POCSO Act, 2012
Section 21: Failure to Report or Record, and Mandatory Reporting by Professionals
The POCSO Act does not leave reporting to conscience. Section 19 makes it a duty for every person who knows of, or apprehends, an offence against a child; Section 20 extends it to the media and similar facilities; and Section 21 punishes those who stay silent, and police who fail to record. The duty reaches the doctor, the teacher, the counsellor and the head of an institution as much as anyone else, and no professional confidentiality excuses it. The only person the Act never punishes for silence is the child. This note covers Section 21 and its application to each profession.
The duty-bearers under Sections 19 to 21, and the penalty each faces
1. Section 21: The Provision
§ Section 21 (in substance) (1) Any person who fails to report the commission of an offence under Section 19(1) or Section 20, or who fails to record such offence under Section 19(2), shall be punished with imprisonment of either description which may extend to six months, or with fine, or with both. (2) Any person, being in charge of any company or an institution (by whatever name called), who fails to report the commission of an offence under Section 19(1) in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine. (3) The provisions of sub-section (1) shall not apply to a child under this Act. |
2. The Three Offences in Section 21
Offence | Who commits it | Punishment |
|---|---|---|
Failure to report | Any person bound by s. 19(1) who knows of or apprehends an offence; any media, hotel, lodge, hospital, club, studio or photographic personnel bound by s. 20 | Up to six months, or fine, or both |
Failure to record | The SJPU or local police officer who receives a report and does not record it as s. 19(2) requires | Up to six months, or fine, or both |
Failure of the person in charge | The head of a company or institution who fails to report an offence committed by a subordinate under his control | Up to one year AND fine |
3. Failure to Record a POCSO Case
§ What the police must do, and why failure is an offence • Section 19(2) requires every report to be given an entry number, recorded in writing, read over to the informant, and entered in a book kept by the police unit. • Failure to record is often the first point at which a case is lost: the complaint is discouraged, delayed, or diverted into a compromise. Section 21(1) makes that failure a crime. • The duty is immediate. The police cannot hold a preliminary inquiry into whether the allegation is true before recording it; the investigation follows the recording. |
4. The Liability of the Person in Charge
§ Section 21(2): institutions cannot protect their own The target is the institution that learns of abuse by one of its staff and suppresses it to protect its reputation: a school, a hostel, a children's home, a hospital, a sports academy, a company. The person liable is the one in charge, such as the principal, warden, director or manager, who fails to report an offence by a subordinate under his control. The heavier punishment, up to one year and fine, reflects the gravity of institutional cover-up. Knowledge. Liability depends on the person in charge having knowledge of, or apprehension about, the offence; the question is what he knew and what he did about it. |
5. Doctors
§ Mandatory reporting in medical practice • When the duty arises. A doctor who learns of an offence against a child, on examining an injured child, a pregnant minor, or a minor with a sexually transmitted infection, is bound by Section 19(1). • The hospital as an institution. Under Section 20, hospital personnel who come across material sexually exploitative of a child must report; and under Section 21(2), the head of the hospital answers for a failure to report an offence by a subordinate. • State of Maharashtra v. Dr. Maroti (2022). The Supreme Court held that a doctor's failure to report sexual assaults on minor girls of which he had knowledge was a serious matter under Section 21, not a technical lapse, and that proceedings for it should not have been quashed. • Medical care first. The duty to report does not delay care; Rule 6 of the POCSO Rules requires emergency treatment without any legal formality. |
6. Teachers and Schools
§ The school as the front line • Teachers are often the first to notice changes in behaviour, injuries or disclosures, and are bound by Section 19(1) like anyone else. • The principal is liable under Section 21(2) for failing to report an offence by a member of staff under his control. • Rule 3 of the POCSO Rules, 2020 requires schools to conduct police verification of staff, adopt a child protection policy, and provide age-appropriate safety education, so that reporting sits within a wider system of prevention. • Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546. The Supreme Court emphasised that institutions, including schools and hospitals, which learn of sexual abuse of a child must report it and cooperate with the police, and that their silence enables the abuse to continue. |
7. Counsellors and Other Professionals
i. Psychologists, counsellors and social workers frequently hear disclosures in confidence. Section 19(1) binds them, and a child's request for secrecy does not release them from it.
ii. Coaches, tutors, and religious teachers who learn of abuse are equally bound, and heads of their organisations are within Section 21(2).
iii. The good practice is to explain to the child, before the disclosure is complete where possible, that the professional cannot keep abuse secret, and to report in a way that protects the child's identity and continuing care.
8. Mandatory Reporting and Professional Confidentiality
§ Confidentiality yields, but the reporter is protected Section 19(1) applies notwithstanding the Code of Criminal Procedure, and no professional duty of confidentiality in medicine, counselling or teaching overrides it. Section 19(7) protects anyone who gives information in good faith from civil and criminal liability, including claims for breach of confidence. The balance with privacy is struck in how the report is made. In X v. Principal Secretary, Health and Family Welfare Department (2022), the Supreme Court held that a doctor reporting a minor's pregnancy need not disclose her identity where she and her guardian seek a lawful termination. What is reported stays protected. Sections 23 and 33(7) keep the child's identity out of the public domain. |
9. Frequently Asked Questions
What is the punishment for failing to report a POCSO offence?
Under Section 21(1), imprisonment up to six months, or fine, or both. A person in charge of a company or institution who fails to report a subordinate's offence faces up to one year and fine under Section 21(2).
Can a police officer be punished for not recording a POCSO complaint?
Yes. Failure to record a report as Section 19(2) requires is an offence under Section 21(1).
Are doctors bound to report?
Yes. Section 19(1) binds every person, including doctors, and the Supreme Court in Dr. Maroti treated a doctor's failure to report as a serious matter.
Does professional confidentiality excuse non-reporting?
No. Section 19(1) applies notwithstanding the Code, and Section 19(7) protects a good-faith reporter from civil and criminal liability.
Can a child be punished for not reporting?
No. Section 21(3) excludes a child from Section 21(1).