HC grants relief to doctor accused under POSCO Act for not informing police about offence within time-limit, says Doctors should get reasonable time
Kerala HC Observations on Granting Protection to Nurses in Medical Negligence Cases
Ernakulam: Granting relief to a doctor accused under the POSCO Act, the Kerala High Court recently reiterated that as per Section 19(1) of the POCSO Act, every person has to inform the police about the offences or apprehension of offences committed against a minor "within a reasonable time".
Further, the Court clarified that to fasten criminal culpability upon a person for failure to report to the Police regarding the commission of an offence under the POCSO Act and to make a commission to the report the same, there must be a deliberate omission to be gathered from the records.
With this observation, the HC bench recently granted relief to a doctor who was accused under Section 19(1) of the POCSO Act of failing to inform the Special Juvenile Justice Police or local police about the offence committed against a minor, despite having an apprehension that an office had been committed.
Referring to the busy nature of the work of the doctors, the HC bench opined that doctors should be given "reasonable time" to inform such incidents to the Police.
The petitioner doctor failed to inform about the pregnancy of a minor girl, within a period of 7.15 hours from the time of his knowledge, and by that time, the Police reached the hospital and soon crime was registered. On this, the HC bench of Justice A. Badharudeen held that criminal culpability could not be imposed upon the doctor under Section 19(1) of the POCSO Act.
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"Therefore, reasonable time should be given to the doctors to inform such incidents to the Police. Viewing the duties of a doctor in this plank, in the instant case, the doctor failed to inform about pregnancy of a minor girl, within a period of 7.15 hours from the time of his knowledge, by the time, Police reached the hospital and soon crime was registered. In such a case, can criminal culpability to be imposed upon the doctor is the relevant question? The answer to the said question is; definitely ‘no’, because he did not get a reasonable time to inform the matter to the Police, since the matter already informed by another doctor and on the said information, Police reached the hospital and registered crime," the bench observed.
In this case, the victim was a 17-year-old minor who was taken to a hospital in Mangalapuram for an abortion by her father who was allegedly responsible for the pregnancy. Allegedly, the petitioner doctor was aware of the victim's pregnancy from her scan report. The victim was allegedly admitted to the hospital and a tablet was administered to abort the pregnancy by the 3rd accused.
The allegation against the doctor was that even after obtaining the scan report and having knowledge regarding the pregnancy of the minor victim, the same was not informed by the 2nd accused to the Police and therefore, the doctor committed an offence punishable under Section 19(1) of the POCSO Act.
Approaching the HC bench seeking relief, the counsel for the petitioner submitted that when the victim reached the hospital along with her father, the 2nd accused was advised to have a urine test and blood test and the same in no way indicated pregnancy. It was further argued that the prosecution failed to produce any documents or materials to show that the 2nd accused had apprehension regarding the commission of an offence under the POCSO Act or had knowledge that such an offence had been committed. Thus, it was argued that the 2nd accused could not be penalized for the offence under Section 19(1) of the POCSO Act.
On the other hand, the Public Prosecutor submitted that the blood test report showed that the age of the victim was 17 years. Therefore, the petitioner had the knowledge as contemplated under Section 19(1) of the POCSO Act. Therefore, the impugned order did not require any interference.
"In this matter, in fact, in the blood report nothing stated suggesting pregnancy. It is discernible from the witness statement of CW10 that she had conducted scanning test of the minor and according to her, on knowing the pregnancy of the minor, aged 17 years, the same was informed to the Hosdurg Police on 21.04.2022 at about 7.00 pm. Later, when the victim was in *** Nursing Home on 22.04.2022 the Police reached there and brought the victim and father to the Police Station and FIR also registered on 22.04.2022 itself," noted the High Court.
"Therefore, the time gap between the arrival of the victim at *** Hospital with the scan report and the arrival of the Police on 22.04.2022 is in between 11.45 am and 7.00 pm. In such a case, it could not be held that the petitioner herein willfully failed to report the matter, since the Police reached the hospital within 7.15 hours, while the victim was still at the hospital," the Court observed.
Referring to the POCSO Act, the HC bench reiterated that under Section 19(1) of the Act, a duty is cast upon a person, who has an apprehension that an offence under this Act was likely to be committed or had the knowledge that such an offence had been committed, to provide such information to the police.
However, at this outset, the Court clarified that when a person notices that an offence under the POCSO Act has been committed and fails to inform the same "within a reasonable time", he definitely said to have committed an offence punishable under Section 19(1) of the POCSO Act.
"Failure to inform the matter within a period of 7.15 hours alone is not sufficient to hold that there was failure to report the same to the Police. In may view, in order to fasten criminal culpability upon a person for failure to report to the Police regarding commission of offence under the POCSO Act and to make omission to report the same, as an offence punishable under Section 19(1) of the POCSO Act, there must be a deliberate omission to be gathered from the records," the Court opined in this context.
Explaining the busy nature of work of the medical professionals, the Court observed,
"It is to be born in mind that, doctors are persons engaged in treating patients of multiple numbers, including patients who would require urgent attention, to save their lives. Say for instance, if a Gynecologist is at the out patient department, a minor girl (a victim of of POCSO Act crime) meets him with medical reports showing that she is pregnant, naturally a duty is cast upon the doctor to inform the same to the Police in terms of Section 19(1) of the POCSO Act."
"Suppose, at the time when the doctor notices the pregnancy of a minor girl, he gets a call from the ward that a pregnant lady would require urgent cesarean, it is his primary duty to attend the said surgery, so as to save the lives of the pregnant lady as well as the child in the womb. So, the doctor could return back only after the surgery, which may sometimes take hours. If the doctor could have to attend another urgent cesarean thereafter, then also he could not get much time to inform about the pregnancy of a minor girl, soon after getting knowledge regarding the same. Therefore, reasonable time should be given to the doctors to inform such incidents to the Police," it further noted.
According to the High Court bench, in order to attract Section 19(1) of the POCSO Act, at least 24.00 hours should be given to inform about such offences to the police.
"In my view, if there is omission even after getting information to report the same to the Police after 24.00 hours atleast, the offence punishable under Section 19(1) of the POCSO Act would get attracted. If the omission is only for a period less than 24.00 hours, similar to 7.15 hours in the present case, fastening criminal culpability on the doctor for the said short omission could not be justified," the Court noted.
Therefore, the Court granted relief to the doctor accused under Section 19(1) of the POCSO Act while noting, "In this case, by the time, CW10, who conducted scanning test informed the pregnancy of the minor victim to the Police and the Police reached the hospital and crime was registered, without any delay. In such a case, the 2 nd accused, who only advised the minor victim to have blood and urine tests and also had occasion to see the scan report after 11.45 am, could not said to have committed any willful omission in reporting the matter to the Police in tune with the mandate of Section 19(1) of the POCSO Act. In such view of the matter, I am of the view that there is no materials to show willful omission on the part of the petitioner/2nd accused informing the crime as alleged, to rope the petitioner into this crime."
"Thus, the impugned order dismissing discharge plea at the instance of the 2nd accused/revision petitioner herein is found to be erroneous and the same stands set aside," it further mentioned.
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/kerala-hc-pocso-244616.pdf
