Central Idea

In a recent decision, the Himachal Pradesh High Court ruled that the failure to report sexual crimes against minors is a bailable offence.
This ruling has raised significant legal questions regarding the interpretation of the Protection of Children from Sexual Offences (POCSO) Act, particularly with respect to the nature of the offence and its implications for pre-arrest bail.

What is the POCSO Act?

The POCSO Act came into effect on November 14, 2012, following India’s ratification of the UN Convention on the Rights of the Child in 1992.
Its primary objective is to address offences related to the sexual exploitation and abuse of children, which were previously either not specifically defined or inadequately penalized.
According to the Act, a child is defined as any person below the age of 18 years.
In 2019, the Act underwent a review and amendment, introducing more stringent punishments (after Nirbhaya Case), including the death penalty, for those committing sexual crimes against children.

Section 21 of POCSO Act: This section of the POCSO Act mandates the reporting of sexual offences against children. However, it does not explicitly specify whether the offence is bailable or not.
Reference to CrPC: The court, in its ruling, argued that since the POCSO Act does not provide clarity on the bailability of the offence, it should be determined by referring to the Code of Criminal Procedure (CrPC).
CrPC Classification: The CrPC classifies offences as either bailable or non-bailable based on the maximum punishment they entail. Offences punishable with imprisonment of less than three years are generally considered bailable and non-cognizable.
POCSO Act’s Penalty: Section 21 of the POCSO Act prescribes a penalty of imprisonment ranging from 6 months to 1 year. Consequently, this makes it fall within the category of bailable offences under the CrPC.

Allegations: The case in question involved a hotel manager accused of failing to report an offence committed against a minor, as mandated by Section 21 of the POCSO Act.
Main Accused: The main accused had committed a sexual assault on a minor schoolgirl and recorded a video of the incident in a hotel.
Legal Charges: The accused faced charges under Sections 376 (Rape) and 506 (Criminal Intimidation) of the Indian Penal Code, as well as Sections 6 and 21 of the POCSO Act, which address aggravated penetrative sexual assault and the failure to report sexual crimes against children.
Hotel Manager’s Involvement: The hotel manager was also named in the FIR due to the mandatory reporting provision under the POCSO Act.

Section 19: Section 19 of the POCSO Act obliges “any person” who apprehends or has knowledge of a sexual offence against a child to report it to the Special Juvenile Police Unit (SJPU) or the police.
Penalty for Non-Reporting: Section 21 of the POCSO Act prescribes a penalty, including imprisonment, for failing to report such offences.
Exemptions: Children are not held liable for failing to report sexual offences, and those making false complaints are also exempt from punishment under Section 22 of the Act.

The seriousness of Non-Reporting: The Supreme Court has consistently held that the failure to report such cases is a serious crime, emphasizing the importance of reporting child sexual abuse.
Specific Obligations: In certain cases, the Supreme Court has placed additional obligations on professionals, such as medical practitioners and educators, to report child sexual abuse cases to appropriate authorities.

SC’s Balance Attempt: In a recent case (X vs The Principal Secretary, Health and Family Welfare Department, Govt of NCT of Delhi), the Supreme Court sought to balance the mandatory reporting provision under POCSO with the confidentiality provision under the Medical Termination of Pregnancy Act, 1971.
Minors Seeking Medical Termination: The court recognized that minors may seek medical termination of pregnancies resulting from consensual sexual activity, and the mandatory reporting requirement might deter them from approaching qualified doctors.
Harmonious Interpretation: To ensure that minors’ rights to privacy and reproductive autonomy are protected, the court advocated for a harmonious interpretation of both the POCSO Act and the Medical Termination of Pregnancy Act.
Exemption for RMPs: The court suggested that registered medical practitioners, upon the request of minors and their guardians, can be exempted from disclosing a minor’s identity and personal details when reporting an offence under Section 19(1) of the POCSO Act or in any ensuing criminal proceedings.

The Himachal Pradesh High Court’s ruling on the availability of the failure to report sexual crimes against minors has sparked discussions on the interpretation of the POCSO Act and its alignment with the CrPC.
Furthermore, the Supreme Court’s efforts to strike a balance between mandatory reporting requirements and minors’ privacy rights underscore the complexity of addressing child sexual abuse within the legal framework.