Introduction: Sushil Kumar v. State of Himachal (Cr. MPM No. 2705 of 2023) involves a petition seeking anticipatory bail. The Himachal Pradesh HC has observed that Section 21 of POCSO Act (any person failing to report or record a case of a sexual offense involving a child be subject to imprisonment for up to six months, a fine, or both.) is a bailable offense, as a result, an application for pre-arrest bail under Section 438 Code of Criminal Procedure (CrPC) is not maintainable.

Facts: The Petitioner faced charges under Sections 21 of the Protection of Children from Sexual Offences Act (POCSO Act). According to the FIR, the main accused had repeatedly sexually assaulted a minor in a hotel managed by the Petitioner. The Petitioner was accused of an offense under Section 21 of the POCSO Act. His involvement was linked to his failure to report the offense, of which he claimed ignorance.

Contention of the Petitioner: The Petitioner asserted that the offense under Section 21 of the POCSO Act is bailable. He claimed unawareness of the crime and expressed willingness to cooperate with the investigation.

Contention of the Respondent: The State opposed the petition, emphasizing the seriousness of the offense and arguing for its dismissal.

Court’s Observation: The Court examined Section 21 of the POCSO Act, noting its silence on the bailability of the offense. It referred to the CrPC, determining that, according to its classification, the offense was bailable.

It stated that it was relying on two precedents i.e., M.H. Gangamaregowdavs State of Karnataka, Criminal Petition No. 8758/2019,and XXX and other vs State of Kerala, Bail Application No. 7673 of 2023. It was held in both these cases that since POCSO Act does not specify the nature of the offense, it must be ascertained by referring to the CrPC. The categorization of offenses under the CrPC  indicates that if the punishment for an offense is less than three years of imprisonment, it is considered bailable and non-cognizable. Therefore, Section 21 of the POCSO Act, which stipulates a punishment of six months to one year, this corresponding offense is deemed bailable in accordance with the provisions of the CrPC.

The judge observed that “….a person accused of a bailable offence is entitled to bail as a matter of right. Therefore, the present petition is not maintainable and the same is dismissed.”

Court’s Decision: The Court upheld the Petitioner’s claim, relying on precedent and statutory interpretation. It concluded that Section 21 of the POCSO Act constitutes a bailable offense, and as such, the Petitioner was entitled to bail.

The Court also stated that Section 438 of CrPC indicates its applicability to non-bailable offenses. This is because individuals accused of bailable offenses have an inherent right to bail. Consequently, the Court deemed the petition inadmissible. Therefore, petition for pre-arrest bail/anticipatory bail was deemed not maintainable and dismissed.

Conclusion: The Court clarified that its observations pertained solely to the disposal of the petition and did not impact the merits of the case. The Petitioner’s claim that the offense under Section 21 is bailable was accepted, leading to the dismissal of the petition for pre-arrest bail.

-By Deeksha Rai