POCSO Accused Not Entitled To Bail Merely On Ground Of Non-Compliance Of Section 35 : Karnataka High Court

Section 35 of the POCSO Act provides that the evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court. Further, Section 35 also lays down that the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence.

A division bench of Justice B V Nagarathna and Justice M G Uma, while deciding a reference, said "If for reasons beyond the control of the Special Court, the evidence of the child is not recorded within the period of thirty days of the Special Court taking cognizance of the offence, or if the trial itself is not completed within a period of one year from the date of cognizance of the offence, the same cannot lead to the accused being released on bail."

It added "The object and purpose of Section 35 of the POCSO Act is to ensure that the victim child is secured from the trauma of trial of the case at the earliest so that she or he could be rehabilitated and reintegrated into society at the earliest. The said provision is not to be interpreted in favour of the accused so as to mandate release of the accused, if for any reason, evidence is not recorded within a period of thirty days of taking cognizance of the offence or the Special Court not completing the trial within a period of one year from the date of taking cognizance of the offence."

The court also pointed out that the docket explosion under the POCSO Act is not commensurate with the sufficient number of Special Courts being constituted with the requisite human resources as well as infrastructure. It may be practically impossible for the trial court to conclude the trial within one year from the date of cognizance by the said Court in a majority of the cases. But, that does not give a right to the accused to seek bail for the reason that the mandate under Section 35 of the POCSO Act has not been completed.

The bench also has held that the statement recorded under Section 164 of Cr.P.C. cannot be considered to be evidence under Section 35 of the POCSO Act. It said "Section 164 of Cr.P.C., deals with recording of confessions and statements by any Metropolitan or Judicial Magistrate made to him in the course of an investigation, the same is relatable to Sections 25 and 26 of the POCSO Act. But, Section 35 of the POCSO Act does not deal with recording of statements of a child, but recording of evidence of the child and disposal of the case.

Going through the scheme and object of the of the POCSO Act the bench noted that "Section 35 of the POCSO Act, being under a special enactment, would prevail over the general provisions of Cr.P.C., particularly when there is any inconsistency between the said Section and Cr.P.C., as per the provisions of Section 42A of the POCSO Act."

The court held that "In our considered view, the same cannot be equated as one and the same. As already noted, a statement under Section 164 of Cr.P.C. is during the course of investigation or at any time afterwards before the commencement of the trial. But, the evidence recorded before the Special Court under Section 35 of the POCSO Act is during the course of the trial. The two cannot be equated and neither are they on the same plane."

Point of Reference:

A Single judge bench dismissed the petition filed by accused Hanumantha Mogaveera arrested under the POCSO Act, seeking bail. It was contended that as per Section 35(1) of POCSO Act evidence of the child had to be recorded within a period of thirty days of taking cognizance of the offence by the trial Court. If the same is not so recorded, the reasons for the delay has also to be recorded by the said Court. Further, as per Section 35(2) of the POCSO Act, the trial Court, having not completed the trial within a period of one year from the date of taking cognizance of the offences, petitioner/accused was entitled to be released on bail.

In that regard, reliance was placed on the order of this Court in the case of Vinay vs. State of Karnataka, represented by Special P.P. [Criminal Petition No.1195/2017 disposed on 13/07/2017].

The single judge single Judge on considering the order in the case of Vinay vs State of Karnataka relied upon by the petitioner/accused, observed that the expression "as far as possible" used in Section 35(2) of the POCSO Act has to be borne in mind and hence, doubting the order of the Court in Vinay, the reference was made. On merits, the court held that no case was made out to release petitioner/accused No.1 on bail and hence, the petition was dismissed.

Judgment in Vinayv/s State of Karnataka cannot be relied as a precedent for future cases.

The court held that any order passed by following the dictum in Vinay vs. State of Karnataka, represented by Special P.P. [Criminal Petition No.1195/2017 disposed on 13/07/2017], with regard to grant of bail to the accused on the premise there has been a delay in recording evidence or for that matter, non-conclusion of the proceedings within a period of one year from the date of taking cognizance by the Special Court, is 'not good law' and it cannot be a 'precedent for future cases."

It added "In the circumstances, we hold that the order passed in Vinay cannot be treated as a judicial precedent in future cases."