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rape

Mere non-compliance with Section 35 of the POCSO Act does not entitle the accused to bail: Karnataka High Court

Bail will not be granted to an accused booked under the Protection of Children from Sexual Offences Act, 2012 merely on the ground that the time limitation imposed in recording evidence of the child and conducting the trial proceeding was not observed. The Bench of Justice BV Nagarathna and Justice Uma while adjudicating the matter in Hanumantha Mogaveera v. State of Karnataka [CRIMINAL PETITION No.3000/2020] dealt with the rationale behind imposing a time limitation in the POCSO Act.

An FIR was launched by the informant of a child care institution alleging that the petitioner/accused entered the institution during night hours to have sexual intercourse with the victims residing in the aforesaid institution. One of the victims testified that the petitioner entered the hostel illegally and sexually assaulted them. The petitioner submitted that he was entitled to bail on the ground that Section 35 of the POCSO Act had been violated. Section 35(1) of the POCSO Act provides that the evidence of the child must be recorded within 30 days of taking cognizance of the offense by the Trial Court. If the same is not so recorded, the reasons for the delay must also be recorded by the said Court. Section 35(2) of the POCSO Act provides that the trial must be preferably be completed by the Trial Court within a period of one year from the date of taking cognizance of the offense. Since both these provisions were not adhered to, the petitioner demanded to be released on bail.

The Court while interpreting Section 35(1) of the POCSO Act, held that the particular section does not deal with recording of statement of a child, but recording of evidence of the child and disposal of the case. Merely because the evidence is recorded a little later, does not make the evidence lose its sanctity or credibility. While interpreting Section 35(2) of the POCSO Act, the Court held that the reason for imposing a time limitation in conducting the trial is to ensure the child receives speedy justice so that it could concentrate on rehabilitation and get on with his or her life. The POCSO Act is child-centric in its form and nature and all efforts must be invested in protecting the stakeholders of the Act, who are the victimized children.

The bench hence denied the request for bail and sounded the judgment that “The reasons must be beyond the control of the Special Court or the reasons were such, which prevented the recording evidence of the child within the stipulated period. Thus, the reasons must be strong enough for being accepted and sufficient in law to absolve the Special Court for not recording the evidence of the child within the stipulated period. But, if for any reason the evidence of the child is not recorded within the stipulated period, then the same cannot be discarded only on that score.”

Click here to read the judgment.

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