Delhi court grants POCSO accused bail after notice not served to him, ‘warns' police to be careful in future
A Delhi Court last week granted bail to a man accused of sexually assaulting a minor under the Protection of Children against Sexual Offences (POCSO) Act, citing procedural lapses by the police.
'As per this reply, the notice u/s 35(3) BNSS was served to the father of the accused. The considerable fact is that notice is required to be served to the accused, and if the accused is not traceable, then it would be served to any of his family members. In the present matter, there is no such fact on record that the accused was not traceable…,' said Additional Sessions Judge Amit Sahrawat of Rohini Court in his order dated May 24.
Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita states that a 'police officer shall, in all cases where the arrest of a person is not required under sub-section (1) issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.'
The prosecution, which was represented by Special Public Prosecutor Vineet Dahiya, submitted before the court that they had arrested the accused because he didn't have a place to stay in Delhi, and he didn't cooperate in the investigation. They also argued that he could threaten the victim.
'Regarding the grounds of arrest, it is observed that the father of the accused was traceable… The accused could appear for investigation on same day of serving notice, and thus there is no merit in the ground that there was no proper place or address of the accused,' the court said 'warning' the investigating officer, station house officer, and assistant commissioner of police 'to be careful in future'.
'As far as it is concerned that the accused was not disclosing facts about the incident, then it is the fundamental right of the accused to remain silent as per Article 20 of the Indian Constitution,' the court observed.
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