Facts
The present bail application was filed by the accused, seeking bail on the grounds that the trial had not been completed within one year. The single judge of the High Court refered the matter to a larger bench to adjudicate on the following issues: (i) whether a statement recorded under Section 164 of the CrPC can be treated as evidence under Section 35 of the POCSO Act; and (ii) whether the non-completion of the trial within one year gives the accused a right to bail.
Judgment
The court examined the evidentiary value of statements made by the child survivors in the course of investigation and held that the statement of the child survivor recorded under Section 164 of the CrPC cannot be considered as evidence for the purpose of conviction as required by Section 35 of the POCSO Act. The court further deliberated on the aims of the Act in mandating expeditious recording of the child survivor’s statement. Accordingly, it held that the requirement of expeditious recording of the child survivor’s evidence under Section 35 of the POCSO Act is for the well-being of the child and cannot be used for the purposes of granting bail to the accused. The court further issued directions for effective implementation of the Act by setting up a required number of Special courts, appointment of special prosecutors and counsellors, among others.
Note:- While a statement recorded under Section 164 of the CrPC cannot be considered as evidence as per this precedent, it would be considered as the examination in chief in the case of children with disabilities, as has been noted in Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (pari materia to Section 164 of the CrPC).
Recalling child survivor under Section 311 of the Code of Criminal Procedure
High Court of Bombay