Statement of victim child recorded under Section 164 of CrPC not evidence under Section 35 of POCSO Act: Karnataka High Court

The Karnataka High Court recently held that a statement of a victim child recorded under Section 164 (Recording of confessions and statements) of the Code of Criminal Procedure (CrPC) cannot be considered as evidence recorded under Section 35 (Period for recording of evidence of child and disposal of case) of the Protection of Children from Sexual Offences Act [H Moogaveera vs State of Karnataka]..The Court said the statement under Section 164 CrPC is taken during the course of investigation, while statement under Section 35 of the POCSO Act is recorded before the special court during the course of the trial.."In our view, the recording of statement under Section 164 of CrPC being prior to the commencement of the trial, it cannot be considered to be evidence under sub-section (1) of Section 35 of the POCSO Act........It is therefore observed that the statement recorded under Section 164 of Cr.P.C. made in the course of investigation by the victim child, cannot be considered as evidence recorded under Section 35 of the POCSO Act," the Court held. held Justices BV Nagarathna and MG Uma of the High Court. .The judgment was passed by a Bench of Justices BV Nagarathna and MG Uma on a plea for bail by a person accused under POCSO Act. ."As already noted, a statement under Section 164 of CrPC is during the course of investigation or at any time afterwards before the commencement of the trial. But, the evidence recorded before the Special Court under Section 35 of the POCSO Act is during the course of the trial. The two cannot be equated and neither are they on same plane," the Court said. .Accused Hanumantha Mogaveera, who was arrested under the POCSO Act, had approached the Karnataka High Court seeking bail as the proceedings before the special court were not completed within a year as mandated by Section 35 of POCSO Act. 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 observing that the expression "as far as possible" 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.One of the questions referred to the Division Bench was as follows:Whether the evidence which has been recorded under Section 164 of CrPC can be considered to be an evidence under Section 35 of the POCSO Act?.The Division Bench, placed reliance on Supreme Court decisions, to hold that as Section 164 of CrPC deals with recording of confessions and statements by any Metropolitan or Judicial Magistrate made to him in the course of an investigation, the same is relatable to Sections 25 (Recording of Statement of a child by Magistrate) and 26 (Additional Provisions regarding statement to be recorded) of the POCSO Act.However, when it comes to Section 35, the Court observed that the same does not deal with recording of statement of a child, but recording of evidence of the child and disposal of the case. Further, Section 35 of the POCSO Act, being under a special enactment, would prevail over the general provisions of CrPC, particularly when there is any inconsistency between the said Section and CrPC, as per the provisions of Section 42A of the POCSO Act, said the Court..The Court also proceeded to examine the ambit and meaning of Section 35 (1) of the POCSO Act which mandates the Special Court to record the evidence of the child within a period of thirty days of taking cognizance of the offense by the Special Court. That is the ideal mandate to be followed, the Court opined. But, if the recording of the evidence does not take place within the stipulated period, it does not mean that the evidence recorded thereafter would lose its sanctity or is to be discarded. This is because the provision itself speaks that if there is a delay in recording the evidence of the child, the Special Court has to give reasons for the delay, further said the Court. .In this regard, the Court observed that mere non-compliance with Section 35 of the POCSO Act will not entitle an accused to be released on default bail. With these observations, the Court rejected the bail application and disposed of the plea. Read more about the judgment here. .[Read Judgment]