Himachal Pradesh High Court: In a petition filed for seeking pre-arrest bail, Rakesh Kainthla, J.*, opined that since the Protection of Children from Sexual Offences Act, 2012 (‘POCSO’) did not provide the nature of the offence, it had to be determined with reference to the Code of Criminal Procedure, 1973 (‘CrPC’) and the classification of offences under CrPC showed that the offences punishable with imprisonment for less than three years were bailable and non-cognizable. Since, Section 21 of the POCSO Act provided an imprisonment of six months to one year, therefore the same would be bailable. Thus, the Court opined that the offence punishable under Section 21 of the Act was bailable and since Section 438 of CrPC was applicable to non bailable offence, therefore the present petition for pre-arrest was not maintainable.
Background
In an instant case, the victim was studying in 12th standard and on September, 2022, there was a tournament in a school where the main accused administered some substance to the victim and took her to the hotel, where he made an indecent video and raped her. Further, he threatened the victim, that he would make her video viral, if she reported the incident to any person. Subsequently, the main accused uploaded the video on the Facebook and the FIR dated 27-08-2023, was registered for the offences punishable under Sections 376, 506 of the Penal Code, 1860, Section 21 of the POCSO and Section 67 of the Information Technology Act, 2000 and an investigation was conducted.
The main accused had also raped the victim in September 2022, November 2022, December 2022, January 2023 and 15-02-2023, when he was a minor, but he attained majority in April 2023 at the time of the commission of an offence. Later, during the investigation it was found that the incident took place in a hotel, where the victim had visited four times in the school dress. The managers and the owners of the hotel knew that the victim was in school dress, and she was a minor, but they failed to report the matter to the police. Hence, the offence punishable under Section 21 of the POCSO Act was made out against the petitioner.
It was alleged that the main accused had committed the crime in the hotel managed by the petitioner and the petitioner cooperated with the Investigation Agency and provided all the information and documents. The petitioner was implicated in the present FIR on the ground that he had failed to report the commission of an offence.
However, the petitioner contended that he was not aware of the commission of the offence and was ready and willing to join the investigation. The petitioner also stated that he would abide by all the terms and conditions, which might be imposed upon him. Hence, the present petition was filed.
Analysis, Law, and Decision
The Court upon perusal of Section 7 of the POCSO Act opined that it provided imprisonment of six months to one year and a fine, but it did not mention whether the offence was bailable or not. The Court further opined that Section 31 of the POCSO Act provided that the provisions of the CrPC would apply to the proceedings before a Special Court including the provisions of the bail. Thus, the provisions of the CrPC would have to been seen to determine whether the offence was bailable or not.
The Court noted that since the POCSO Act did not provide the nature of the offence, it had to be determined with reference to the CrPC and the classification of offences under CrPC showed that the offences punishable with imprisonment for less than three years were bailable and non-cognizable. Since, Section 21 of the POCSO Act provided an imprisonment of six months to one year, thus the same would be bailable as per CrPC.
Therefore, the Court opined that the offence punishable under Section 21 of the Act was bailable and further upon perusal of Section 438 of CrPC, the Court opined that the provision applied to non-bailable offence, because the person accused of bailable offence was entitled to bail as a matter of right and dismissed the present petition as not maintainable.
[Sushil Kumar v. State of Himachal Pradesh, 2023 SCC OnLine HP 1532, decided on 09-11-2023]
*Judgment authored by- Justice Rakesh Kainthla
Advocates who appeared in this case :
For the Petitioner: Devender K Sharma, Advocate;
For the Respondent: R.P. Singh, Deputy Advocate General with ASI Veena Devi I.O Women Police Station, Hamirpur, H.P.
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