DR. SR. TESSY JOSE AND OTHERSversusSTATE OF KERALA

                         [2018] 9 S.C.R. 479                            479


              DR. SR. TESSY JOSE AND OTHERS                             A
                                 v.
                       STATE OF KERALA
                 (Criminal Appeal No. 961 of 2018)
                         AUGUST 01, 2018                                B
         [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
                                                                        C
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         D
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
                                                                        E
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        F
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.                       G
      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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                                 479
480            SUPREME COURT REPORTS                      [2018] 9 S.C.R.


A     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
B
      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
C     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
D
      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
E     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
F     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
G     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
H     circumstances that an offence has been committed. Accordingly,
  DR. SR. TESSY JOSE AND OTHERS v. STATE OF KERALA                           481


there is no evidence to implicate the appellants. [Paras 9, 13 and           A
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
                                                                             B
      [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.                           C
      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.                                             D
      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.                                                        E
      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.                                        F
      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.
                                                                             G
       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.
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482             SUPREME COURT REPORTS                            [2018] 9 S.C.R.


A     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
B     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
C     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
D     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
E     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
F           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.
G
            (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
H                   Police Unit.
  DR. SR. TESSY JOSE AND OTHERS v. STATE OF KERALA                              483
                     [A. K. SIKRI, J.]

      (3) Where the report under sub-section (I) is given by a child, the       A
      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      B
      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        C
      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       D
      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.
                                                                                E
      (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       F
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
                                                                                G
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
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484                SUPREME COURT REPORTS                        [2018] 9 S.C.R.


A     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.
B
      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
C     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
D     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
E     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
F     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
G     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.
H     1
          (2004) 11 SCC 576
  DR. SR. TESSY JOSE AND OTHERS v. STATE OF KERALA                              485
                     [A. K. SIKRI, J.]

       11. Appellant no. 2 had not even examined the victim and was not         A
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        B
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.
                                                                                C
       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         D
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.

                                                                                E
Divya Pandey                                                 Appeals allowed.




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