Minor survivor's family/guardian must be notified when POCSO accused files plea for bail: Karnataka High Court

The Karnataka High Court has directed that the investigation officer or the Special Juvenile Police Unit (SJPU) must inform a minor survivor's parents, caregiver, or guardian and lawyer (if appointed), if the accused files for bail or if there is any other application by the accused or the prosecution in cases under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act)..The Division Bench of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj said that a survivor or complainant should be permitted to assist the prosecution if they so desire."Though the prosecution of such offences rests with the State, who is to act impartially, the prosecution system is overburdened, many a time prosecutors not having been appointed, leading to inordinate delay. 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," the Court said. .The Court was hearing a public interest litigation by mothers of minor sexual assault survivors The petitioners in the Public Interest Litigation, represented by Advocate Rohan Kothari, are all mothers who are complainants in POCSO cases where the offence was committed against their children. The petition alleged that in each of their cases, the local police failed to inform them when the accused person filed a bail application. Due to this critical failure, the accused in each case were released on bail without the mothers being informed or heard in the matter. .The plea asked for effective implementation of the POCSO Act and sought a declaration from the Court that Section 40 (right of child to take assistance from a legal practitioner) of the POCSO Act read with Rule 4 (procedure regarding care and protection of child) of the POCSO Rules mandate that the child survivor, parent, guardian, or complainant be informed when an application for bail is moved by an accused person..Pertinently, it specified that in cases where the offender is a close family member, the notice regarding filing of bail application should be issued to the concerned Child Welfare Committee (CWC), and the Karnataka State Legal Services Authority..The Court observed that offences under the POCSO Act are heinous in nature, and are usually committed by depraved persons.The benefit of Article 21 (right to Life) of the Constitution of India is available not only to the accused but also to victims and families of any criminal offence. For an orderly society, victims of criminal offences, especially heinous offences should have a say in the criminal prosecution of the accused, said the Court. .The Court referred to the judgments of the Bombay High Court in Arjun Kishanrao Malge v State of Maharashtra and Others and the Delhi High Court in Reena Jha v. Union of India, which had extensively dealt with the same matter and issued directions, noting that the same orders could be issued by them. .Thus, the following directions were issued by the Court: - The investigating officer or the SJPU shall inform the victim's parents /caregivers/guardian, and legal counsel if any, about any application for bail or if any other application is filed by the accused or the prosecution; - The public prosecutor shall serve a copy of any application or objections to be filed in the proceedings to the victim’s parents/caregiver/guardian and legal counsel, along with relevant documents and records necessary for their effective participation in the proceedings;For this, the prosecutor can take the assistance of the Investigating Officer or the SJPU and file proof of service. If the prosecutor is unable to do so, they must inform the reasons in writing to the relevant court;- In the event that the accused is a close family member or an acquaintance of the family, a copy of any application or objections to be filed in the proceedings shall also be served on the relevant Child Welfare Committee (CWC) along with all relevant documents and records necessary;- The concerned court should ascertain the status of service of notice before hearing any application, and if it is found that notice has not been issued or served, the court may make a reasoned order to secure the ends of justice, by 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;- Despite service of notice, if none were to appear, the court may proceed further or issue a fresh notice, considering the interest of justice;- When the proceedings under the POCSO Act also involve offences under Sections 376(3), (rape on a woman under 16 years of age) 376-AB, (rape on a woman under 12 years of age) 376-DA gang rape on a woman under 16 years of age) or 376-DB (gang rape on a woman under 12 years of age) of the Indian Penal Code, the notice to the victim shall be issued under Section 439(1-A) (Special powers of High Court or Court of Session regarding bail) read with Rule 4(13) and 4(15) of the POCSO rules (duty to inform the child/child's family);- When 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 any application for any type of bail, notice shall be issued by the accused to the investigating officer, SJPU, public prosecutor and also any counsel on record for the victim/ complainant/informant;- 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, or Taluka Legal Services Authority;- The State government should provide for sufficient funds in order to make payments to the counsel; - The victim’s parents/caregiver/guardian and legal counsel should be informed about the protection available under Witness Protection Scheme, 2018 and it must be enquired if they require any such protection. If a request made for police protection, it should be considered and granted according to the Witness Protection Scheme 2018. If information is provided by a whistleblower, necessary protection should be provided according to the Whistle Blowers Protection Act, 2014..The Court further directed the Registrar General to forward a copy of the order to all Sessions Judges and Special Court Judges (POCSO Court) in the State of Karnataka and the Director of the Karnataka Judicial Academy, to incorporate the directions in concerned training programs. .The order should also be sent to the Director-General of Police, State of Karnataka, who must forward it all Station House officers, Special Juvenile Police Units and all concerned with POCSO offences in the Police Department, the Court ordered.Further, the Director General of the Police was asked to conduct programs to sensitize the police personnel and train them to comply with the direction, and to set up a suitable system for monitoring and reporting on compliance with the directions by the concerned police personnel..The order is also to be sent to the Director of Prosecution, State of Karnataka, who should forward it to all prosecutors in the State with a direction to comply with the order, and to the Member Secretary of the Karnataka State Legal Services Authority who should forward it to all District Legal Services Authority Officers and Taluka Legal Services Authority Officers in Karnataka with directions to make available legal aid whenever requested, free of cost. .Advocate Rohan Kothari appeared for the petitioners, advocate Kumar MN for the Union of India, Additional Government Advocate Vani H for the State of Karnataka and advocate Shridhar Prabhu for the Karnataka State Legal Services Authority. .[Read Order]