Kar HC │ Can the statement recorded under Section 164 of Cr.PC be considered to be evidence under Section 35 of the POCSO Act? Whether the accused is entitled to bail in case the mandate under Section 35 of the POCSO Act has not been completed?

Karnataka High Court: A Division Bench of B. V. Nagarathna and M.G. Uma JJ. held that the accused does not have a right to seek bail for the reason that the mandate under Section 35 of the POCSO Act has not been completed.

The facts of the case are such that the victim, Kum Panchami was residing at Spoorthi Adoption and Fit Institution where she was given in adoption but because of some differences between the adopted child and the family, adoption was cancelled and the child started staying in Spoorthi Institution. The petitioner-accused 1 used to enter the institution during night hours and have sexual intercourse with the victims who are staying in the said Institution. Cases of sexual assault were also reported. A case under Sections 376(1), 376(3), 377, 506 of Penal Code, 1860 i.e. IPC; Sections 5(f)(i)(o)(p), 6, 21(2) of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’ for short); and Sections 3(1)(w)(i)(ii), 3(2)(v), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.  A single Judge bench dismissed the petition on merits holding that no case of bail is made out. The instant petition was filed to answer the references before a Special Bench headed by Chief Justice.

Counsel of petitioner-accused submitted 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 reason 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 1 was entitled to be released on bail.

Counsel for the respondent submitted that the statement of the victim under Section 161 of the Cr.P.C. had been recorded before the Magistrate, but the said statement recorded cannot be construed as evidence in terms of Section 35(1) of the POCSO Act. Merely because there was a delay in recording evidence or in the adjudication of the case and evidently Section 35 of the POCSO Act had not been complied with in the instant cases that would not straight away entitle the petitioner/accused 1 to be enlarged on bail.

Issue 1: Can the statement recorded under Section 164 of Cr.PC be considered to be evidence under Section 35 of the POCSO Act?

The Court further observed that Section 35 of the POCSO Act consists of two parts: firstly, it deals with the period for recording of evidence of the child and disposal of case. Sub-section (1) of Section 35 states 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. Secondly, Sub-section (2) prescribes the period of one year from the date of taking cognizance of the offence for the purpose of completion of the trial. Of course, the said period prescribed is to be complied with, as far as possible, by the Special Court.

The Court further observed that on reading the relevant provisions of the POCSO Act, it clearly indicates that the said Act is a special legislation for the protection of children from offences of sexual assault, harassment and pornography, etc. The POCSO Act being a special piece of legislation must over-ride the general legislation. In this regard, it would be useful to observe that the POCSO Act is a combination of both substantive law as well as procedural or adjective law. Substantive criminal offences have been created under various provisions of the POCSO Act and the manner in which the adjudication of said offences ought to take place, namely the procedure to be followed is also provided for under the POCSO Act.

The Court further observed that Section 164 of Criminal Procedure Code i.e. 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 statement of a child, but recording of evidence of the child and disposal of the case. The said Section is relatable to Chapter XXIII of Cr.P.C., which deals with evidence in inquiries and trials, including mode of taking and recording of evidence. But, 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 observed that 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 same plane, hence the recording of statement under Section 164 of Cr.P.C. being prior to the commencement of the trial, it cannot be considered to be evidence under sub-section (1) of Section 35 of the POCSO Act.

The Court thus held “the statement recorded under Section 164 of Cr.P.C. made in the course of investigation by the victim child, cannot be considered as evidence recorded under Section 35 of the POCSO Act.”

Issue 2: Whether the accused is entitled to bail in case the mandate under Section 35 of the POCSO Act has not been completed?

The Court observed that the main object behind Section 35 of the POCSO Act is that the victim child must not only be rendered speedy justice but, at the same time, it is necessary to get over the legal proceeding at the earliest, so that the child could concentrate on rehabilitation and get on with his or her life.

The Court further observed that the expression “as far as possible”, is used by the Parliament, having regard to the genuine difficulties faced in the conclusion of a trial concerning a victim child under the provisions of the POCSO Act. If the evidence of the child is to be recorded within a period of thirty days from the date of taking cognizance of the offence, the trial under the provisions of the POCSO Act being a sessions trial, would mean that all provisions of Cr.P.C. which are not inconsistent with the provisions of the POCSO Act would apply and hence, there may be reasons beyond the control of the Special Court, for not being able to complete the trial under the POCSO Act within a period of one year from the date of taking cognizance of the offence.

The Court relied on judgment Neeru Yadav v. State of Uttar Pradesh, (2016) 15 SCC 422, wherein the guiding factors regarding the grant of bail under provisions of the POCSO Act were laid down:

(i) The nature of accusations and the severity of the punishment, in case of the accusation entail a conviction and the nature of evidence in support of the accusations;

(ii) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant;

(iii) Prima facie satisfaction of the court in support of the charge

The Court relied on judgment Varinder Kumar v. State of Himachal Pradesh, (2020) 3 SCC 321 and observed that individual rights of the accused as well as the societal interest for bringing the offender to book and for the system to send the right message to all in the society—be it the law-abiding citizen or the potential offender, have to be balanced. “Human Rights” are not only of the accused but also of the victim, the symbolic member of the society.

The Court thus observed that 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 of one year from the date of taking cognizance of the offence.

The Court held “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.”

[Hanumantha Mogaveera v. State of Karnataka, 2021 SCC OnLine Kar 12300, decided on 23-04-2021]


Arunima Bose, Editorial Assistant has put this report together 

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