Provision of Default Bail Under POCSO Act

By Tashmayee Sarkhel

Published on: 05 August 2022 at 22:17 IST

This article includes all particular details about the Protection of Children Against Sexual Offences Bill (POCSO), 2012^[1], and all about Section 35^[2] under it.

Children make up a significant portion of the population and frequently experience problems like starvation, poverty, illiteracy, physical and sexual abuse, etc. An immature youngster is unable to understand the events he has, which may have a terrible impact on his life.

The same was not discovered for illegal sexual acts committed against children in India, even though the Indian Constitution makes an effort to protect many of their issues through its various Fundamental Rights^[3] and Directive Principles of State Policy and there have been several international instruments.

As part of the country’s child protection programs, laws against child sexual abuse have been passed in India. On May 22, 2012, the Indian Parliament enacted the “Protection of Children Against Sexual Offences Bill (POCSO), 2011” to make child sexual abuse a criminal offense. The Ministry of Women and Child Development adopted a directive. In November 2012, the government also announced the rules created by the bill, making it ready for execution. Many people have called for stricter laws.

Protection of Children Against Sexual Offences Bill (POCSO):

To protect children from sexual assault, sexual harassment, and pornographic offenses while preserving the child’s best interests throughout the legal process, the Protection of Children from Sexual Offenses Act, 2012^[4], was passed into law. By establishing systems for child-friendly reporting, recording of evidence, investigation, and swift trial of offenses through designated Special Courts, the Act is designed to put children first.

Both the accused and the children are equally affected by the conduct. The Pornography Act^[5] makes it illegal to view or acquire pornographic material featuring children. The Act criminalizes aiding and abetting child sexual abuse. The 2019 amended act made the POCSO Act’s penalties even more severe. The POCSO Act imposes a possible sentence of life in jail as well as a fine.

The new Act stipulates several offenses for which an accused person may face punishment. It recognizes different types of penetration outside penile-vaginal penetration and makes actions of immodesty toward children illegal as well. Infractions to the law include:

• Penetrative Sexual Assault: Inserting a penis, object, or other body parts into a child’s vagina, urethra, anus, or mouth, or requesting that they or another person do so to the child.
• Sexual Assault: When someone touches a youngster inappropriately or compels them to touch another person, it is sexual assault.
• Sexual harassment: includes passing sexually charged comments, making sexual sounds or gestures, following too closely, flashing, etc.
• Child exploitation.
• Aggravated Sexual Assault/Aggravated Penetrative Sexual Assault.

According to a Ministry of Women and Child Development report conducted in 2007, 53% of Indian children had experienced sexual abuse. If there should be a specific law against this crime, we posed the question after our episode on child sexual abuse. Ninety-nine. 6% of the responses we received were in favor.

Important characteristics of POCSO:

• It is not gendered.
• It makes it necessary to report abuse.
• It mandates that sexual assault be recorded.
• It enumerates every sort of sexual offense known to exist against minors.
• It guarantees minors’ safety throughout the legal process.

POCSO Provisions:

• Within 24 hours of receiving a report, police officers must bring every case to the Child Welfare Committee’s attention.
• Toto avoids appearing scary, they must also be wearing casual clothing when they are recording the minor’s statement.
• The statement must be written out in a location the minor chooses, in the presence of someone they trust.
• Only a female doctor may conduct the medicolegal examination to gather forensic evidence, and the minor must be present.
• To conduct quick, in-camera trials, special courts have been established. The following rules must be followed by these courts:
  • The minor is not in any way exposed to the accused during the gathering of evidence;
  • The minor’s identity is not revealed at any point during the investigation or trial;
  • The minor is not required to repeat his or her testimony in court and may do so via video link;
  • The case is concluded within a year of the date the offense was reported;
  • The defense routes all questions through the judge and is not allotted a specific time to respond to them.
  • The victim of sexual abuse who needs medical care and rehabilitation gets compensated.

Penalties specified under POCSO:

• Penetrative sexual assault: Penovaginal, oral, urethral, or anal penetration, as well as fingering or object penetration.

Penalty: Life in prison, with the possibility of an additional seven years, and a fine (Section 4^[6]).

• Aggravated penetrative sexual assault: Committed by a law enforcement officer or another individual in a position of authority.

Penalty: A minimum of 10 years in jail, with the possibility of strict life in prison, as well as a fine (Section 6^[7]).

• Non-penetrative sexual assault: Committed by anybody who, with the aim to behavior sexual activity,
  • touches the kid’s vagina, penis, anus, or breast, or
  • forces the child to touch the same areas on their own or with another person.
  • engages in any other sexually explicit behavior with non-penetrative physical contact.

Penalty: A fine and a sentence of at least 3 years, but up to 5 years (Section 10^[8]).

• Aggravated non-penetrative sexual assault: committed by a police officer or other person in a position of trust or power.

Penalty: A fine and a sentence of at least 5 years, but up to 7 years (Section 10).

• Sexual harassment: teasing, jeering, demands, or requests for sexual favors; unwanted sexual comments; emails; or phone calls.

Penalty: three years in prison and a fine (Section 12^[9]).

• Use of minor for pornographic purposes: involving a kid in the creation, production, and/or dissemination of pornography using any kind of technology, whether print, electronic, computer, or other.

Penalty: 5 years in prison and a fine, and 7 years in prison and a fine in the event of a subsequent conviction (Section 14 (1)^[10]).

• Attempt of offense: Punishment – one year in prison and/or a fine (Section 18^[11]).
• Abetment of offense: the act of encouraging someone to commit an offense; planning to do so, or knowingly supporting an offense.

Punishment: Equal to the crime’s punishment (Section 17^[12]).

• Failure to report an offense: Penalty – six months in prison or a fine (Section 21^[13]).

Section 35 of the POCSO Act:

According to Section 35, the Special Court must attempt to conclude the trial of the case up to one year after the date of cognizance and must record any evidence of a child within 30 days of the Special Court taking cognizance of the offense. Additionally, any delays should be noted in writing.

The idea of default bail states that if the inquiry takes longer than the allotted time, the accused is entitled to bail. However, the courts have frequently ruled that the time frame stipulated by Section 35 is simply intended to lay out the general facts of a POCSO case. Its goal is to facilitate the swift resolution of POCSO cases and alleviate the load on the Special Courts and Children’s Courts. However, failure to comply with Section 35 of the POCSO Act does not provide the accused the right to default bail.

Hanumatha Mogaveera Vs. State of Karnataka, Karnataka High Court, 2021 Crl. P No. 2951/2020:

The question of whether the accused would be eligible for default bail if Section 35 of the POCSO Act was not followed was recently raised by the High Court of Karnataka, which is composed of a division bench that includes Justices B V Nagarthna and M G Uma. Following events took place:

• A child’s testimony or the Special court’s inability to conclude the case’s trial within the time frame specified by Section 35 of the Act cannot be used as justification for the accused person’s release on bail for uncontrolled circumstances.
• The court further stated that Section 35 of the Act’s primary goal is to guarantee that the victim kid suffers no trauma from the incident and that the child is securely rehabilitated into society. Because the investigation took longer than expected, the accused cannot exploit this Section to their advantage. This justification cannot work in the accused’s favor and order his release.
• Statements made under Section 164^[14] of the Criminal Procedure Code and recorded in front of the magistrate are not admissible as evidence.
• If Section 35 is strictly followed, every effort will be made to postpone the special court’s proceedings for longer than a year and request the accused’s release on bond. According to the bench, this was not the Act’s intention, and it should be discouraged.
• Another issue raised by the court was the absence of enough courts to hear cases under the POCSO Act. It may be nearly impossible for a court to start a POCSO trial within a year after the date of cognizance due to the poor infrastructure’s enormous quantity of open cases. As a result, the accused cannot be regarded to have a right to bail even if the deadline specified by Section 35 is not followed.

Mohiddin Vs. State of Karnataka, Karnataka High Court, 2017 Crl. P No. 5923/2017:

In a different Karnataka High Court case, the defense attorney for the accused argued for bail because Section 35(1)^[15] was not properly followed and the victim’s evidence was not finished within the allotted 30 days. The defendant requested default bail.

The court, however, denied this bail motion and ruled that, despite the victim girl’s testimony not being recorded within a 30-day window, it could not be argued that the prosecution’s whole case should be disregarded or ignored and that the petitioner should be released on bail. The court in question must document the delays even if the evidence is not recorded within the required thirty days.

Conclusion:

Protecting the interests of a kid who has been the victim of any sexual offense was the main goal of passing POCSO. Yes, every accused person deserves a fair and unbiased hearing as well as the ability to request bail. Nevertheless, an accused person cannot be given default bail just because an investigation is not finished in a specific amount of time or Section 35 of POCSO is not followed. Bail may be granted if there are further justifications, such as a lack of adequate evidence, the nature of the crime, the harshness of the sentence, etc. However, the accused should not be allowed to request bail only because the investigation could not be finished within a given time frame. In POCSO, default bail should not be granted automatically as it is under CrPC. The concerned court should have the discretion to consider the circumstances behind the delay in the inquiry and determine whether or not a case may be made for default bail.

1. The Protection of Children Against Sexual Offences Bill (POCSO), 2012 ↑
2. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 35 ↑
3. Fundamental Rights ↑
4. Protection of Children from Sexual Offenses Act, 2012 ↑
5. The Pornography Act ↑
6. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 4 ↑
7. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 6 ↑
8. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 10 ↑
9. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 12 ↑
10. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 14(1) ↑
11. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 18 ↑
12. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 17 ↑
13. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 21 ↑
14. The Criminal Procedure Code, sec. 164 ↑
15. The Protection of Children Against Sexual Offences Bill (POCSO), 2012, s. 35(1) ↑