In 2013, 69 persons were arrested in 72 Pocso cases, and all 69 got bail. The next year, of the 263 persons arrested in 283 cases, 235 were granted bail. In 2015, 238 persons were arrested in 263 cases and 167 were released on bail.
Only last week, the Karnataka High Court cancelled the bail of a man accused in a Pocso case. He had been granted bail by a Chikkamagaluru court. The high court observed: “One cannot forget that the case concerns an offence committed on a girl aged 17; she will be a ‘child’ for all practical purposes… The judge has not kept in mind the gravity of the offence, nature of allegation and punishment contemplated thereof… (he) should have taken up the case for trial at the earliest… Granting bail on the grounds that a chargesheet is being filed and the accused is in judicial custody for six months in such serious cases is incorrect and improper.”
Child welfare activists say the high court’s concern is understandable, given that in a large number of sexual offences committed against children, the accused is known to the survivor. They say such a person when out on bail can not only tamper with evidence but traumatize the survivor again.
According to a study by National Law School of India University’s (NLSIU) Centre for Child and the Law in Delhi, in 80% of the Pocso cases this year, the accused was known to the survivor. The study found that a large number of the cases end up in acquittals (conviction rate 16.8%) because the survivor turns hostile.
“In a majority of the cases, the perpetrator is known to the child. Granting bail, especially because we don’t have a victim and witness protection programme, can explain the large number of acquittals on the grounds of the survivors turning hostile. The accused may not meet the survivor or her family directly, but could definitely put pressure through family and friends,” said Seema Diwan, president of Talaash Association and a member of the the Child Welfare Committee.
Seeing his or her tormentor could leave the survivor distressed. It is crucial that the survivor’s family is informed of the accused getting bail, said Kushi Kushalappa of the NGO Enfold, adding, “In many cases this does not happen and when the survivor or her family and the accused run into each other, it is very traumatic.”
“When a bail plea is approved, some conditions are set keeping the survivor’s safety in mind. But who ensures they are not violated?” wondered Kushi. “There have been cases of the survivor’s family being coerced into settlements, with the accused approaching them through friends and family and sometimes through public prosecutors and cops,” she added.
FIR is crucial, say advocates
Police claim it is not easy to get bail under the Pocso Act. “These cases are treated are treated as seriously as murder. It is usually very difficult to get bail,” said a police officer on the condition of anonymity.
But the legal fraternity has another story to tell. “Many police stations use the same template for FIRs. Unless the vital points of each case are presented in the copy of the written complaint and are properly explained to the judge, there’s a possibility of the FIR appearing false or frivolous. It could result in the accused getting bail easily,” said Ganapathy Prasanna, a former special public prosecutor.
Advocate GV Ashok, who has handled several Pocso cases, feels a combination of the law and the practice being on the ground makes it easy to obtain bail. “Information in sexual abuse cases reaches police late. A DNA test report takes two years. Bail applications will not wait for that long. It is a matter of concern that police are extremely dependent on forensics. With only the survivor’s statement available at the time of the bail plea being heard, the innocence or guilt of an accused cannot be established,” he explained.
The child abusers
Neighbours: 29%
Relatives: 20%
Acquaintances: 15%
*Acquaintances included brother’s friend, shopkeeper, van driver, doctor, employer, former tenant, moneylender, domestic help, watchman, religious leader and fiance of sister
*Source: Study condcuted by NLSIU’s Centre for Child and the Law in Delhi
Year
Reported cases
Arrested
In judicial custody
Out on bail
2013
72
69
69
2014
283
263
28
235
2015
263
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