In a landmark judgment, the Himachal Pradesh High Court has declared that not reporting a crime under the Protection of Children from Sexual Offences (POCSO) Act is a bailable offence. This ruling aligns with similar decisions previously made by the Kerala and Karnataka High Courts, setting a significant precedent in the legal interpretation of the POCSO Act.
Justice Rakesh Kainthla, presiding over the case, made a crucial observation regarding the classification of offences under the POCSO Act. He stated,
“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 case that led to this ruling involved an FIR registered for offences under Sections 376, 506 of the IPC, Sections 6 and 21 of the POCSO Act, and Section 67 of the Information Technology Act. The petitioner, who was not initially an accused in the FIR, was later implicated under Section 21 of the POCSO Act for failing to report a crime that allegedly occurred in a hotel he managed. According to the police, the main accused had raped a minor at this hotel. Despite the victim visiting the hotel four times in her school uniform, the hotel manager and owner did not report the incident to the police.
In response to these allegations, the petitioner sought anticipatory bail, arguing that the offence under Section 21 of the POCSO Act is bailable. Justice Kainthla upheld this view, stating,
“No other precedent to the contrary was brought to the notice of the Court. Therefore, the plea that the offence punishable under Section 21 is bailable is upheld.”
However, the court noted that the petition for anticipatory bail was not maintainable since the accused is entitled to be released on bail even otherwise upon furnishing bail bonds. Justice Kainthla referred to Section 438 of the CrPC, which deals with anticipatory or pre-arrest bail, and clarified,
“The bare perusal of the Section shows that it applies to the non-bailable offence. The reason is that a person accused of a bailable offence is entitled to bail as a matter of right.”
This judgment by the Himachal Pradesh High Court provides a clear interpretation of the bailable nature of offences under Section 21 of the POCSO Act. It underscores the importance of understanding the nuances of the Act, especially in cases involving the failure to report crimes against children.
