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Though the court agreed with the contention that the offence under Section 21 of the POCSO Act is bailable, it pointed out that Section 438, CrPC applies only to non-bailable offences
The Himachal Pradesh High Court recently made a significant ruling that failure to report crimes under the Protection of Children from Sexual Offences Act (POCSO Act), is a bailable offence.
Section 21 of the POCSO Act provides punishment for failure to report or record a case as imprisonment of six months/one year or/and a fine, however, it does not mention whether the offence is bailable or not.
The single judge bench of Justice Rakesh Kainthla, while dealing with a pre-arrest bail application, observed that since the POCSO Act did not provide the nature of the offence; hence, it had to be determined with reference to the Code of Criminal Procedure (CrPC).
"The classification of the offences under the Code of Criminal Procedure clearly shows that if the offences are punishable with imprisonment for less than three years, the offences are bailable and non-cognizable. Section 21 of the POCSO Act provides a punishable of six months/1 year; therefore, the same will be a bailable offence as per the Code of Criminal Procedure," the judge held.
Court referred to the similar views taken in M.H. Gangamaregowdavs State of Karnataka (2019), and XXX XXX & other vs State of Kerala (2022).
While highlighting that no other precedent to the contrary was brought to the notice of the court, it upheld the applicant's plea that the offence punishable under Section 21 is bailable.
In the case at hand, an FIR had been registered for the commission of offences punishable under Sections 376, 506 of IPC, Sections 6 and 21 of the POCSO Act, and Section 67 of the Information Technology Act.
The pre-arrest bail applicant was not made an accused initially in the F.I.R. but, subsequently, he was made an accused for the commission of an offence punishable under Section 21 of the POCSO Act. The applicant's name had appeared during the investigation.
It was claimed that the main accused had committed repeated rape on the minor, a student of class 12th, in a hotel managed by the applicant.
Seeking relief before the high court, the counsel for the applicant argued that the offence punishable under Section 21 of the POCSO Act is bailable, and therefore, the applicant was entitled to bail as a matter of right.
Though the court agreed with the contention that the offence under Section 21 of the POCSO Act is bailable, it pointed out that a bare perusal of Section 438, CrPC (direction for grant of bail to person apprehending arrest) shows that the Section applies to non-bailable offences.
Court emphasised that the reason for the same is because a person accused of a bailable offence is entitled to bail as a matter of right.
Therefore, highlighting that the bail application had been filed under Section 438, CrPC, court held it not maintainable and dismissed the same.
Case Title: Sushil Kumar v State of Himachal Pradesh
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