DR. SR. TESSY JOSE AND OTHERS versus STATE OF KERALA
[2018] 9 S.C.R. 479, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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DR. SR. TESSY JOSE AND OTHERS
v.
STATE OF KERALA
(Criminal Appeal No. 961 of 2018)
AUGUST 01, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
Protection of Children from Sexual Offences Act, 2012 –
s.19(1) r/w. s.21(1) – Prosecution case was that victim was raped
when she was minor – As a result, she became pregnant and
thereafter delivered a child in hospital – A case was registered
against the appellants u/s. 201 r/w. s.34 and s.19(1) r/w. s.21(1) of
POCSO Act – Appellant nos. 1 & 2 were medical practitioners and
appellant no.3 was a Hospital administrative – Allegation was that
when victim was brought to the hospital her age was recorded as 18
years and appellants ought to have gathered that at the time of
conception she was less than 18 years, and informed relevant
authorities, which they failed to do – Held: u/s.19(1) of the Act
there is no obligation on the person to investigate and gather
knowledge – The medical records showed that appellant no.1
attended victim first time when the child was delivered and records
stated she was 18 years of age at that time – Appellant no.1 did not
know that the victim was minor when she had sexual intercourse –
Appellant no.2 had not even examined the victim and had just
advised that child be given to the mother – Appellant no.3, being
the administrator of the hospital it was not possible for her to be
aware of the details of each patient – The knowledge requirement
foisted on the appellants cannot be that they ought to
have
deducted from circumstances that an offence has been committed –
No evidence to implicate the appellants – Thus, proceedings against
appellants quashed – Penal Code 1860 – s.201 r/w. s.34.
Words and Phrases – Knowledge – Meaning of.
Allowing the appeals, the Court
HELD: 1. What is alleged against the appellants is that they
had the knowledge that an offence under the Protection of
Children from Sexual Offences Act, 2012 had been committed
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and, therefore, they were required to provide this information to
the relevant authorities which they failed to do. As per the material
collected by the prosecution and filed in the Court, no such case
is made out.  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 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. 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.  It would not be possible for
appellant no. 3 to be aware of the circumstances surrounding the
admission of the victim. [Paras 7, 8 and 12] [483-G-H; 484-A-B;
485-B-C]
3.  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, 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) of
the POCSO Act,  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.  The knowledge requirement foisted
on the appellants cannot be that they ought to have deduced from
circumstances that an offence has been committed. Accordingly,
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there is no evidence to implicate the appellants. [Paras 9, 13 and
14] [484-D-E; 485-B-C]
A S Krishnan and Others v. State of Kerala (2004) 11
SCC 576 : [2004] 3 SCR 44 – referred to.
Case Law Reference
[2004] 3 SCR 44
   referred to
Para 10
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 961 of 2018.
From the Judgment and Order dated 20.12.2017 of the High Court
of Kerala at Ernakulam in Crl. MC No.5129 of 2017.
Basant R.,  K.N. Balagopal, Sr. Adv., Dr. Harshvir Pratap Sharma,
Pankaj Kumar, Raghenth Basan, Mithun Verghish, Ms. Namita Wahi,
Ms. Liz Mathew, Vipin Nair, P.B. Suresh, Abhay Pratap Singh,
A.P. Mukundan, Anshumaan Bahadur, Karthik Jayshankar, Vipin Nair,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
A. K. SIKRI, J.  1. 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.”
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.
DR. SR. TESSY JOSE AND OTHERS v. STATE OF KERALA
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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 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;
  (c) shall be entered in a book to be kept by the
       Police Unit.
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(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 twenty-four 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.
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
DR. SR. TESSY JOSE AND OTHERS v. STATE OF KERALA
[A. K. SIKRI, J.]
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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, 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 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.
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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.
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.
Divya Pandey
                               Appeals allowed.
DR. SR. TESSY JOSE AND OTHERS v. STATE OF KERALA
[A. K. SIKRI, J.]