Point of Law : Section 2(a) of Cr.P.C. defines bailable offence as "an offence which is shown as bailable in First Schedule, or which is made bailable by any other law for time being in force."

ORDER :

Is section 21 of the Protection of Children from Sexual Offences Act, 2012 bailable or non-bailable? The said question arises for consideration in this application for anticipatory bail filed under section 438 of the Code of Criminal Procedure, 1973.

2. Petitioners are accused 2 to 4 in Crime No.425 of 2022 of Cheruthuruthi Police Station. Initially, there was only one accused against whom offences punishable under sections 376(2)(n) and 376AB of the Indian Penal Code, 1860, apart from sections 4, 3(b), 3(d), 6(1), 5(f), 5(l) and 5(m) of the Protection of Children from Sexual Offences Act, 2012 (for short 'the POCSO Act') are alleged. Later, an additional report was filed, arraying petitioners as accused 2 to 4, after including section 21 of the POCSO Act as committed by them

3. Prosecution alleges that in the month of May 2022, the first accused took the victim, aged 9 years, to the bathroom of a Yathimkhana, and sexually assaulted the minor girl by sucking and inserting his finger into her private parts and repeated the offensive conduct on many days. Petitioners are alleged to have failed to report the offence even after becoming aware of the said offensive conduct.

4. Sri. Nireesh Mathew learned counsel for the petitioners, contended that the prosecution allegation against petitioners herein does not make out any offence at all, as they have no involvement in the main offences alleged. The learned counsel also pointed out that petitioners are roped in as accused only under Section 21 of the POCSO Act, on an assumption that they were aware of the incident of sexual exploitation committed by the first accused and that they failed to intimate the police. According to the learned Counsel, petitioners were unaware of the incident and the moment they became aware of it, they acted in accordance with law. The learned counsel further submitted that, even though the offence under section 21 of the POCSO Act is a bailable offence, the police are proceeding to initiate steps to arrest the petitioners and therefore, they apprehend arrest in the crime.

5. Smt. M.K. Pushpalatha, learned Public Prosecutor though opposed the grant of bail, contended that the petitioners are alleged to have committed a serious offence since they failed to intimate the incident of rape even after it came to their knowledge and, therefore, custodial interrogation is essential.

6. I have considered the rival contentions and have also perused the statement given by the victim.

7. According to the victim, the first accused had sexually assaulted her, and on hearing her cries, accused 2 to 4 came over and tried to console her. Later, accused 2 to 4 had sent away the first accused from the Yathimkhana but failed to report the crime to the police.

8. On a reading of the prosecution case, it is evident that the investigating officer does not have a case that accused 2 to 4 had either committed any sexual assault or even abetted the offence committed by the first accused. Petitioners are alleged to have committed only the offence under section 21 of the POCSO Act. The said section makes the failure to report an offence punishable with imprisonment upto six months or if the person is in charge of an institution or company, imprisonment upto one year.

9. Recently, the Supreme Court had, in State of Maharashtra and Anr. v. Dr. Maroti s/o Kashinath Pimpalkar (2022 Livelaw (SC) 898) held that the offence under section 21 of the POCSO Act is a very serious offence. Relying upon the decision in Shankar Kisanrao Khade v. State of Maharashtra [(2013) 5 SCC 546)] it was observed that “The non-reporting of the crime by anybody, after having come to know that a minor child below the age of 18 years was subjected to any sexual assault, is a serious crime and by not reporting, they are screening the offenders from legal punishment and hence be held liable under the ordinary crimina