Facts: In this case, the Court has expressed its concern regarding the delay in framing of charges and recording the statement of the survivor being a ground on which bail application are regularly filed.
Decision: While referring to Section 35 of the Act, the Court states that for taking cognizance, it is not necessary for a Special Court to wait for committal of the case or production of the accused. “To save time, it is required that the Special Court goes through the records, if there is material in respect of the offences alleged, shall take cognizance. Thus, the time to be spent for production of the accused to take cognizance can be saved.” The Court further held that “…the stage prior to recording of the evidence is highly crucial for the Court. Since the time contemplated under sub-Section 1 of Section 35 of the Act has already started ticking and running. In that view of the matter, it is required for the Court at that stage as far as possible not to give any adjournments for the purpose to hear before charge and for framing of charge only. If the accused is in custody, within a short adjournment the victim shall be summoned to record the evidence.”
The Court also recognized that “…it would be traumatic for the child to recall the details of the horrible experience. The other side of the story could be, the child could have been tutored under the guise of brushing his/her memory before commencement of recording of the evidence. In either way, there is likelihood of miscarriage of justice. It is said that time is the best healer, who knows that by passage of time victim and family members may give up and may not like to submit themselves for the hassles of cross-examination and Court procedure. Non-appearance of witnesses in the present case probabilises one such cause.
It may be true that the Special Court is flooded with large number of cases under the General Law and also under other special statute, but the importance of recording of the evidence under Section 35(1) of the Act cannot be lost sight of for whatever reason. The Special Courts constituted under the Act henceforth shall keep in mind their obligation under Section 35(1) of the Act and shall not excuse themselves on the ground of heavy load of work, lack of time, non-production of properties etc. The Investigating Officer or his successor at the relevant point of time shall also bind over himself to the mandate of Section 35(1) of the Act, though there is no such separate express provision for him. If the Presiding Officer notices callous attitude on the part of the Investigating Officer in producing the properties (as in this case), the same shall be brought on bench in the ‘crimes’ meeting held with the Police Officers of the District and the matter shall be brought to the notice of the superior Police Officers. Even if the Investigating Officer fails to produce the property on the date called for, that shall not stop the Court from recording the statement of the victim child and adjourn the case to fix further date of trial. The Special Courts from this date onwards shall comply the mandate of Section 35(1) of the Act in its letter and spirit.”
Facts: In this case, a bail application was filed on the grounds that the evidence of the child had not been recorded within the time period stipulated in Section 35(1) of the POCSO Act.
Decision: The Court observed:
“It is true as per Section 35(1) of the said Act, the evidence of the child shall be recorded within a period of thirty days by the Special Court taking cognizance of the offence and the reasons for the delay, if any, shall be recorded by the Special Court. Admittedly, in this case, cognizance of the offence has been taken by the Court below on 20.01.2017 and within a period of 30 days, in compliance of Section 35(1) of the Act, the evidence of the victim girl is not recorded, but only on that ground it cannot be said that the entire case of the prosecution is to be disbelieved or it is to be brushed aside and bail order is to be granted to the petitioner. Even if, the evidence is not recorded within a period of thirty days, the concerned Court has to record the reasons of the delay, if any.”
Nipun Saxena and Ors. v. Union of India (UOI) and Ors., 2019 (2) SCC 703 [Supreme Court of India, 2 Judge Bench]
In this case, the Supreme Court adopted the directions issued by the Calcutta High Court in the case of Bijoy v. State of West Bengal, MANU/WB/0140/2017 : 2017 Cri.L.J. 3893. It directed that he Special Court shall ensure that the trial in cases under POCSO is not unduly protracted and shall take all measures to conclude the trial as expeditiously as possible preferably within a year from taking cognizance of the offence without granting unreasonable adjournment to the parties in terms of Section 35(2) of the Act.
The Supreme Court further directed that a copy of this judgment be sent to the Registrar General of all the High Courts so that the same can be placed before the Chairpersons of the Juvenile Justice Committee of all the High Courts for issuance of appropriate orders and directions and also to ensure that sincere efforts are made to set up one stop centres in every district.
Shubham Vilas Tayade v. The State of Maharashtra, MANU/MH/0178/2018 [Bombay High Court, Single Judge]
Facts:In this writ petition the orders challenged were: the order dated 2nd March 2016 allowing the prosecution application for recording of evidence of victim of crime and also the order dated 18th December 2017 allowing application of the petitioner to grant him copies of audio-video recording and defer recording of evidence of the victim till that time.
Decision: The Court observed:
“7. Even otherwise, Section 35 of the POCSO Act allows the Special Court taking cognizance of the offence to record evidence of the child after a period of thirty days from the date on which cognizance of the offence has been taken. The only rider in this regard imposed by the provision of law is that the Court must record reasons for the delay. In the present case, while allowing recording of evidence after a period of thirty days from the date of taking of cognizance, the Special Court did not record any reasons for the delay. But, the deficiency would have to be considered only as an irregularity in the light of the petitioner not raising any specific objection to the application vide exhibit 24. If the petitioner had raised objection and showed that there was any possibility of prejudice being caused to his defence, the case would have been different and perhaps, the challenge now made to the order dated 2nd March 2016 by the petitioner would have been required to be considered in the perspective of the prejudice factor. This is not the case here and, therefore, I do not think that failure of the learned Special Judge to record reasons for belated recording of the evidence of the victim has resulted in an illegality, causing prejudice to the defence of the petitioner.”
Maria Kuttubudin Lokhandwala v. The State of Maharashtra and Ors., MANU/MH/2565/2019 [Bombay High Court, Single Judge]
Facts:In this case, permission to travel abroad granted to the accused was challenged on the anvil of Section 35 of the POCSO Act.
Decision: The Court observed:
“11. It is pertinent to mention at this stage that, while granting permission to the accused to travel abroad, the learned Special Judge has lost sight of the provisions of Section 35 of the POCSO Act wherein it is specifically prescribed that the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. It would be apposite to re-produce the said provision for the sake of ready reference:-
“35 Period for recording of evidence of child and disposal of case:-
- The evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Special Court.
- The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of offence.”
12. Obviously the offence is registered against Respondent No. 2/Accused in the year 2016. The accused filed application for discharge which came to be rejected by the Special POCSO Court by order dated 30/07/2019. While rejecting the application for discharge, the Special Judge observed that the present case is under POCSO Act and, presumption under Section 29 of POCSO Act is that the accused has to prove contrary. The Special Judge in paragraph 13 of the said order has specifically opined thus:-
“In the circumstances I am of the opinion that the accused has to put to the trial and let prosecution witnesses to lead evidence. In the light of statement of psychiatric and victim’s statement before Magistrate the accused can not be discharged.”
13. Considering provisions of Section 35 of the POCSO Act and also the fact that the FIR has been registered in the year 2016 and charge sheet has already been filed and the Trial Court even did not bother to frame the charge, if Respondent No. 2/accused is permitted to travel abroad for 10 months, it would defeat the legislative intent and mandate as reflected in Section 35 of the POCSO Act. The reason that there are pendency of 110 cases of under trial prisoners and High Court time bound/expedite cases as also the work of bail applications assigned to the said Court and therefore, present matter cannot be taken for hearing for at least one year, cannot be said to be a plausible reason in the eyes of law.
14. It is also required to be noted that POCSO is a special enactment and brought into force to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. In clause (4) of the Statement and Objects and Reasons of the POCSO Act, it is specifically provided as under:-
“(4) It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of Children from the offences of Sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences.”
15. Considering the serious allegations levelled against the accused i.e. Respondent No. 2 herein and, the offence is registered under POCSO Act, the Special Court ought to have taken into considering the mandate of Section 35 of the POCSO Act. It is important to mention that the right to speedy trial is held as fundamental right of the accused under Article 21 of the Constitution of India. Therefore Respondent No. 2 shall get an opportunity at the earliest to prove his innocence. At the same time, the prosecution must also get an opportunity to prove its case at the earliest. In the light of discussion herein above, the observations made by the learned Special Judge that, matter cannot be taken for hearing for at least one year, would run contrary to the object of bringing Special Legislation into force, so also mandate of Section 35 of the POCSO Act and the judgment of the Hon’ble Supreme Court taking a view that the right to speedy trial is a fundamental right of the accused.”
Criminal Petition No. 9519 of 2017
Facts: In this case, the issue was whether non-compliance with Section 35(1) of the POCSO Act could be a ground for bail.
Decision: The Court observed as follows:
“11. It is true that Section 35(1) of the POCSO Act prescribes the period of 30 days from the date of taking cognizance of the offence by the Special Court for recording the statement of the victim. In Clause (2) of Section 35 of the POCSO Act, no doubt, it is mentioned that the Special Court shall complete the trial “as far as possible” within a period of one year from the date of taking cognizance of the offence. Now the contention of the learned counsel for the petitioner that the case is not disposed of within a period of one year prescribed by the statute i.e. POCSO Act. In support of this contention, he has also relied upon the order passed by this Court, which is circulated to all the courts in the entire State.
12. Perusing provision under Section 35(1) of the POCSO Act regarding recording the statement of the child within a period of 30 days from the date of taking cognizance of the offence and if it is not done, the reasons for the delay, if any, shall be recorded by the Special Court. So the wording in Section 35(1) of the POCSO Act, the reasons for the delay, if any, shall be recorded by the Special Court itself indicates that 30 days period for recording the statement is not strict mandate of the said provision. Not only that, the legislators have anticipated that there may be some practical difficulties that it will not be possible in all the cases to record the statement of victim girl within 30 days. Therefore, it is stated that if there is any delay, the reasons are to be mentioned by the Special Court. Clause 2 of Section 35 of the POCSO Act regarding disposal of the main case itself, the words used that the Special Court shall complete the trial “as far as possible” within a period of one year from the date of taking cognizance of the offence. It may not be possible that in each and every case, the trial should be completed within one year from the date of taking cognizance by the Special Court. Apart from that, the Court has to see the practical difficulties in implementing the provisions. In Bengaluru, there are four Special Courts viz. one is in Rural District and three Courts are in Urban Districts. All the three Courts are heavily burdened with many such cases. It is noticed by this Court that there are Special Courts constituted under Section 28 of the POCSO Act. But they are not dealing exclusively with the matters under the POCSO Act. Even other criminal cases under IPC and other enactments were also made over such Court. Under such circumstances, practically it is not possible for the Presiding Officers in such Courts to strictly adhere to mandate under Section 35(1) and (2) of the POCSO Act. Therefore, the Court has to consider all these aspects in responding the submission made by the learned counsel for the petitioner in arguing the case. Looking to the manner in which the alleged offence is done as against the victim girl, who is aged about 16 years, I am of the opinion that the serious allegations are made against the present petitioner and the object and reasons of POCSO Act has to make the enactment more child friendly. Under such circumstances, I am of the clear opinion that only on the ground that the case is not disposed of within the prescribed period of one year from the date of taking cognizance is not the ground for grant of bail in heinous offence that too prima facie case made out by the prosecution. I have also perused the order of this Court dated 13th July 2017 passed in Criminal Petition No. 1195/2017. Looking to the factual matrix in that case and also for the reasons I have mentioned above, the said order will not come to the aid and assistance of the petitioner in this case. Apart from that, when the statute prescribes the time schedule for the Courts to dispose of the matter, the Presiding Officers working in such Courts must also take it seriously and not casually and they have to make sincere and honest efforts to see that the cases under the provisions of the POCSO Act are to be disposed of as per the time schedule. Hence, considering these aspects of the matter, the petition is hereby rejected. However, with a direction to the concerned Special Court to take up the matter on priority basis and to dispose of the same as early as possible but not later than six months from the date of receipt of the copy of this order.”
Facts: The issue in the case was whether in the facts, the benefit of non-compliance with Section 35 could enure to the benefit of the bail applicant.
Decision: The Court observed:
“7. The main contention of the petitioner’s counsel is that in the earlier bail petition, this petitioner has not raised the ground of Section 35(1) of (2) of the Act and there is changed circumstance, hence, the petitioner may be enlarged on bail. On perusal of the contents of the proviso of Section 35(1) and (2) of the Act, it says that the evidence of the child shall be recorded within a period of thirty days of the Special Court taking cognizance of the offence and reasons for delay, if any shall be recorded by the Special Court, further says that the Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence.
8. On perusal of these two provisos, it is clear that the evidence of the victim has to be recorded within thirty days and trial has to be completed within one year. No doubt, this Court in Crl. P. No. 1195/2017 taking note of the said proviso enlarged the petitioner therein on bail and also directed the Special Court to comply with mandate of Section 35(1) of the Act. On perusal of the Act, it is clear that the Court has to follow the proviso of Section 35(1) and (2) of the Act. Now, the question before this Court is that whether non-compliance of provisions of Section 35(1) and (2) of the Act enures the benefit of granting the bail in favour of the accused. It has to be noted that the special enactment i.e. the Protection of Children from Sexual Offences Act, 2012 was brought in to protect the minor children who are below the age of 18 years. In the case on hand, it has to be noted that the allegation is made against this petitioner and other accused person and they are unknown persons and they came to the house of the complainant to sell the household articles and took mobile number and called the victim after 4-5 days of the said date and again they called the victim and took her in a car and committed rape on her and thereafter, dropped her in the night at about 9.30 p.m.
9. The main contention that there is delay for non-filing the complaint. In a case of heinous offence of rape, delay is not a prime issue and the Court has to take note of the heinous offence of rape, apart from that it has to be noted that the minor, who is aged about 15 years 11 months was subjected to rape and medical examination report says that hymen was torn and she was subjected to sexual intercourse. When such being the circumstances, extending the benefit in favour of the accused by invoking Section 35(1) and (2) of the Act does not arise and statute does not say, if the evidence has not been recorded within stipulated time, the accused gets the benefit of bail and only the Court has to take note of the same and it is the duty and mandate on the part of the Special Judge to commence the evidence; failure on the part of the Court does not enure the benefit of Section 35(1) and (2) of the Act extending the relief in favour of the accused, when the heinous offence has been taken place. Having considered the factual aspects of the matter and material on record, there is clear evidence of subjecting the minor girl to sexual intercourse, hence, I am of the opinion that the petitioner will not get the benefit of order passed by this Court in Crl. P. No. 1195/2017 and having considered the gravity of the offence that too committing the heinous offence of rape against her will, it is not a fit case to exercise the power under Section 439 of Cr.P.C. to enlarge the petitioner on bail.
10. It has to be noted that the Court below failed to consider the proviso of Section 35(1) and (2) of the Act, not recording the evidence within stipulated time and the order sheet discloses that the cognizance was taken in the month of April, 2018 and not yet framed the charges. Hence, it is appropriate to direct the Addl. Registrar Judicial to call for the details from the Special Judge as to why the evidence has not been recorded and how many POCSO cases are pending before the Special Judge under the offence of POCSO Act and why the proviso of Section 35(1) and (2) of the Act has not been complied.”