Hanumatha Mogaveera Vs State Of Karnataka: Karnataka HC Held That Accused Cannot Be Released On Default Bail On Non-Compliance Of Sec 35 Of POCSO

DATE OF JUDGEMENT:
April 23, 2021

JUDGES:
Justices B V Nagarthna and Justice M G Uma

PARTIES:
Hanumatha Mogaveera (Appellant)
State of Karnataka (Respondent)

SUBJECT

In this case, the primary question before the Court was that if the time limit set by Section 35 of POCSO Act has not been complied with then can the accused be entitled to default bail.

OVERVIEW

1. The accused was charged under various section of Indian Penal Code and the POCSO Act and Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused had appealed before the High Court for grant of bail.
2. The petitioner claimed that under Section 35(1) of the POCSO Act, the child's statement must be recorded within 30 days of the violation being committed. Section 35(2) requires the trial court to make a decision within one year after taking notice of the offence.
3. The petitioner contended that since the requirements of Section 35 had not been complied with, he was entitled to default bail. Furthermore, the petitioner pleaded that he would comply with all the conditions imposed on the bail by the Court.
4. The respondents contended that the statement of the victim had been recorded under Section 161 of Code of Criminal Procedure. Furthermore, the respondents pleaded that non-compliance with Section 35 cannot be the sole ground for granting a bail.

IMPORTANT PROVISIONS

Code of Criminal Procedure:

• Section 164: (1) Any Metropolitan Magistrate or Judicial Magistrate may,whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

[Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.]

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:—

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession hemay make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A. B.

Magistrate.”

(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner herein after provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.

[(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, subsection (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376Eor section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:

Provided that if the person making the statement is temporarily or permanently mentally or physically disabled,the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:

Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed.

(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement,without the need for recording the same at the time of trial.]

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

Protection of Children from Sexual Offences Act, 2012:

• Section 35:(1) 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.

(2) 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.

ISSUES

• Whether evidence recorded under Section 164 of Code of Criminal Procedure can be regarded as evidence under Section 35 of POCSO Act?
• Whether non-compliance with the provisions of Section 35 of the POCSO Act can entitle the accused to default bail?

ANALYSIS

1. The Court pointed that unlike Section 164 of CrPC which deals with recording of statement, Section 35 of POCSO Act deals with the recording of evidence of a child.
2. The Court thus came to the conclusion that Section 164 of CrPC and Section 35 of POCSO Act cannot equated as under Section 164, the statement is recorded before the commencement of trial while under Section 35, the evidence is recorded during the trial. Thus, evidence recorded under Section 164 of CrPC cannot be considered as evidence under Section 35 of the POCSO Act.
3. The Court held that while the mandate to record the evidence of the child within 30 days under Section 35 must ideally be followed, failure to do the same will not render the evidence collected thereafter as discarded. If there is any delay then the Special Court must state the reasons for the same.
4. The Court observed that the intent of Section 35 is to provide speedy justice to the child so that he can be rehabilitated. The purpose of Section 35 is not to grant bail to the accused but to ensure the welfare of the child. Moreover, the Section uses the words “as far as possible” and hence the statute takes not of the cat that sometimes it may not be possible for the trial court to complete the proceedings within 1 year.
5. Thus, the Court held that if due to some unavoidable reasons, the evidence of the child could not be recorded within 30 days, then the same cannot be considered as a ground of default bail to the accused.
6. Furthermore, the Court while taking note of the lack of Special Courts and lack of infrastructure in the existing Courts, held that the failure to complete the trial within 1 year of the cognizance of offense would also not entitle the accused to default bail.

CONCLUSION

The Court rightly held that mere non-compliance with provisions of Section 35 cannot be the ground for default bail. The Section itself provides that where there is unavoidable delay, the Special Court must provide reasons for it. Hence, the statute itself envisages that there may be a delay in compliance in certain cases. The purpose of POCSO Act is to provide stringent punishments to those who commit crime against children and mere technicalities must not be considered as a ground for bail.

The Court also highlighted the problem of lack of infrastructure in the Courts and lack of Special Courts for dealing with the matters under the POCSO Act. There is an urgent need to establish more Special Courts in order to reduce the case load on the judiciary and to provide speedy justice to the people.

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