POSCO| Notice To Victim Necessary When Hearing Accused For Suspension of Sentence: Chhattisgarh High Court

The Chhattisgarh High Court has recently observed that while hearing the application for suspension of sentence and grant of bail under Section 389(1) of the CrPC for offences punishable under the POCSO Act, a notice to the victim/complainant / her parents is necessary.

A Division Bench of Justices Sanjay K. Aggarwal and Arvind Singh insisted that while serving notice,

"the principles relating to the protection of dignity and privacy and modality of ensuring those values, as delineated by their Lordships of the Supreme Court in the matter of Nipun Saxena and another v. Union of India and others, are scrupulously adhered to and followed religiously"

Background

The issue in consideration was whether, while considering an application for suspension of sentence and grant of bail under Section 389(1) of the CrPC, a notice is to be served to the victim/complainant under the Protection of Children from Sexual Offences Act, 2012 [POCSO].

The appellants were convicted for offences under Section 6, read with Section 17 of the POCSO Act in addition to their conviction for offences under the provisions of the Indian Penal Code.

They preferred an appeal under Section 374(2) of the CrPC and filed an application for suspension of their substantive jail sentence under the provisions of the IPC and POCSO Act.

Amicus Ashish Surana assisted the Court in the said matter. He argued that by Amendment Act No.5 of 2009 and under the POCSO Rules, 2007, the right created in favor of the victim has to be given fullest effect to and interest of the victim/ informant/ complainant has to be protected post-trial proceedings also.

He submitted that this right would extend while hearing the application for suspension of sentence as ultimately by suspending the substantive jail sentence awarded, bail has to be granted which would be covered within the meaning of Rule 4(15) of the POCSO Rules, 2020.

He also referred to judicial precedents in Aparna Bhat & Ors v. State of Madhya Pradesh & Anr. where the Supreme Court held that notice of the application for suspension of sentence in any criminal appeal has to be served to the victim/complainant, so that they may have a say on the application for suspension of sentence.

Findings of the Court

The Court carefully perused the brief history relating to the evolution of victim's right. It noted that the deficiencies in recognizing victim's rights was pointed out by the apex court in Rattan Singh v. the State of Punjab. Further, the Law Commission of India, in its 154th report, made several recommendations on compensation to the victim, followed by the Committee on Reforms of Criminal Justice System and the Malimath Committee Report.

The unconditional right to appeal against the order of acquittal is present in the Code of Criminal Procedure Act, 1989 was done away with the insertion of Section 378(3) to the Code. It requires seeking leave to file an appeal against the order of acquittal and giving the victim an unconditional right to appeal under proviso to Section 372 CrPC.

On perusal of Sections 23, 24(5), and 33(7) of the POCSO Act, 2012 along with the relevant clauses in the 2020 Rules, the Court held that,

"..victim/child and his/her parents or guardian or another person in whom the child has trust and confidence, is entitled to the notice of the bail, release or detention status of an offender or suspected offender as a matter of right, and that can be done only if the victim/child or his/her parents or guardian or another person in whom the child has trust and confidence, such an information has to be provided by Special Juvenile Police Unit / local police/support person."

The Court also referred to the Model Guidelines issued by the Ministry of Women and Child Development, Government of India. It provides for the right to be heard in any judicial and administrative proceedings and the right to information about the case they are involved in.

Examining the guidelines would show that the victim has been held entitled to receive the most appropriate information of the proceedings, including the status of the accused, including their bail, temporary release parole or pardon, escape, absconding from justice, etc. It further observed,

"By virtue of sub-rule (15) of Rule 4 of the Rules of 2020 and by virtue of the guidelines issued by the Central Government under Section 39 of the POCSO Act, issuance of prior notice to the victim/ complainant or his/her parents or guardian/informant would be necessary for the ends of justice before hearing the application for suspension of sentence preferred under Section 389(1) of the CrPC in pending criminal appeal by convicted person and if the sentence awarded to the accused is suspended, he has to be released on bail on terms and conditions imposed by that Court, as such, for suspension of sentence and grant of bail under Section 389 of the CrPC proceeding, the victim/ complainant or his/her parents would be entitled for prior notice of hearing that application."

Case Title: Akash Chandrakar & Ors v. State of Chhattisgarh

Citation: 2022 LiveLaw (Chh) 6

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