The Kerala High Court on Thursday held that the offence punishable under Section 21 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 is a bailable offence.
Section 21 makes the failure to report an offence under POCSO Act punishable with imprisonment upto six months or if the person is in charge of an institution or company, imprisonment can extend upto one year.
Justice Bechu Kurian Thomas said if the statute does not declare a particular offence as bailable or non-bailable, reference has to be made to the schedule attached to the CrPC. The court then referred to Part II of First Schedule dealing with the classification of offences under other laws:
Cognizable or non-cognizable
Bailable or non-bailable
If punishable with death, imprisonment for life, or imprisonment for more than 7 years
Court of Session
If punishable with imprisonment for 3 years, and upwards but not more than 7 years
Magistrate of the first class
If punishable with imprisonment for less than 3 years or with fine only
The court noted Section 21 of POCSO Act makes contravention of Section 19 and Section 20 of the Act punishable but by itself does not declare the offence to be a non-bailable offence.
"A reading of the Schedule to Cr.P.C. extracted above evidences that if, under other laws, the offence is punishable with imprisonment for less than three years or with fine only, the offence is bailable and non-cognizable. It is thus evident that section 21 of the POCSO Act, which provides for a punishment of six months or a maximum of one year, is a bailable offence," said the court.
The court dealt with the legal question while considering the application for anticipatory bail of accused persons in a POCSO case. According to the prosecution, the main or first accused sexually assaulted the 9-year-old victim. The three other accused, who had approached the court for pre-arrest bail, allegedly failed to report the offence to police even after becoming aware about it.
Advocate Niresh Mathew, representing the three accused, argued that they have been roped in the case only under Section 21 "on the assumption that they were aware of the incident of sexual exploitation committed by the first accused and that they failed to intimate the police".
Submitting that they were unaware about the incident and the moment they became aware of it, they acted in accordance with the law, the counsel told the court that even though the offence under Section 21 of the POCSO Act is a bailable offence, the police are taking steps to arrest the three accused persons.
Public Prosecutor, Advocate M.K. Pushpalatha, however opposed the grant of bail and contended that petitioners are alleged to have committed a serious offence since they failed to inform the police about the incident of rape. It was argued that custodial interrogation is essential in the case.
According to the victim's statement, the first accused sexually assaulted her and on hearing her cries, the three other accused came and tried to console her. "Later, accused 2 to 4 had sent away the first accused from the Yathimkhana but failed to report the crime to the police," according to the prosecution.
"On a reading of the prosecution case, it is evident that the investigating officer does not have a case that accused 2 to 4 had either committed any sexual assault or even abetted the offence committed by the first accused. Petitioners are alleged to have committed only the offence under section 21 of the POCSO Act," said the court.
Observing that there is no doubt that the offence under Section 21 of the POCSO Act is a serious offence, the court said:
"However, the question whether the offence is bailable or non-bailable is not determined merely by the seriousness of the crime but by reference to the statutory provisions"
Ruling that Section 21 of the POCSO Act is a bailable offence, the court said it is also elementary that an application for anticipatory bail is not maintainable when the offence is bailable as in cases where the offence alleged is only bailable, the bail is a right, and it cannot be denied.
"In such circumstances, application for anticipatory bail is not maintainable as an accused, if arrested for a bailable offence, the investigating officer has to mandatorily release him on bail," it added.
Since the petitioners are alleged to have committed a bailable offence, the court said the question of apprehension of an arrest does not arise and therefore dismissed the bail application.