In BAIL APPL. No. 7673 OF 2022-KER HC- Failure to report offence against child under POCSO Act is bailable offence: Kerala HC  Justice Bechu Kurian Thomas [24-11-2022]

Read Order: XXX XXX AND ORS v. STATE OF KERALA 

LE Correspondent

Ernakulam, November 25, 2022: The Kerala High Court has held that Section 21 of the POCSO Act which deals with failure to report the offence against a child, is a bailable offence.

A Single-Judge bench of Justice Bechu Kurian Thomas dismissed the instant application for anticipatory bail by observing that application for anticipatory bail is not maintainable as an accused, if arrested for a bailable offence has to mandatorily be released on bail by the investigating officer. 

The question that was posed  for consideration in this application for anticipatory bail under section 438 of the Code of Criminal Procedure, 1973, is whether offence under section 21 of the Protection of Children from Sexual Offences Act, 2012 is bailable or non-bailable.

Petitioners were accused persons against whom cases were registered under sections 376(2)(n) and 376AB of the Indian Penal Code, 1860, apart from sections 4, 3(b), 3(d), 6(1), 5(f), 5(l), 5(m) & 21 of the Protection of Children from Sexual Offences Act, 2012 were  alleged.

It was the case of the prosecution that in the month of May 2022, the first accused took the victim, aged 9 years, to the bathroom of a Yathimkhana, and sexually assaulted the minor girl by sucking and inserting his finger into her private parts and repeated the offensive conduct on many days. Petitioners were alleged to have failed to report the offence even after becoming aware of the said offensive conduct.

After considering the rival contentions of the parties, the Court noted that on  a reading of the prosecution case, it was  evident that the investigating officer did  not have a case that accused two  to four  had either committed any sexual assault or even abetted the offence committed by the first accused. 

Petitioners were alleged to have committed only the offence under section 21 of the POCSO Act. The said section makes the failure to report an offence punishable with imprisonment upto six months or if the person is in charge of an institution or company, imprisonment upto one year, the Court noted. 

Reliance was placed on the judgment in  State of Maharashtra and Anr. v. Dr. Maroti s/o Kashinath Pimpalkar. 

In view of the same, the Court noted that there was  no doubt that the offence under section 21 of the POCSO Act, which deals with failure to report the offence against a child, was  a serious offence. 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, the Court further stated. 

Thus, the said statutory provision was taken into account. It was further noted by the Court that if the statute declares a particular offence is bailable or non-bailable, the said offence has to be treated in the said manner. However, if the statute does not declare so, reference has to be made to the schedule attached to the Cr.P.C. 

A perusal of the provisions of the POCSO Act reveals that the statute does not, by itself, declare section 21 to be a non-bailable offence. As mentioned earlier, when there is no reference in the statute treating a particular offence is bailable or non-bailable, reliance has to be placed on the Schedule to the Cr.P.C.

 A reading of the Schedule to Cr.P.C. 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, the Court thus observed. 

“It is also elementary that an application for anticipatory bail is not maintainable when the offence is bailable. In cases where the offence alleged is only bailable, bail is a right, and it cannot be denied”, the Court further remarked. 

In such circumstances, application for anticipatory bail was held to be not maintainable  and the application was  dismissed.