KARNATAKA HIGH COURT
B.V. Nagarathna and M.G. Uma, JJ.
Hanumantha Mogaveera – Petitioner
versus
State of Karnataka by Women Police Station, UDUPI – Respondent
Criminal Petition No.2951 of 2020 Connected with Criminal Petition No.3000 of 2020
Decided on 23.4.2021

IMPORTANT POINTS
(1) Statement recorded under Section 164 of Cr.P.C. made in the course of investigation by the victim child, cannot be considered as evidence recorded under Section 35 of POCSO Act.
(2) If there is a delay in recording evidence of child, Special Court has to give reasons for delay. Reasons must be strong enough for being accepted.
(3) Non-compliance of Section 35 of POCSO Act cannot be basis for releasing accused on bail as that would be a misreading of provision.

Headnote:

(A) Protection of Children from Sexual Offences Act, 2012 – Section 35 – Criminal Procedure Code, 1973 – Section 164 – Constitution of India – Article 15(3) – Whether evidence which has been recorded under Section 164 of Cr.P.C. can be considered to be an evidence under Section 35 of POCSO Act – Statement recorded under Section 164 of Cr.P.C. made in the course of investigation by the victim child, cannot be considered as evidence recorded under Section 35 of POCSO Act – Statement under Section 164 of Cr.P.C. is during course of investigation or at any time afterwards before commencement of trial – But, evidence recorded before Special Court under Section 35 of POCSO Act is during course of trial – Two cannot be equated and neither are they on same plane – Section 35 of POCSO Act does not deal with recording of statement of a child, but recording of evidence of child and disposal of case – Section 35 of POCSO Act, being under a special enactment, would prevail over general provisions of Cr.P.C., particularly when there is any inconsistency between said Section and Cr.P.C., as per provisions of Section 42A of POCSO Act. (Paras 21, 22, 23 and 38)

(B) Criminal Procedure Code, 1973 – Section 164 – Protection of Children from Sexual Offences Act, 2012 – Section 35 – Recording of evidence of child – Period of thirty days of taking cognizance of offence by Special Court – That is the ideal mandate to be followed – But, if recording of evidence does not take place within stipulated period, it does not mean that evidence recorded thereafter would lose its sanctity or is to be discarded – If there is a delay in recording evidence of child, Special Court has to give reasons for delay – Reasons must be strong enough for being accepted and sufficient in law to absolve Special Court for not recording evidence of child within stipulated period – But, if for any reason evidence of child is not recorded within stipulated period, then same cannot be discarded only on that score – There may be cases where child, on account of passage of time, would not be in a position to recollect relevant facts of case, or due to trauma and being affected mentally or physically may not be in a position to testify before Special Court, if there is a delay in recording such evidence – In order to receive pure and sacrosanct evidence of child victim, time stipulated is within a period of thirty days of taking cognizance of offence and any delay in doing so must be supported by reasons. (Paras 23 and 24)

(C) Protection of Children from Sexual Offences Act, 2012 – Section 35 – Recording of evidence of child – Non-compliance of Section 35 of POCSO Act cannot be basis for releasing accused on bail as that would be a misreading of provision – Docket explosion under POCSO Act is not commensurate with sufficient number of Special Courts being constituted with requisite human resources as well as infrastructure – It may be practically impossible for trial court to conclude trial within one year from date of cognizance by said Court in a majority of cases – But, that does not give a right to accused to seek bail for reason that mandate under Section 35 of POCSO Act has not been completed – Object and purpose of Section 35 of POCSO Act is to ensure that victim child is secured from trauma of trial of case at the earliest so that she or he could be rehabilitated and reintegrated into society at the earliest – Said provision is not to be interpreted in favour of accused so as to mandate release of accused, if for any reason, evidence is not recorded within a period of thirty days of taking cognizance of offence or Special Court not completing trial within a period of one year from date of taking cognizance of offence. (Paras 49 and 50)

Result:Reference answered. Directions issued.