Point of law: POCSO Act – To appoint competent Special Public Prosecutors exclusively attached to the Special Courts dealing with matters under the POCSO Act, so that the time-frame under Section 35 of the POCSO Act in recording evidence and concluding with the trial and adjudication is as per the said provision.

ORDER :

B.V.Nagarathna, J.

As per the special order of Hon'ble the Chief Justice dated 12.01.2021, this Bench has been constituted to consider the Reference made by the learned single Judge of this Court under the provisions of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as "POCSO Act", for the sake of brevity) and Section 164 and other provisions of the Code of Criminal Procedure, 1973 (“Cr.P.C.,” for short). Although the petitions have been dismissed, nevertheless, learned single Judge has made a Reference to a Division Bench in the following terms:

"26. At this juncture, it is brought to the notice of this Court that when already the co-ordinate Bench in the case of Vinay Vs. State of Karnataka, rep. by Special PP, (supra) and other two co-ordinate Benches have taken a different view and this Court is taking a different view, then under such circumstances, the matter has to be referred to the Larger Bench to consider the aspect of laying down the law. In that light, I am of the considered opinion that the matter requires to be referred to the Larger Bench to consider the following issues:

(i) 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?

(ii) 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?

Registry is directed to place the matter before Hon’ble the Chief Justice for obtaining necessary orders to refer the same before the Larger Bench to decide on the above questions."

BRIEF FACTUAL BACKGROUND:

2. For the purpose of answering the questions extracted above, it is necessary to give a brief factual background to the reference in these cases. Criminal Petition No.2951 of 2020 and Criminal Petition No.3000 of 2020 were filed by accused No.1 seeking grant of bail in Crime Nos.14/2019 and 16/2019 of Women Police Station, Udupi, for the offences punishable under Sections 376(1), 376(3), 377, 506 of IPC; Sections 5(f)(i)(o)(p), 6, 21(2) of the Protection of Children from Sexual Offences Act, 2012 (‘the POCSO Act’ for short); and Sections 3(1)(w)(i)(ii), 3(2)(v), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3. The case of the prosecution in brief is that Crime No.14/2019 was registered by the Women Police Station, Udupi, on the basis of the first information lodged by the informant/Warden of the Child Care Institution viz., Spoorthi Adoption and Fit Institution. Further, Crime No.16/2019 was registered by the same Police Station in respect of the same incident on the basis of the first information lodged by the victim against the accused for the aforesaid offences.

4. In Criminal Petition No.3000/2020, the victim filed the complaint and in Criminal Petition No.2951/2020, the Protection Officer/Warden of District Children Protection Unit, Manipal, lodged a complaint alleging that the victim was residing at Spoorthi Adoption and Fit Institution and children therein are given in adoption also. It is further alleged that one Kum.Panchami has been given in adoption, but because of some differences between the adopted child and the family, adoption was cancelled and the child started staying in Spoorthi Institution. It is further alleged that the petitioner-accused No.1 used to enter the institution during night hours and have sexual intercourse with the victims who are staying in the said Institution. It is further stated by the victim herself that the petitioner-accused No.1 and accused No.2 also used to enter the hostel illegally and used to sexually assault them. As stated earlier, on the basis of the complaints filed by the Warden and the victim, cases in Cr