Himachal Pradesh High Court: Failure to Report Under POCSO Held Bailable Offense (Sushil Kumar Case)
Introduction
- Sushil Kumar vs. State of Himachal Pradesh, Cr.MPM No. 2705 of 2023 decided on 09-11-2023
- In the case of Sushil Kumar versus the State of Himachal Pradesh, the petitioner filed a bail petition seeking anticipatory bail in the FIR lodged against him and others under the provisions of the POCSO Act and the IPC. The Himachal Pradesh High Court clarified that the failure to report crimes under Section 21 of the Protection of Children from Sexual Offenses Act, 2012 (POCSO Act) is considered a bailable offense. A bailable offense entitles the accused to be released on bail as a matter of right. Whereas the petition for Anticipatory Bail stands in contrast to non-bailable offenses, where the accused must approach the court for bail, and the court exercises discretion in granting or rejecting bail based on the circumstances.
- The court emphasized that offenses punishable with imprisonment for less than three years are considered bailable and non-cognizable under the CrPC. Given that Section 21 of the POCSO Act provides for a punishment of up to six months or one year, the court concluded that it is a bailable offense.
- Background of the Case
- The case revolves around a 12th-grade victim. In September 2022, the incident took place within the scope of a tournament at a school, into which the main accused induced the victim with some substance, took her to a hotel, recorded an obscene video of her, and raped her. Further, he threatened the victim that if she brought the matter to anyone's notice, he would upload her video with far-reaching consequences.
- Subsequently, the main accused uploaded the video via Facebook. The First Information Report was lodged on 27-08-23 for offenses punishable under Sections 376, 506 of the Indian Penal Code, 1860, Section 21 of the POCSO Act, 2012, and Section 67 of the Information Technology Act, 2000; and an investigation was initiated. The main accused was alleged to have raped the victim in September 2022, November 2022, December 2022, January 2023, and on February 15, 2023, while being a minor; he had attained majority in April 2023, at the time of commission of an offense.
- The investigation later found that the incident was taking place at a spot in the hotel that the victim had gone to four times in a school dress, four times, according to her evidence. The managers and owners of the hotel were aware that the victim was in a school dress, and being a minor, they should have reported the matter to the police. This situation falls under Section 21 of the POCSO Act. The main accused committed the crime at the hotel, which was under the management of the petitioner.
- The petitioner fully cooperated with the investigative agencies, providing all necessary information and documents. The petitioner was implicated in the FIR on the ground that he failed to report the commission of the offence. The Petitioner submitted to this Court that he was unaware of the commission of the offence and was ready and willing to participate in the investigation. The Petitioner undertook before the Court that he would abide by all terms and conditions that might be imposed upon him. Hence arises the present petition.
Analysis and Decision
- Justice Rakesh Kainthla, in deciding on this petition for anticipatory bail in a POCSO case, clarified that the nature of the offense is to be determined with reference to the Code of Criminal Procedure (CrPC) since the POCSO Act itself does not specify it. The court noted that Section 31 of the POCSO Act stipulates that the CrPC applies to proceedings before a Special Court, including matters related to bail. Offenses punishable with imprisonment for less than three years are considered bailable and non-cognizable under the CrPC.
- Section 21 of the POCSO Act imposes penalties for the non-reporting of child sexual abuse offenses, with a potential imprisonment term of up to six months and up to one year for individuals in charge of a company or institution.
- The court, considering the offense as bailable, held that the petition for anticipatory bail was not maintainable since the accused was entitled to be released by furnishing bail bonds. Referring to Section 438 of the CrPC, which deals with anticipatory or pre-arrest bail, the court explained that this section applies to non-bailable offenses, as a person accused of a bailable offense is entitled to bail as a matter of right.
Conculsion
This ruling has a positive impact on the administration of justice in POCSO offenses. It makes it easier for accused persons to obtain bail in bailable offenses under the POCSO Act, thereby reducing the burden on the criminal justice system and ensuring that accused persons are not subjected to pre-trial detention unnecessarily. To know more about POCSO cases, click here.
