Karnataka High Court Issues Directions To Ensure Victim Is Given Notice Of All Bail Proceedings Concerning POCSO Cases

A division bench of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj disposing of a public interest litigation filed by a mother of a survivor, said, "None can have any doubt that offences under the POCSO Act are heinous in nature and are more often than not committed by depraved persons."

It added,

"The benefit of Article 21 of the constitution is not only available to the accused but also to the victims and their families of any criminal offence. For an orderly society to exist it is but required that the victims of criminal offences, more particularly heinous offences, have a say in the criminal prosecution of the accused."

Further the court opined that, "If a victim or complainant wants to and can effectively assist the prosecution, the same is required to be permitted, albeit with the caveat that the prosecutor would always be in charge of the prosecution and would be the deciding authority as regards the mode and manner of conducting of the prosecution. For this to happen it is essential that the complainant/Victim is aware of the proceedings in court."

Following directions were issued by the court:

1: The Investigation officer or the SJPU (Special Juvenile Police Unit) shall inform the Victim's parents/caregiver/guardian as also the legal Counsel if appointed, about any application for bail or any other application having been filed by the accused or the prosecution in the said proceedings.

2: The public prosecutor shall serve a copy of any application or objections to be filed in the said proceedings on the Victim's parents/caregiver/guardian as also the legal counsel if appointed and issue notice of hearing of such application on them, along with all relevant documents and records necessary for their effective participation in the proceedings, in this regard the prosecutor is entitled to take the assistance of the Investigating Officer or the SJPU and file necessary proof of service of copies and notice of hearing. In the unlikely event of service not being effected it shall be the duty of the Prosecutor to inform the reasons in writing to the relevant court.

3: The Accused or the counsel for the accused shall serve a copy of any application or objections to be filed in the said proceedings on the Victim's parents/caregiver/guardian as also the legal counsel if appointed and issue notice of hearing of such application on them, along with all relevant documents and records necessary for their effective participation in the proceedings. The accused or the Counsel for the Accused to file necessary proof of service of copies and notice of hearing. In the unlikely event of service not being effected it shall be the duty of the Accused or Counsel for the Accused to inform the reasons in writing to the relevant court.

4: In the event of the accused being a close family member or an acquaintance of the family, in addition to the above a copy of any application or objections to be filed in the said proceedings shall be served on the jurisdictional Child Welfare Committee (CWC) and issue notice of hearing of such application on CEC, along with all relevant documents and records necessary for their effective participation in the proceedings;

5: The concerned Court, before proceeding to hear the application, shall ascertain the status of service of notice, and if it is found that notice has not been issued or though issued has not been served, the Court may make such reasoned order as it deems fit to secure the ends of justice, taking into account any emergent circumstances that warrant dealing with the application in the absence of the Victim's parents/caregiver/ guardian or legal counsel.

6: Despite service of the above notice, if none were to appear, the Court may proceed further or issue a fresh notice, as the Court may deem fit and proper, considering the interest of justice.

7: When the proceedings under the POCSO Act also involve offences under Sections 376(3), 376-AB, 376-DA or 376-DB of the Indian Penal Code, the notice to the victim shall be issued under Section 439(1-A) read with Rule 4(13) and 4(15).

8: Whenever an accused who is charged under Sections 376(3), 376-AB, 376-DA or 376 DB of the IPC or the provisions of the POCSO Act, moves an application for bail be it regular, interim, transit or any other classification, notice shall be issued by the Accused to the Investigating officer, SJPU, Public Prosecutor as also any counsel on record for the victim/ complainant/informant.

9: The victim/complainant/informant who appears before the Court may be represented by own counsel or by a counsel appointed by the Karnataka State Legal Service Authority or the concerned District Legal Services Authority/Taluka Legal Services Authority.

10: The state Government to provide for sufficient funds in order to make payments to the counsel so appointed.

11: On service of notice on the Victim's parents/caregiver/guardian as also the legal counsel, they are to be informed about the protection available under Witness Protection Scheme, 2018 and enquire if they require any such protection, if there is a request made for police protection, the same shall be considered and granted in terms of the Witness Protection Scheme 2018. In the event of information being provided by a whistleblower necessary protection to be provided in terms of The Whistle Blowers Protection Act, 2014.

The court has directed the Registrar General, to forward the copy of its order to all Sessions Judges and Special Court Judges (POCSO Court) in the State of Karnataka for due compliance. The Director Karnataka Judicial Academy, is told to incorporate the above directions in the concerned training programs.

The court also directed the Director-General of Police, State of Karnataka, to forward the copy of the order to all Station House officers, Special Juvenile Police Units and all concerned with offences under the POCSO Act in the Police Department. The court has directed the Director General of Police to get conducted necessary programs to sensitise the police personnel and train them to comply with the above directions. Further, to set up a suitable system for monitoring and reporting on the compliance of the above by the concerned police personnel.

Case Title: Bibi Ayesha Khanum v. Union Of India

Case No: Writ Petition No.2318 OF 2022

Citation: 2022 Livelaw (Kar) 59

Date Of Order: February 23, 2022

Appearance: Advocate Rohan Kothari For Petitioners; Advocate Kumar.M.N, For R1; Advocate VanI.H, For R2 & 3; Advocate Shridhar Prabhu, For R4