Source: Kerala High Court 

Why in News? 

Justice A. Badharudeen has held that Sanction under Section 197 Criminal Procedure Code, 1973 (CrPC) [or Section 218 of Bharatiya Nagarik Suraksha Sanhita, 2023, (BNSS)] is not mandatory to prosecute a public servant for offenses under Section 21 read with Section 19 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).   

• The Kerala High Court has held that in the case of Dr Ditto Tom P. v. State of Kerala  (2025). 

What was the Background of the Dr Ditto Tom P. v. State of Kerala Case?  

• The case involves Dr. Ditto Tom P (Petitioner), aged 48, who is the 2nd accused in a criminal case and the revision petitioner in this proceeding. 
• The primary incident involves a minor female child, aged 13 years, who suffered aggravated penetrative sexual assault by a child in conflict with law on October 2 and 19th October 2020, resulting in her pregnancy. 
• The 1st, 3rd, and 4th accused allegedly had knowledge of this sexual assault but failed to report it to authorities and allegedly participated in conducting a miscarriage to eliminate evidence. 
• Dr. Ditto Tom P (2nd accused) treated the victim. During the 25th November visit, he allegedly learned about the pregnancy and the underlying POCSO Act offense. 
• Initially, when the victim and her mother visited the Petitioner, they reported an issue with menstruation. Later, the mother disclosed to the doctor that the girl was pregnant and had been taking homeopathic medicine to abort the pregnancy. 
• Despite gaining knowledge of a POCSO offense, the Petitioner allegedly failed to inform the police as required by law.  
• The Petitioner was charged under Section 21(1) read with Section 19(1) of the POCSO Act for failing to report the sexual offense despite having knowledge of it. 
• The Petitioner filed an application for discharge under Section 227 of CrPC, which was dismissed by the Special Judge, leading to this revision petition. 
• The case raises a legal question about whether a government servant accused of POCSO Act offenses requires sanction under Section 197 of the CrPC for prosecution. 
• The Trial Court dismissed Petitioner’s application for discharge under Section 227 of the CrPC. 
• The Trial Court held that the prosecution materials sufficiently established a prima facie case against Dr. Ditto Tom under Section 19(1) read with Section 21(1) of the POCSO Act to warrant framing of charges and proceeding to trial. 
• Aggrieved by the decision of the trial court the present revision petition has been filed by the petitioner before the Kerala High Court. 

What were the Court’s Observations? 

• The Kerala High Court made the following observations: 
  • On the Question of Sanction for Prosecution: 
    • Sanction under Section 197 of the CrPC (or Section 218 of BNSS) is not mandatory to prosecute a public servant for offenses under Section 21 read with Section 19 of the POCSO Act. 
    • The non-obstante clause in Section 19 of the POCSO Act specifically excludes the provisions of CrPC, making the sanction requirement inapplicable. 
    • The Court reasoned that when a statute imposes a duty upon a public servant, and omission of that duty falls within the POCSO Act under Section 19(1) and (2) read with Section 21, the non-obstante clause excludes the application of Section 197 CrPC. 
  • On Petitioner’s Criminal Liability: 
    • The Court found that the petitioner gained knowledge about the POCSO offense on 25th November 2020, when the victim's mother disclosed the pregnancy and attempted abortion. 
    • Despite this knowledge, the petitioner failed to report the matter to the police as mandated by Section 19(1) of the POCSO Act. 
    • This failure delayed the registration of the crime by approximately three weeks (until 12th December 2020), which could have impacted the investigation. 
    • The Court rejected the argument that Dr. Ditto's omission wasn't deliberate because he was acceding to the victim and her mother's request not to report. 
  • On Discharge Application: 
    • The Court found that the prosecution materials established a prima facie case against the petitioner warranting trial. 
    • The Court distinguished this case from other cases where quashment was allowed, noting that here there was a "deliberate omission" perceivable in the petitioner’s failure to report. 
  • Final Decision: 
    • The Court dismissed Revision Petition. 
    • The Court vacated the interim stay order. 
    • The Court directed the Registry to forward a copy of the order to the jurisdictional court for further steps. 
  • Implications for Doctor-Patient Relationship: 
    • The Court upheld the principle that the mandatory reporting obligation under POCSO overrides professional confidentiality considerations when it comes to sexual offenses against minors.

What is Section 19 of the POCSO Act?

• This section states the provisions regarding reporting of the offence as: 

19(1) Mandatory Reporting Obligation: 

• Application: Notwithstanding anything in Code of Criminal Procedure 
• Persons Obligated: Any person (including a child) 
• Threshold for Reporting: 
  • Apprehension that an offence is likely to be committed. 
  • Knowledge that an offence has been committed. 
• Designated Authorities: 
  • Special Juvenile Police Unit, or 
  • Local police. 

19(2) Documentation of Reports: 

• Entry Requirements: 
  • Ascription of entry number. 
  • Recording in writing. 
  • Reading over to the informant. 
  • Entry in Police Unit book. 

19(3) Child-Friendly Recording 

• Special Procedure: Recording in simple language. 
• Purpose: To ensure child understands contents being recorded. 

19(4) Language Assistance Provisions 

• Situations Requiring Translator/Interpreter: 
  • When language is not understood by child. 
  • Whenever deemed necessary. 
• Requirements for Translators/Interpreters: 
  • Qualifications and experience as prescribed. 
  • Payment of prescribed fees. 

19(5) Immediate Care and Protection 

• Threshold for Intervention: Police satisfaction that child needs care and protection. 
• Procedural Requirement: Recording reasons in writing. 
• Timeframe: Immediate arrangement within twenty-four hours. 
• Protection Options: 
  • Admission to shelter home. 
  • Admission to nearest hospital. 

19(6) Mandatory Referral to Authorities 

• Timeframe: Without unnecessary delay but within twenty-four hours. 
• Authorities to be Notified: 
  • Child Welfare Committee, and 
  • Special Court or Court of Session. 
• Content of Report: 
  • Details of the matter. 
  • Child's need for care and protection. 
  • Steps taken. 

19(7) Good Faith Protection 

• Immunity Granted: No liability (civil or criminal). 
• Protected Activity: Giving information in good faith. 
• Scope of Protection: For purpose of subsection (1).

Landmark Judgement

• State of Maharashtra v. Dr. Maroti (2022): 
  • The Supreme Court made these observations: 
    • "Prompt and proper reporting of the commission of offence under the POCSO Act is of utmost importance" and failure to report "would defeat the very purpose and object of the Act." 
    • The Supreme Court emphasized that timely reporting enables immediate examination of the victim and commencement of investigation without delay, which is crucial in sexual offense cases. 
    • The Court stated that medical evidence has significant corroborative value in sexual offense cases, highlighting the importance of prompt reporting to secure such evidence. 
    • The Supreme Court noted that provisions like Section 27(1) of the POCSO Act and Sections 164A and 53A of the CrPC, which deal with medical examination of victims and accused persons in sexual offense cases, underscore the importance of prompt reporting.