POCSO Offences- "Victim's Parent/Guardian Should Be Notified Of Bail Plea & Their Right To Legal Assistance": Allahabad High Court

In an important ruling, the Allahabad High Court has directed that the notice of the filing of the bail application in every POCSO case shall be given to the Parent/Guardian of the child victim or complainant, to be served through Investigating Officer/S.H.O. of the Police Station concerned.

The Bench of Justice Vivek Chaudhary also made it mandatory for the Investigating Officer/S.H.O. of the Police Station concerned to also include, in the notice, the details regarding the right to legal assistance in Hindi language so as to enable them to take assistance from the Legal Services Authority.

The matter before the Court

The Court was hearing a bail application in a case registered under Sections 363, 366 and 376 I.P.C. and Sections 3 /4 of POCSO Act, wherein the applicant had initially impleaded the complainant by name as opposite party no.2, however, the Registry, raised an objection that the complainant is made a party and, thus, the ounsel for the applicant deleted the name of the complainant.

Therefore, two questions arose before the Court for consideration;

• Whether the complainant or any person on behalf of the child victim is to be made a party to the proceedings; and
• If any such person is to be made an opposite party in the bail application, what should be the mode of service upon such a person, as the Court is required to ensure that the identity of the child victim is not disclosed at any time during the course of investigation or trial.

Court's observations

With regard to the First Question, the Court noted that offences under Sections 376(3), 376-AB, 376-DA and 376-DB of I.P.C. refer to sexual offences against a child below the age of 16 years and 12 years and as per sub-section (1-A) of Section 439 of Cr.P.C., the presence of the informant or any person authorized by him is mandatory at the time of hearing of the bail application with regard to sexual offences.

Thus, in all such cases, the Court emphasised that it is incumbent upon the Court to ensure service of notice of bail application upon the informant.

However, the Court deliberated as to whether under the POCSO Act, with regard to sexual offences against the child up to the age of 18 years (16-18), any person on behalf of the child victim is required to be given an opportunity to oppose the bail application.

To this, the Court referred to Section 40 of the POCSO Act [which provides for the right to legal assistance to Victim Parents/Guardian or complainant through a counsel of their choice or through Legal Services Authority] as well as Rule 4(13) and 4(15) of the Rules of 2020, to state thus:

"It is required to ensure that the SJUP or the local police informs the family or guardian of the child and also provide them legal assistance as required with regard to all proceedings, including the bail applications filed by the accused. Thus, it is necessary to implead the complainant, and in case the complainant is not a family member or guardian of the child, then the family member or guardian of the child as opposite party along with the complainant in the bail applications filed before this Court"

"Providing complete knowledge of judicial proceedings and opportunity to participate in the same would be a step in the right direction in making the victim child and his family to maintain its faith in the justice delivery system of the society and thus feel safe and secure," the Court further observed.

Regarding the Second Question, the Court observed that in order to ensure that the identity of the child is not disclosed, a duty is cast upon the Special Court under Section 33(7) of the POCSO Act and thus, the Court directed:

"Notice in every case shall be served through Investigating Officer/ S.H.O. of the Police Station concerned upon such complainant and/or parent/guardian of the child."

Importantly, the Court also added that in case the guardian or family member or any other person of the child is made an opposite party by name and notices are served upon them in the normal course, it needs to be ensured that the identity of the child does not get disclosed in any manner whatsoever during investigation, trial or during service of notice.

Lastly, the Court observed that since in large number of cases, family members are unable to engage a counsel and represent in the bail applications, the notice shall also include in hindi language, that, in case the person so desires, he will get free assistance including a lawyer to represent him from the Legal Services Authority at High Court, Lucknow Bench, Lucknow and for the same he can contact:

"Dr. Satyabhan Singh,

H.J.S., Registrar(J)(Listing)/Secretary,

High Court Legal Services Sub-Committee,

Chamber No.9, High Court, Lucknow Bench, Lucknow.

Mobile No.9935299286,

Email:- 'hclssclko@allahabadhighcourt.in'"

Case title - Rohit v. State Of U.P. Thru. Secy. Home Lko.

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