Case Note & Summary
The case involved two criminal petitions filed before the Karnataka High Court by the accused, Hanumantha Mogaveera, seeking bail under Section 439 of the Code of Criminal Procedure, 1973 in connection with Crime Nos. 14/2019 and 16/2019 registered at the Women Police Station, Udupi. The accused faced charges under Sections 376(1), 376(3), 377, 506 of the Indian Penal Code, 1860, various sections of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The allegations were that the accused, along with another, entered a child care institution at night and sexually assaulted the minor victims residing there. The single judge, while considering the bail petitions, noted the accused's argument that the mandatory timelines under Section 35 of the POCSO Act had not been complied with: the child's evidence was not recorded within 30 days of taking cognizance (which occurred on 13.05.2019), and the trial had not been completed within one year, thus entitling him to default bail. The accused relied on an earlier coordinate bench decision in Vinay v. State of Karnataka, which had granted bail on similar grounds. The single judge doubted the correctness of Vinay, emphasizing the phrase 'as far as possible' in Section 35(2) of the POCSO Act, and dismissed the bail petitions on merits. However, observing that there were conflicting views among coordinate benches, the single judge referred two questions of law to a larger bench: first, whether a statement recorded under Section 164 Cr.P.C. could be considered evidence under Section 35 POCSO Act, and second, whether non-compliance with the time limits under Section 35 amounted to a default clause conferring a right to bail. A special Division Bench comprising Justice B.V. Nagarathna and Justice M.G. Uma was constituted by the Chief Justice to answer the reference. The order reproduced the points of reference, set out the factual background, and began discussing the legal framework by recapitulating the Convention on the Rights of the Child, but the available text ends abruptly without a substantive ruling on the referred issues.
Headnote
A) Criminal Procedure - Evidence of Child Victim - Recording of Statement - Code of Criminal Procedure, 1973, Section 164; Protection of Children from Sexual Offences Act, 2012, Section 35 - The reference raised the issue whether a statement recorded under Section 164 Cr.P.C. constitutes evidence under Section 35 of the POCSO Act, which mandates recording the child's evidence within 30 days of cognizance. The matter was referred due to conflicting views; no decision was rendered in the given order (Paras 1, 10). B) Criminal Procedure - Default Bail - Non-Compliance with Time Limits - Protection of Children from Sexual Offences Act, 2012, Section 35(2) - The reference asked whether failure to record child's evidence within 30 days or complete trial within one year from cognizance entitles the accused to default bail, considering the expression 'as far as possible'. The single judge doubted the view in Vinay v. State of Karnataka which treated the provision as mandatory; the Division Bench was constituted but the order text ends without resolution (Paras 1, 9).
Issue of Consideration
1. Whether the evidence which has been recorded under Section 164 of Cr.P.C. can be considered to be an evidence under Section 35 of the POCSO Act? 2. If the evidence of the child has not been recorded within a period of thirty days of taking cognizance of the offence, and if the Special Court does not complete the trial within a period of one year from the date of taking cognizance, whether accused is entitled to be released on bail holding that it is a default clause which gives a right to the accused?
Final Decision
The single judge dismissed the Criminal Petitions on merits, holding that no case was made out for bail. The single judge further referred two questions of law to a Division Bench. The Division Bench, specially constituted, initiated consideration but the available order text does not contain a final answer to the referred questions.
Law Points
- Recording of child victim's evidence under Section 35 POCSO Act
- evidentiary value of statement under Section 164 Cr.P.C.
- default bail under Section 35(2) POCSO Act
- interpretation of 'as far as possible' in procedural timelines
- balancing child rights and accused's liberty under Article 21
