This article is written by Kushagra Varma, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.
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Children are an important section of the society who quite often suffer from various issues like hunger, poverty, illiteracy, physical and sexual abuse, etc. A child who lacks maturity is not able to decipher the experiences he goes through which can have a devastating effect on his life. While the Indian Constitution attempts to safeguard much of their issues through its various Fundamental Rights and Directive Principles of State Policy and there have been several international instruments, the same was not found for illicit sexual acts committed against children in India.
Before the year 2012, there was no specific and dedicated legislation in India which addressed sexual offences or sexual crimes against children. These cases would fall under the ambit of the Indian Penal Code with Sections that dealt with Rape (Section 375 & 376), Unnatural Offences (Section 377) or under Outraging the Modesty of a woman (Section 354).
But these provisions were found to be inadequate to prevent sexual crimes against children and keeping in account the increasing cases of sexual offences against children, a new and specific legislation was needed for the protection of children.
Protection of Children from Sexual Offences or commonly known as the POCSO Act came into force on 14th November, 2012. POCSO Act was formulated to protect children specifically from sexual offences and sexual crimes. It is a gender neutral Act which recognizes that even boys can be a victim of sexual violence, something which the Indian Penal Code fails to do. POCSO was enacted in reference to Article 15(3) of the Indian Constitution which says that States are free to make any special provision for children and women.
In this article, we aim to discuss certain aspects of POCSO with special emphasis on Section 35 of the Act and critically analyse why a POCSO accused cannot be released on default bail on non-compliance of Section 35 of the Act in light of recent judgments.
Aim and Scope of POCSO
The POCSO Act is a comprehensive statute which aims to provide protection to children from sexual offences like sexual assault including aggregative & non-aggregative, penetrative & non-penetrative sexual assault, sexual harassment and pornography while at the same time safeguarding the interest of the child at every judicial stage.
POCSO defines that any person who is below 18 years of age will be a child and such person would fall under the ambit of the Act.
A major hallmark of the POCSO Act is that it has children-friendly procedures which recognize the special needs of children in such complex situations. This includes everything from how the statement of the child should be recorded, to the medical examination conducted, to the designation of special child-friendly courts, etc. The Act aims to ensure that the child does not face any trauma during judicial proceedings and that the child gets properly rehabilitated into the society.
Rights given to a child in POCSO Act
There are several rights which are given to a child during pre-trial and trial stages of his case under the POCSO Act. These are mentioned in the preamble of the Act itself and are:
- Right to life and survival;
- Right to best interest of child- where a child’s interest will be given the priority;
- Right to be treated with dignity and compassion;
- Right to be protected from discrimination;
- Right to special preventive measures;
- Right to be informed about any assistance they are entitled to and be informed about; the progress of their case;
- Right to be heard and to express their views and concerns;
- Right to privacy;
- Right to safety;
- Right to compensation.
These are some of the rights which a child is guaranteed when he becomes a part of a judicial proceeding and all courts should uphold them.
Bail and default bail
We know that Bail is the temporary release of an accused person from custody who is awaiting his trial. Bail can be for two types of offences- bailable offences and non-bailable offences. Under bailable offence as given under Section 436 of the CrPC, the accused can ask for bail as a matter of right and he can seek bail directly from the police officer at the police station. The police however, do not have the power to grant bail to an accused for a non-bailable offence.
On the other hand, only the court can give bail to an accused for a non-bailable offence. The court can grant a bail for various reasons like insufficient evidence, nature & gravity of the offence, severity of the punishment, etc. It can put several conditions on the release of accused like the accused should not flee the state, contact the witness, tamper the evidence, produce a surety or any other condition the court may deem fit.
Under the Code of Criminal Procedure, 3 types of bail for non-bailable offences are provided to an accused:
- Bail under Section 437 of CrPC– It is granted by a court other than a High Court or Sessions Court when the accused is in custody. Usually, the Magistrate grants bail by using this Section.
- Bail under Section 438 of CrPC– It is known as anticipatory bail and can be applied for before the arrest of a person. Only the High Court or Court of Session has the power to grant an anticipatory bail.
- Bail under Section 439 of CrPC– This is a special power and only the High Court or a Court of Session can grant bail under this Section when the accused is in custody.
Apart from these, there is another type of bail which the accused can seek under certain circumstances. An accused, irrespective of the merits of the case against him, can be entitled for bail if the investigation pending against him is not completed within the stipulated or prescribed timeline. Bail on this ground is known as a default bail.
Section 167(2) of the Code of Criminal Procedure provides for the provision of default bail wherein an accused will be entitled to seek default bail if:
- Investigation against the accused is not completed within 90 days for a crime punishable with death, life imprisonment or sentence not less than 10 years, or
- Investigation against the accused is not completed within 60 days for any other offence.
The bail granted to the accused on this ground of non-completion of investigation within prescribed time limit is known as default bail. The apex court has held in several landmark judgments that this right to default bail is an indefeasible and a fundamental right of the accused.
Section 35 of POCSO Act
Section 35 enlists that normally evidence of child shall be recorded within 30 days of the Special Court taking cognizance of the offence and the Special Court should try to complete the trial of the case as far as within 1 year from the date of cognizance. And if there is a delay, it should be recorded in writing.
According to the concept of default bail, any delay in the investigation than the stipulated timeline would entitle the accused to bail. However, it has been held by the courts in many cases that the time frame provided by Section 35 is only to lay down an outline of a POCSO case. It is intended to aid expeditious disposal of POCSO cases and lessen the burden on Children Courts and Special Courts. But non-compliance of Section 35 of the POCSO Act cannot entitle an accused a right to default bail.
Why a POCSO accused cannot be released on default Bail on non-compliance of Section 35?
This issue was covered in the following cases-
Hanumatha Mogaveera Vs. State of Karnataka, Karnataka High Court, 2021 Crl. P No. 2951/2020
Recently the High Court of Karnataka comprising of a division bench of Justice B V Nagarthna and Justice M G Uma cited on the issue whether non-adherence of Section 35 of the POCSO Act the accused would be entitled to default bail. The following was held:
- If for uncontrollable reasons, evidence of child or the trial of the case could not be completed in the prescribed time period of Section 35 of the Act by the Special court, the same cannot be used a ground to release the accused on bail.
- It was further held by the court that the main aim of Section 35 of the Act is to ensure the victim child does not go through any trauma from the incident and that the child is securely rehabilitated into the society. An accused cannot take benefit of this Section merely because the investigation takes more than the stipulated time. This ground cannot go in the favor of the accused and mandate his release.
- Statements under Section 164 of the CrPC. which are recorded before the magistrate cannot be treated as evidence.
- If strict compliance of Section 35 is made then there would be every attempt made to delay the proceedings before the special court beyond the period of one year and seek release of the accused on bail. This was not the aim of the Act and the same should be discouraged the bench held.
- Another point which the court enunciated was that POCSO Act lacks sufficient number of courts which can try is cases. The inadequate infrastructure leads to large number of pending cases which may make it practically impossible for a court to commence a POCSO trial within one year from the date of cognizance. Hence, even if the time period given under Section 35 is not complied with the accused cannot be said to have a right to bail.
Mohiddin Vs. State of Karnataka, Karnataka High Court, 2017 Crl. P No. 5923/2017
Another case of Karnataka High Court where the counsel for the accused contended for bail on the ground that evidence of the victim was not completed in the mentioned 30 days and Section 35(1) was not duly complied with. The accused asked for default bail.
However, the court rejected this bail application and held that even though the evidence of the victim girl was not recorded in a period of 30 days but only on that ground it cannot be said that the entire case of the prosecution is to be disbelieved or it is to be brushed aside and bail order is to be granted to the petitioner. Even if, the evidence is not recorded within a period of thirty days, the concerned court has to record the reasons of the delay.
I completely agree with the view which has been taken by the Karnataka High Court in the above-mentioned cases. A POCSO accused should not be treated as a normal offender and the technicalities should not be the same as other laws. When a child is a victim of a crime and especially a sexual crime, a different approach needs to be taken to tackle the situation.
We should not forget that India is still a developing country and still lacks infrastructure to set up adequate numbers of courts. POCSO cases are tried by Special Courts which are limited in number. Thus it needs to be kept in mind that compliance of Section 35 cannot be seen a strict sense as the proceedings may not be able to be completed in the prescribed timeline.
While bail restores an accused person’s fundamental right to life and liberty, accused people of POCSO cases should only be entitled to bail if they have an actual case of innocence. If there is enough evidence to prove that the accused may not be guilty, he should be granted bail. But the concept of default bail wherein an accused gets bail just because the investigation of his case could not be completed in the stipulated time period, he should not be granted bail for POCSO cases.
The primary object of enacting POCSO was to safeguard the interest of a child who had been victim of any sexual offence. Yes, every accused should be heard fairly and impartially and every accused should be given a right to seek bail. However, solely because an investigation is not completed in a certain time period and Section 35 of POCSO is not complied with, default bail cannot be granted to an accused. If there are other reasons like insufficient evidence, nature of the offence, severity of punishment, etc, then bail can be granted.
But merely on the ground that investigation could not be completed in a specified time limit, it should not a ground for the accused to seek bail. Default bail should not be given as a matter of right in POCSO as it is under CrPC. It should be up to the discretion of the concerned court to examine the reasons for delay in investigation and see if a case is made for default bail or not.
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