Silence of legislature has to be interpreted by courts: Allahabad High Court lays down timeline for maturation of bail pleas in POCSO cases

The Allahabad High Court has issued a series of directions for the time-bound listing of bail applications in cases concerning the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act), while observing that delays in such matters degrade the liberty of citizens (Junaid v. State of UP)..Justice Ajay Bhanot emphasised that the time for the maturation of a bail application that is to be placed in Court has to be definite. .In the absence of any definite timeline for the same in the POCSO Act, and given the various statutory process that should preceding the maturation of a bail application, the Court went on to issue directions. ."The time frame to perform these statutory duties has not been stated in the statute. Consequently, the time period for maturation of a bail application remains undefined ... The search of the legislature is for certainty. The quest of the courts is for consistency. The silences of the legislature have to be interpreted by the courts. Where time period for performance of statutory duties is not provided, authorities are obligated to perform the duties in a reasonable time frame", the order stated..In doing so, Justice Bhanot emphasized that he is seeking to balance the statutory rights of the victim with the constitutional liberties of the accused..The Court further reasoned that POCSO Act is a special legislation and it is open to the High Court on the administrative side to consider the feasibility of creating specific rules for bail maturation or the time period for serving advance notice upon the Government Advocate and other connected issues. .Pertinently, the Court has also directed the Registry to ensure that the victim/child and its parents are not joined as parties to bail applications by name. Other personal details of the child should also not be stated in the bail application, the Court said. .The Court also noted that no notice to the victim is contemplated when it comes to bail applications under the POCSO Act and Rules. Justice Bhanot proceeded to add,."Without knowledge of and access to entitled information and services, the court notice is of no avail to the child. Rights of the child would be undermined if court notice is deemed sufficient in such facts and circumstances.".The timeline for maturation of a bail application in POCSO cases.The Court proceeded to lay down the following timeline in its order:.- Information of crime to be given by local police/SJPU to Child Welfare Committee (CWC) (under Section 19(6) of the POCSO Act, 2012) within 24 hours after report of crime.- Time period for CWC to create assessment report and identify person (parents/guardian/person) who the child trusts or to nominate a support person (if required) best suited to protect the best interests of child and receive bail notice on its behalf: Within 3 days from date of lodgement of the FIR.- Time period for service of notice of bail application by the local police/SJPU upon CWC: Within 3 days from the date of service of notice of bail application upon the office of the Government Advocate at the High Court.- Time period for service of notice of bail application by the local police/SJPU upon the child and to apprise child about information and services the child is entitled to under the POCSO law: Within 4 days from date of service of notice of bail application upon office of Government Advocate at High Court.- Time period for CWC and District Legal Services Authority for providing legal aid before the hearing of the bail application in the District Court: Within 5 days from date of receipt of notice of bail application by CWC- Time period for CWC and High Court Legal Services Committee, DLSA for providing legal aid before hearing of the bail application in the High Court and District Court respectively: Within 5 days from date of receipt of notice of bail application by CWC- Time period for child/child’s parents/guardian/any other person in whom the child trusts or support person to engage counsel of choice for the hearing of the bail application before the High Court and the District Court: Within 5 days from date of service of notice of bail application by local police/SJPU upon the child.- Time period for police authorities to provide instructions to the Government Advocate, along with report of service of bail application upon victim and CWC, report apprising the child is entitled to information and services under the POCSO law and other reports: Within 8 days after date of service of notice of bail application upon the office of the Government Advocate at the High Court. Under all circumstances the same should be provided to the Government Advocate before the bail application is placed before the Court.- Time period for CWC to submit report before the High Court regarding the status of information and services including legal aid provided to the child: Report to be produced when bail application is first placed before the Court.- Time period for HCLSC and DLSA to inform the High Court and trial court respectively about the grant of legal aid to the victim and requisition in this regard by CWC: When the bail application is placed before the court.- Time for the Registry to place the bail application before the Court: On the tenth day after service of notice of bail application upon the office of the Government Advocate at the High Court..The Court also cautioned that "The timeline of duties stated above has to be strictly adhered to by the respective authorities ... The same procedure with necessary adaptions shall be implemented by the trial courts in all district judgeships in the State of U.P.".Failure to comply with the Court's directions would thwart the endeavour to sensitize the legal process and impede the implementation of the legislative mandate, the Judge observed. ."The misconduct will have to be duly investigated and the delinquent officials have to be proceeded against departmentally in accordance with law", he added..Moreover, the Court has also opined that the advance notice period of two days (under the Rules of Court, 1952) to the Government Advocate prior to placement of the bail application in POCSO cases is insufficient, given the various statutory proceesses preceding the maturation of such a bail plea. The Court opined that this advance notice period should be increased. .Directions issued to ensure compliance of Court's instructions.Having issued the guidelines for placing bail matters before the Court in POCSO cases, the Court proceeded to issue the following directions so that the guidelines are enforced..1. Creation of standard operating procedure: The Court directed that the Director General of Police, UP Police to create a framework and standard operating procedures for the State of Uttar Pradesh to ensure compliance of the directions and strict adherence to the timeline of duties. 2. Supervision of notice: It was directed that the Senior Superintendent of Police/ Deputy Commissioner of Police/Superintendent of Police of the concerned district shall be the nodal officer, who will supervise the staff charged with the duty of actually serving the bail notice upon the victim and the CWC, imparting information about entitlements under the POCSO Act, 2012 read with POCSO Rules, 2020 to the victim, and submitting the assessment,3. State Level Committee: It was directed that the DGP, shall create a State Level Committee headed by Officer not below than the rank of ADGP Police and committee shall prepare biannual reports which reviews the working and implementation of the above said directions throughout the State of Uttar Pradesh and to examine the action taken against the officials who violate the directions.4. Production of reports: It was directed that the District Magistrate of the concerned district has to ensure that the reports as directed in the order are produced by the CWC before the Court when the bail application is placed in Court and that action is taken against those who default.5. Biannual reports: It has been directed that biannual reports shall be prepared by the Principal Secretary/competent authority in the Ministry of Child Welfare, Government of UP regarding compliance of the Court's directions by the CWCs in Uttar Pradesh. 6. No child should be joined as parties: The Registry has been directed to ensure that the child or its parents are not joined as parties to the bail application by name. It should also be ensured that any other information like address or neighborhood which will reveal the identity of the child shall not be stated in the bail application. The aforesaid details shall be anonymized,.The Court issued the directions while hearing a bail application, where the accused was charged under provisions of the Indian Penal Code, POCSO Act and the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. After examining the matter, the Court allowed the bail plea..[Read order]