The Karnataka High Court recently has held that non-compliance with Section 35 of the Protection of Children from Sexual Offences Act will not be taken as the grant of default bail to the accused.
Section 35 of the POCSO Act provides that the evidence of the child shall be recorded within a stipulated time period of thirty days of the Special Court taking cognizance of the offence and stating reasons for the delay, the same shall be recorded by the Special Court.
Factual Background
Hanumantha Mogaveera, who was arrested under the POCSO Act, moved the Karnataka High Court for the grant of default bail as the proceedings before the special court were not completed within one year. He laid stress on the order of the High Court in Viny v. State of Karnataka to proceed with his case.
However, single judge of the High Court dismissed the plea observing that the expression “as far as possible” is used in Section 35 (2) of the POCSO Act has to be considered and kept in mind while reading the object and intent of the Act.
Since this position was in dispute with the order in the Vinay case; the matter was referred to Division Bench.
Observation of the Court
When the matter was bought before the Court, the Bench looked into the legislative intent of Section 35 of the POCSO Act which states for completion of proceedings of the case within one year.
“The main reason being, the victim child must not only be rendered speedy justice but, at the same time, it is necessary to get over the legal proceedings at the earliest, so that the child could concentrate on rehabititlation and get on with his or her life, prolonging the trial before the Special Court for years together, like any other session case, would be futile and frustrate the intention of the parliament as well as the object of the POCSO Act, the judgment noted. As discussed above there may be various, reasons and circumstances beyond the control of Special Court under which the conclusion of the proceedings within a period of one year may not happen. As already noted, the reasons for the same have been discussed above. Under such circumstances, the accused cannot enforce the right to be released on bail. No such right is envisaged under the said provisions of the Act and the same cannot be read into it by way of interpretation which may go against the interest of the child victim”.
Further, the Court noted that in Section 35, the expression “as far as possible” is used by the Parliament, considering the real-time obstacles faced in the conclusion of trial pertaining to a victim child.
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 the majority of the cases, opined by the Court. The Bench also held that the statement recorded under Section 164 of the Code of Criminal Procedure cannot be taken as evidence under Section 35 of the POCSO Act.
“Section 35 of the POCSO Act, being under a special enactment, should 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 judgment said.
With respect to the case of Vinay v. the State of Karnataka, the Bench stated that the there the evidence was recorded late and thus the accused was granted bail on the same ground, it was also added that the same is “not a good law” and thus, cannot be a precedent for further cases.
Case Details
Before: Karnataka High Court
Case Title: H Mogaveera v. State of Karnataka
Coram: Hon’ble Mr. Justice and Mrs. BV Nagarathna and MG Uma
Read Order@LatestLaws.com
