The Karnataka High Court recently commands that press release of a victim kid recorded under Section 164 (Recording of confessions and statements) of the Code of Criminal Procedure (CrPC) can not be thought about as proof recorded under Section thirty-five (Period for the recording of evidence of child and disposal of the case) of the Protection of Children from Sexual Offences Act [H Moogaveera vs the State of Karnataka].
The Court is aforesaid that the statement under Section 164 CrPC is taken throughout the course of the investigation, whereas the statement under Section thirty-five of the POCSO Act is recorded before the special court throughout the course of the trial.
In our read, the recording of the statement under Section 164 of CrPC is before the commencement of the trial, it can not be thought about to be evidence under sub-section (1) of Section thirty-five of the POCSO Act. it's thus ascertained that the statement recorded under Section 164 of Cr.P.C. created inside the course of investigation by the victim kid, cannot be thought-about as proof recorded under Section thirty-five of the POCSO Act," the Court command. command Justices BV Nagarathna and MG Uma of the supreme court.
The judgment was gone along a Bench of Justices BV Nagarathna and MG Uma on a plea for bail by someone suspect under the POCSO Act.
"As already noted, a release under Section 164 of CrPC is throughout the course of the investigation or at any time subsequently before the commencement of the trial. however, the proof recorded before the Special Court under Section thirty-five of the POCSO Act is throughout the course of the trial. the 2 can not be equated and neither square measure they on the same plane," the Court aforesaid.
Accused Hanumantha Mogaveera, UN agency was inactive under the POCSO Act, had approached the state supreme court seeking bail as a result of the proceedings before the special court wasn't completed inside a year as mandated by Section thirty-five of POCSO Act. He relied on the order of a supreme court in Vinay v. State of state to buttress his case.
However, a single judge laid off the plea perceptive that the expression "as so much as possible" used in Section 35(2) of the POCSO Act possesses to be borne in mind whereas reading the intent of the Act. Since this position was in conflict with the order in Vinay, the matter was mentioned a Division Bench. one amongst the queries explicit the Division Bench was as follows:
Whether the proof that has been recorded under Section 164 of CrPC square measure typically thought-about to be Associate in Nursing proof under Section thirty-five of the POCSO Act?
The Division Bench, placed reliance on Supreme Court choices, to hold that as Section 164 of CrPC deals with recording of confessions Associate in Nursingd statements by any Metropolitan or Judicial adjudicator created to him inside the course of an investigation, constant is relatable to Sections twenty-five (Recording of Statement of a toddler by Magistrate) and twenty-six (Additional Provisions relating to a statement to be recorded) of the POCSO Act.
However, once it involves Section thirty-five, the Court ascertained that constantly does not have an effect on recording of statement of a tike, however recording of proof of the kid and disposal of the case.
The Court conjointly proceeded to appear at the extent and that means of Section thirty-five (1) of the POCSO Act that mandates the Special Court to record the proof of the child within an amount of thirty days of taking cognizance of the offense by the Special Court.
That is the right mandate to be followed, the Court opined.
But, if the recording of the proof does not happen inside the stipulated amount, it doesn't suggest that the proof recorded thenceforth would lose its holiness or is to be discarded.
This is as a result of the provision itself speaks that if there is a delay in recording the proof of the kid, the Special Court possesses to grant reasons for the delay, any aforesaid the Court.
In this regard, the Court ascertained that mere non-compliance with Section thirty-five of the POCSO Act will not entitle Associate in Nursing suspect to be free on default bail.
With these observations, the Court rejected the bail application and disposed of the plea.
It is submitted that inaction on part of the respondents in providing no guarantees of medical reimbursement of medical expenses incurred at private semi-private is used for medical treatment. It is submitted that inaction on part of respondents is in gross violation of the rights of the effected members under Articles 14, 19 & 21 of Constitution of India." The plea reads.