(ASHOK BHUSHAN)

NEW DELHI;

AUGUST 01, 2018.

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