Section 21 POCSO Act Bailable, Pre-Arrest Bail Not Maintainable: Himachal Pradesh High Court

Justice Rakesh Kainthla observed,

“...a person accused of a bailable offence is entitled to bail as a matter of right. Therefore, the present petition is not maintainable and the same is dismissed.

The petitioner, Sushil Kumar, had sought pre-arrest bail in connection with FIR registered at Hamirpur. He was charged under Section 21 of the POCSO Act.

The prosecution alleged that Sushil Kumar, the manager of a hotel, was implicated for his failure to report a heinous crime committed on the premises. The main accused had reportedly committed multiple offenses, including rape, against a minor victim on various occasions.

Seeking pre-arrest bail in the matter, Mr. Devender K Sharma, representing Sushil Kumar, argued that Section 21 of the POCSO Act is a bailable offense, and the petitioner was unaware of the criminal activities. In contrast, Mr. R.P. Singh, Deputy Advocate General, contended that the gravity of the crime justified denying bail to the petitioner.

After considering the rival contentions the court pointed out that the POCSO Act does not explicitly specify the nature of the offense, necessitating a reference to the Code of Criminal Procedure. The court invoked Section 31 of the POCSO Act, directing attention to the CrPC's classification of offenses to determine the position on bail.

“Section 31 of the POCSO Act, provides that the provisions of Code of Criminal Procedure, 1973 will apply to the proceedings before a Special Court including the provisions as to the bail. Thus, the provisions of the Code of Criminal Procedure has to be seen to determine whether the offence is bailable or not”, the court recorded.

Observing that the classification of the offences under the CrPC clearly shows that if the offences are punishable with imprisonment for less than three years, the offences are bailable and non-cognizable. Hence Section 21 of the POCSO Act which provides a punishment of six months/1 year will be a bailable offence as per the Code, the bench underscored.

In order to cement the position being adopted the court cited M.H. Gangamaregowdavs State of Karnataka, 2020 (Karnataka) and XXX XXX and other vs State of Kerala, 2022 where a similar view had been taken on the issue.

Having said so the court pointed out the mandate to maintain a pre-arrest bail application under Sec 438 CrPC and asserted that since the petitioner accused under a bailable offence is entitled to bail as a matter of right, the instant petition is not maintainable.

It thus dismissed the petition.

Case Title: Sushil Kumar Vs State of Himachal Pradesh

Citation: 2023 LiveLaw (HP) 75

Click Here To Read/Download Judgment