Bail Application Of Accused Allegedly Found In Commission Of Bailable Offence Shouldn't Be Rejected: Orissa High Court To POCSO Courts

The High Court was considering a bail application filed U/S.483 of BNSS by the petitioner for grant of bail in connection with a case registered under Section 74 of read with Sections 12/21(2) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The Single Bench of Justice G. Satapathy asserted, “From the materials placed on record and the specific allegation raised against the petitioner in this case, the culpability of the petitioner being for commission of offence only U/S. 21(2) of the POCSO Act which provides for maximum imprisonment of one year and with fine, the learned special Court should not have remanded the accused petitioner to custody by refusing bail to him, but the learned Special Court has failed to take notice of the allegation and erroneously remanded the petitioner to custody by refusing to grant bail in gross-violation of Article 21 of the Constitution of India.”

The Bench ordered, “The learned Registrar General, High Court of Orissa, is requested to circulate the soft copy of the aforesaid judgment to all the Courts dealing with offences under POCSO Act for guidance, so that bail application of the accused person allegedly found in commission of bailable offence shall not be rejected. Accordingly, the BLAPL stands disposed of.”

Senior Advocate S.C.Mohapatra represented the Petitioner while Addl. Public Prosecutor C. Mohanty represented the Respondent.

Factual Background

The victim girl was a student of the school where the petitioner was employed as the Principal. It was alleged that the victim girl was subjected to sexual harassment and misbehaviour by an accused Math Lecturer, and she had accordingly lodged a complaint before the petitioner about the harassment of her by the accused. However, it was claimed that the petitioner, being the Principal of the College, suppressed the matter in nexus withthe co-accused despite the accused Teacher admitting to the guilt.

The inaction on the part of the petitioner led the victim to make a complaint before the Sub-Collector. On this fact, a Zero FIR came to be registered and the petitioner approached the Court for the grant of pre-arrest bail. An order was passed directing the petitioner to surrender before the Court in seisin over the case and move an application for his release on bail. It was in such circumstances that the bail application came to be filed.

Reasoning

The Bench, at the outset, explained that although the POCSO Act although is a self contained Act with respect to definition of offences enumerated therein and the punishment prescribed thereon as well as the procedure required to be followed in the proceedings before the Special Court, but it does not provide for the classification of offences as to whether they are cognizable/non-cognizable and bailable/non-bailable. However, individual punishment has been prescribed for each of the penal offences along with its definition/ingredients.

The Bench noted that the facts demonstrated allegations against the petitioner in the capacity of Principal for not reporting to the police the commission of offence of sexual harassment as contemplated under section 12 of the POCSO Act against the victim girl student by the accused math teacher despite the same being brought to knowledge of him by the victim girl student through a complaint and thereby, the petitioner was alleged to have abdicated his duty cast upon him by the provision of Section 19 read with Section 21(2) of the POCSO Act.

The Bench was of the view that such allegation is subject to proof in the trial, however, such allegation gives rise to penal action against the petitioner for commission of offence under section 21(2) of the POCSO Act which provides with maximum punishment for imprisonment of one year and thereby, the allegation against the petitioner discloses commission of bailable offence in view of item no.3 of table-II of the first schedule of BNSS/CrPC.

“It is not in dispute that all the offences under POCSO Act are triable by a Special Court who is normally Court of Sessions, to be notified by the State Government in consultation with the Chief Justice of the High Court as per Sec. 28 of the POCSO Act and such Special Court is also empowered by Sec. 33(1) of the POCSO Act to take cognizance of any offence without the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such facts”, it added.

It was further noticed that despite making an in-depth analysis of facts and allegations raised against the petitioner, the trial Court rejected the bail application of the petitioner and remanded him to custody. Thus, allowing the bail application, the Bench ordered the petitioner to be released on bail in accordance with law by the Court in seisin over the matter.

Cause Title: Ramesh Chandra Sahoo v. State of Orissa (Case No.: BLAPL No.10425 of 2025)

Appearance

Petitioner: Senior Advocate S.C.Mohapatra, Advocate S.Mohapatra

Respondent:Addl. Public Prosecutor C. Mohanty,

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