Non-compliance with deadline under Section 35 of POCSO Act will not entitle accused to default bail: Karnataka High Court

Mere non-compliance with Section 35 of the Protection of Children from Sexual Offences (POCSO) Act will not entitle an accused to be released on default bail, the Karnataka High Court recently held [H Mogaveera vs State of Karnataka].Section 35 of the POCSO Act provides 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.Further, Section 35 also lays down that the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence..The Court held that 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.."In our view, non-compliance of Section 35 of the POCSO Act cannot be the basis for releasing the accused on bail as that would be a misreading of the provision," a Division Bench of Justices BV Nagarathna and MG Uma ruled. .Non-compliance of Section 35 of the POCSO Act cannot be the basis for releasing the accused on bail as that would be a misreading of the provision.Karnataka High Court.The Court further observed that there maybe be many reasons for which trial under POCSO may be extended to over a year. However, the same does not translate as a right for the accused to be released on bail against the interests of the child. ."As discussed above, there may be various reasons and circumstances beyond the control of the 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 an interpretation which may go against the interest of the child victim"..BackgroundHanumantha Mogaveera, who was arrested under the POCSO Act, approached the Karnataka High Court seeking bail as the proceedings before the special court were not completed within a year. He relied on the order of High Court in Vinay v. State of Karnataka to buttress his case. However, a single judge dismissed the plea observed that the expression "as far as possible" is used in Section 35(2) of the POCSO Act has to be borne in mind while reading the intent of the Act. .Since, this position was in conflict with order in Vinay, the matter was referred to a Division Bench. .When the matter came up, before the Bench, it looked into the legislative intent of Section 35 of the POCSO Act which provides for completion proceedings of cases 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 proceeding at the earliest, so that the child could concentrate on rehabilitation and get on with his or her life. Prolonging the trial before the Special Court for years together, like any other sessions case, would be futile and frustrate the intention of the parliament as well as the object of POCSO Act," the judgment noted. .Further, the Court noted that in Section 35, 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. .The Court also said that the docket explosion under the POCSO Act is not commensurate with the sufficient number of Special Courts being constituted with the requisite human resources as well as infrastructure to deal with POCSO cases. 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 a majority of the cases, opined the Court. .The Bench also held that the statement recorded under Section 164 of the Code of Criminal Procedure cannot be considered to be evidence under Section 35 of the POCSO Act.."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 judgment said. .On the dictim of the order in Vinay vs. State of Karnataka, wherein the accused was granted bail on the premise there has been a delay in recording evidence, the Court held that the same is 'not good law' and therefore, it cannot be a precedent for future cases..With these observations, the Court rejected the bail application of the accused and disposed of the plea. .Directions for effective implementation of POCSO Act.This apart, in its 81-page order, the Court also said that there should be a healthy coordination between all the stake-holders involved for the effective implementation of the POCSO Act.It proceeded to issue the following directions towards this end:.State government to take steps for setting up of the requisite number of Special Courts to try cases under the POCSO Act. State government is directed to provide the necessary infrastructure and manpower for the Special Courts under POCSO Act. The appointment/posting of exclusively trained prosecutors to handle the cases before the Special Courts under the provisions of the POCSO Act shall be made forthwith wherever such prosecutors are not yet appointed. A dedicated unit is set up in every District Hospital to attend to the child victim and provide proper medical facilities and whenever necessary referral to a private hospital be permitted.The State Government is also directed to make available mental health professionals to every child to overcome the trauma and for rehabilitation and reintegration, the cost of which is to be borne by the State.The State government is also directed to appoint adequate support persons to the child victims and to conduct a study, whether, they are discharging whether, they are discharging their duties effectively and take immediate measures as per the recommendations of the study. Presiding Officers of all Special Courts to comply with Section 35 of the POCSO Act in the matter of recording of evidence of the victim child and the conclusion of the trial within the time stipulated under the said provision. This is so that the justice delivery system does not in any way contribute to the trauma, mental disturbance and anxiety of the victim child, which could lead to severe impact on the behaviour and personality of the Child.."The aforesaid directions should be complied with on a timely basis, lest the object and purpose of the POCSO Act stands diluted on account of the non-implementation of the provisions of the POCSO Act in its true letter and spirit by the State and other stake-holders," the Court concluded..[Read Judgment]