In a case registered for the commission of offences punishable under Sections 376 and 506 of the IPC, Sections 6 and 21 of the Protection of Children from Sexual Offences Act (POCSO Act), and Section 67 of the Information Technology Act, the bench of Justice Rakesh Kainthla was handling a petition filed for pre-arrest bail. The victim in this instance was a 10+2 student. During a school tournament in September 2022, the primary accused gave the victim some drugs and then brought her to a hotel, where he made an explicit film and sexually assaulted her.
The Himachal Pradesh High Court has heard arguments over whether or not failing to disclose offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) makes a criminal susceptible to bail. Section 21 of the POCSO Act stipulates that omitting to report child sexual abuse can result in a maximum six-month jail sentence for people and a year-long punishment for those in charge of institutions.
The petitioner sought anticipatory release, arguing that he was innocent of any wrongdoing at the hotel that he owned and operated. The police claim that the petitioner neglected to disclose the child’s rape that took place at the hotel. The primary subject of dispute was whether or not the offence was bailable under Section 21 of the POCSO Act. The police stressed the seriousness of the behaviour, but the petitioner argued for anticipatory bail, alleging ignorance of the offence.
Judge Rakesh Kainthla stressed that a criminal may be subject to bail if they refuse to disclose offences under the POCSO Act. The court noted that although the POCSO Act is silent on the subject, the Code of Criminal Procedure (CrPC) determines the nature of the offense. Invoking the CrPC in any proceedings before a Special Court, including bail requests, is clearly stated under Section 31 of the POCSO Act. The court underlined that an offence is bailable and non-cognizable if the punishment is less than three years, using the CrPC’s classification of offences. Because Section 21 of the POCSO Act prescribes a maximum sentence of one year in jail, the court decided that it is an offence for which bail is required.
The POCSO Act Section 21 offence of failing to notify is a criminal subject to bail, as the court upheld. The petitioner’s request for anticipatory bail was rejected since the accused is legally eligible to bail and the offence was one that may result in bail. The court stressed that the petition could not be maintained under Section 438 of the CrPC, which addresses anticipatory bail, because the current offence is bailable. The petition is limited to offences for which bail is not required.
