Orissa High Court Quashes 'Strange' Order By POCSO Court Denying Bail To School Principal Booked In Bailable Offence

The Orissa High Court has quashed an order passed by a Special Court under the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') which denied bail to the Principal of a Higher Secondary School for failing to report alleged sexual harassment meted out to a minor female student by a Lecturer.While setting aside the impugned order, the Bench of Justice Gourishankar Satapathy expressed shock that despite the alleged offence under Section 21(2) of the POCSO Act being 'bailable' in nature, the Special Judge denied bail to the petitioner and sent him to custody. Being stupefied by the order, the Court observed –“It is strange, but true that despite making an in-depth analysis of facts and allegations raised against the petitioner, the learned trial Court has rejected the bail application of the petitioner and remanded him to custody. This Court therefore, has no other option left, but to quash the impugned order…”The petitioner was working as the Principal of a Higher Secondary School in the district of Jagatsinghpur. The victim-minor girl, who was a student at the time of occurrence, was subjected to sexual harassment by the prime-accused, who happened to be a Math Lecturer. On 15.01.2025, the victim girl had lodged one complaint before the petitioner to apprise him about harassment meted out to her. However, the petitioner allegedly suppressed the matter without reporting the same to the police. The victim took the matter before the Sub-Collector, Jagatsinghpur and due to his intervention, a zero FIR was lodged. Thereafter, the petitioner approached the High Court for grant of anticipatory bail, but the same was rejected directing him to surrender before the trial Court and move an application for regular bail. However, the regular bail application was also rejected by the ADJ-cum-Special Court under the POCSO Act, Jagatsinghpur, giving rise to this petition for bail under Section 483, BNSS.Senior Advocate Soura Chandra Mohapatra highlighted that the petitioner is accused of committing an offence under Section 21(2) of the POCSO Act, the maximum punishment of which is only one year. As per the Table-II appended to the first schedule of the BNSS, which deals with classification of offence against other laws, the offence is bailable in nature. Therefore, he argued that the Special Judge committed gross error in rejecting the bail for a bailable offence. Notably, Section 21(2) of the POCSO Act says that any person, being in-charge of any company or an institution (by whatever name it is 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. Section 19(1) mandates every person having knowledge of commission of offence under the Act or apprehending such commission to provide information to either the Special Juvenile Police Unit or the local police.As per Section 31 of the POCSO Act, the provisions of the CrPC (now BNSS), including the provisions as to bail and bonds, shall apply to the proceedings before a Special Court. Since the POCSO Act, despite being a self-contained code, does not classify the offences as bailable/non-bailable or cognizable/non-cognizable, the offences provided therein shall be classified as per the Table-II to the first schedule of the BNSS.The Court perused the Table-II appended to the first schedule of BNSS which clearly prescribes that if an offence is punishable with imprisonment for less than three years or with fine only, then such offence is bailable and non-cognizable. Accordingly, the Court was of the opinion that when the alleged offence against the petitioner under Section 21(2) was punishable with a maximum punishment of only one year, such offence is clearly a bailable one as per the aforementioned table. Thus, the Special Court erred in not granting bail to the petitioner when he was accused of a bailable offence.“From the materials placed on record and the specific allegation raised against the petitioner in this case, the culpability of the petitioner being for commission of offence only U/S. 21(2) of the POCSO Act which provides for maximum imprisonment of one year and with fine, the learned special Court should not have remanded the accused petitioner to custody by refusing bail to him, but the learned Special Court has failed to take notice of the allegation and erroneously remanded the petitioner to custody by refusing to grant bail in gross-violation of Article 21 of the Constitution of India,” it observed.Resultantly, the impugned rejection order was set aside and the trial Court was ordered to release the petitioner immediately on bail, notwithstanding the Court holidays, as he has been unjustly denied his constitutional right to be released on bail. Before parting, the Court also directed the Registrar General to a copy of the judgment to all the Courts dealing with offences under POCSO Act...

Orissa High Court Quashes 'Strange' Order By POCSO Court Denying Bail To School Principal Booked In Bailable Offence

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