Failure to report crimes under POCSO Act is a bailable offence: Himachal Pradesh High Court

The Himachal Pradesh High Court recently held that the failure to report crimes under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a bailable offence. [Sushil Kumar versus State of Himachal Pradesh].A bailable offence is one on which the accused is entitled to be released on bail as a matter of right while in non-bailable offences, an accused person has to approach court for bail and it is the court's discretion to grant or reject bail depending on the facts and circumstances. .Section 21 of the POCSO Act penalises non-reporting of offences of child sexual abuse under the law. A person guilty of this offence is generally liable to be sentenced to up to six months of imprisonment under the provision. However, a person in charge of a company or an institution can be sentenced to up to one year of imprisonment for the same offence..Justice Rakesh Kainthla has now clarified that this offence is bailable as per the Code of Criminal Procedure (CrPC) and that the police can release the accused on bail. The Court made the observation while deciding on a petition seeking anticipatory bail in a POCSO case..The Court explained that since the POCSO Act itself does not provide the nature of the offence, it has to be determined with reference to the CrPC. It pointed out that Section 31 of the POCSO Act provides that the CrPC would apply to the proceedings before a Special Court including in respect of bail. “The classification of the offences under the Code of Criminal Procedure clearly shows that if the offences are punishable with imprisonment for less than three years, the offences are bailable and non-cognizable,” it added..Noting that Section 21 of the POCSO Act provides for a punishment of up to six months or one year, the Court said that the same would be a bailable offence. .The Kerala High Court and Karnataka High Court have taken a similar view on this issue earlier.“No other precedent to the contrary was brought to the notice of the Court. Therefore, the plea that the offence punishable under Section 21 is bailable is upheld,” Justice Kainthla said..The plea before the Court was filed by a man (petitioner) who was accused of failing to report a crime that was allegedly committed in a hotel managed by him.While the petitioner claimed to have been not aware of the crime, the Police said the main accused had raped a minor at the hotel. The victim had visited the hotel four times in school dress and despite knowing the same, the hotel manager and owner failed to report the matter to the police, the Court was told.Since the Court found that the offence was bailable, it opined that the petition for anticipatory bail before the Court was not maintainable since the accused is entitled to be released on bail even otherwise upon furnishing bail bonds. While referring to Section 438 of the CrPC (dealing with anticipatory or pre-arrest bail), the Court added,“The bare perusal of the Section shows that it applies to the non-bailable offence. The reason is that a person accused of a bailable offence is entitled to bail as a matter of right.".Advocate Devender K Sharma represented the petitioner. Deputy Advocate General RP Singh represented the State..[Read Judgment]