not to commit rape of a minor amounts to 'aiding' under POCSO

MP High Court: Simply requesting the accused not to commit rape of a minor amounts to ‘aiding’ under POCSO

In the matter of Smt. Mamta Tiwari Vs. State of MP & anr, the Madhya Pradesh High Court on 02.09.2021 observed that instead of informing the local police, the act of merely requesting the accused not to commit rape of a minor would amount to the act of aiding as defined and punished under Sections 16 and 17 of the POCSO Act.

Facts –

The Applicant (Mamta Tiwari), who was working as a Counsellor of Ashram Shanti Niketan Balika Grih, Gwalior, found out from a mentally retarded minor, who was staying in the Ashram, that she was continuously being raped by a Baba. The applicant, instead of taking any action against the co-accused Jain Baba, simply requested him not to do the said act.

During the course of the investigation, it was found that the applicant/Woman was aware of the physical violation of the minor prosecutrix and consequently, the Trial Court framed charges against the Applicant under Sections 16 (Abetment of an offence) and 17 (Punishment for abetment) of POCSO Act.

Sections 16 and 17 of POCSO Act read as under: –

“16. Abetment of an offence. – A person abets an offence, who-

First. -Instigates any person to do that offence; or

Secondly. – Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that offence; or

Thirdly. -Intentionally aids, by any act or illegal omission, the doing of that offence.

17. Punishment for abetment. – Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence.

The allegation against the applicant is that she was a counsellor, and it was her duty to ensure the security of the girls as well as to counsel them. Despite of getting the knowledge about the misdeeds of co-accused Jain Baba, she did not take any action. Under Section 19(1) of the POCSO Act (which states that any person who has apprehension that an offence under POCSO Act is likely to be committed or has knowledge that such an offence has been committed, shall provide such information); it was her duty was to inform the Special Juvenile Police Unit or the local police. The Court observed that “When the applicant had already seen the co-accused (Baba) with the prosecutrix (victim girl) and the prosecutrix has specifically alleged that she was being ravished by the co-accused and instead of informing the local police, it is alleged that the applicant had simply requested the co-accused not to indulge himself in such an act, then it would certainly come within the definition of abetment as the act of the applicant amounts to aiding the co-accused for doing the act of rape on the prosecutrix

Consequently, considering the totality of the facts and circumstances of the case, the Court opined that at present, it cannot be said that there is  no sufficient material to frame the charge against the applicant and therefore the petition was dismissed.

– Vaishali Jain, Advocate & Associate – Child Safety at Work

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