Victim Or Guardian In POCSO Case Not Obligated To Appear Before Court In Appeals And Application For Sentence Suspension: Bombay High Court

The Bombay High Court recently clarified that the child victim of offenses under the Protection of Children from Sexual Offences (POCSO) Act or their guardians are not obligated to appear before the court in appeals or applications for suspension of sentence by the convict.

Justice Anil Pansare of the Nagpur Bench observed that confusion has arisen among advocates, investigating agencies, and court officials regarding the necessity of the presence of a child victim, through parents or guardians, in appeals under Section 374 or applications for suspension of sentence under Section 389 of the CrPC.

“The confusion has resulted into further sufferance of hardship of agony to the child/victim and the child’s parents or guardian…They are required to travel from remote places to attend the Court and thus are put to financial loss as well. Most of them belong to economically weaker section because in almost all cases, they seek legal aid. None of them, in my tenure so far, have shown interest to participate in the proceedings. Thus, by converting their ‘entitlement to participate’ into ‘obligation to participate’ they have been put to further sufferance and hardship”, the court observed.

The court emphasized that the child's or the guardian’s presence is not obligatory except in bail applications, as per directions given by the court in Arjun Kishanrao Malge v. State of Maharashtra.

The court admitted an appeal against conviction and directed the appellant to delete the victim's name from both the appeal and the application for suspension for sentence.

The appellant, in this case, had included the victim as party respondent in the appeal and the application seeking the suspension of the sentence, following a practice common in cases involving offenses under the POCSO Act. The appellant cited the decision of the Division Bench in Arjun Kishanrao Malge v. State of Maharashtra, claiming that it mandated the inclusion of the victim as a party respondent.

The court clarified the directions given in Arjun Malge's case. The court stated that the judgment mandated issuance of notice to the child’s family or guardian etc. to apprise them of the stage/status of the proceedings so that they can appear before the court for hearing, if so desired. “These directions cannot be construed to mean that the presence of the child through child’s parents or guardian etc. is obligatory”, the court stated.

The court noted that Section 40 of the POCSO Act entitles the family or guardian of the child to the assistance of legal counsel. The court emphasized that this entitlement does not mandate making the family or guardian a party respondent in the appeal or application for suspension of sentence.

Rule 4 of the POCSO Rules outlines procedures for the care and protection of the child. The court underscored that the obligation of the Special Juvenile Police Unit (SJPU) or local police is to inform the child's family or guardian about the case's developments, not to mandate their presence in the proceedings, although they may appear before the court if they so desire.

The court explained that in bail applications, the child may assist the court by providing information about personal sufferings that may arise if the accused is released, such as threats received by the child or family. However, in applications for suspension of sentence, where the judgment and entire evidence are already before the appellate court, the child victim has no active role to play, and the presence of the prosecutor is sufficient to decide the application.

The court directed that in bail applications, the child through their parents or guardians should be added as a party respondent emphasizing that only the presence of the child's parents is obligatory, not the child's presence. The court instructed SJPU or local police to ensure that the child is not instructed to attend the court in such matters.

For applications for suspension of sentence, the court clarified that notices should be issued to the child's parents or guardians as per the directions issued in Arjun Malge's case, for the purpose of apprising them of the case's status without insisting on their presence in court.

The court directed the Registry to process applications accordingly and issued instructions to the Director General of Police to sensitize officials on handling cases involving child victims, ensuring the child is not produced before the High Court unless expressly directed.

Advocate NS Giripunje represented the Applicant. APP Amit Chutke represented the State.

Case no. – Criminal Appeal (ST) No. 8953/2023

Case Title – Rohit s/o Chandrakant Bhagat v. State of Maharashtra

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