Victim’s parent/ guardian must be given notice of bail proceedings in every POCSO case: Allahabad High Court

In an important ruling, the Allahabad High Court recently observed that in every case under the Protection of Children from Sexual Offences (POCSO) Act, notice of bail applications moved by the accused must be given to the parent/ guardian of the child victim. (Rohit v. State of U.P. Through Secretary Home Lucknow).On a combined reading of Rules 4(13) and 4(15) of the POCSO Rules and Section 40 of the POCSO Act, Justice Vivek Chaudhary held,.“…. it is clear that this Court 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.".The Court noted that Sections 376(3), 376-AB, 376-DA and 376-DB of the Indian Penal Code (IPC) refer to sexual offences against a child below the age of 16 years and 12 years. .The Court added that the presence of the informant or any person authorised by the informant is mandatory in bail hearings when it comes to sexual offence cases, as per Section 439 (1-A) of the Code of Criminal Procedure (CrPC)..Further, the Court noted that Rule 4 (13) of the POCSO Rules, 2020 lays down that it is the duty of the local police or the Special Juvenile Police Unit (SJPU) “to keep the child and his/her parent/guardian or other person in whom the child has trust and confidence, informed about the developments including the arrest of the accused, applications filed and other Court proceedings.”.This would include bail hearings of the accused, the Court explained. Thus, the police or the SJPU has a duty to inform the the victim child and the child’s parent or guardian about bail hearings in POCSO cases, the Court said..Rule 4 (15) of the 2020 Rules also makes it incumbent upon the SJPU and local police “to inform the child and parent or guardian with regard to the schedule of the Court proceedings that the child is either required to attend or is entitled to attend and bail, release and detention status of the offender or suspected offender”, the Court added..There is yet another reason to serve notice of the bail application in every POCSO offence case upon the parent/ guardian of the child, the Court further observed. This was to ensure that the victim continues to feel safe and secure, the Judge said..“A perusal of provisions of POCSO Act and Rules of 2020 casts a duty upon every person involved with the matter including the courts to provide circumstance and atmosphere wherein the victim child and his family feels safe and secure. Providing complete knowledge of judicial proceeding and opportunity to participate in the same would be a step in 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”, it was explained in the order..The order was passed while dealing with a bail application in a POCSO case..Identity of the victim should not be disclosed while issuing notice: Court.Pertinently, Judge emphasised that notice of bail hearings in POCSO cases should be served through the Investigating Officer/ Station House Officer of the Police Station concerned to ensure that the identity of the victim remains protected..In this regard, the order also contains a format in which notice is to be issued..The Court noted that a duty is cast upon Special Courts for POCSO offences under Section 33(7) of the POCSO Act to ensure that the identity of the child is not disclosed..Issue notice regarding availability of free legal assistance in POCSO cases to victims in need: Court.The Court also noted that there were a large number of cases where the victim’s family was unable to engage a counsel to represent the victim in bail hearings..As such, the Court directed the circulation of a notice so that if a person is in want of the same, s/he would get free assistance including in getting a lawyer to represent her or him from the legal services authority. The said notice should also include the Hindi language, the Court said..Persons requiring such assistance can contact the Registrar(Judicial) (Listing)/ Secretary, High Court Legal Services Sub-Committee,Dr. Satyabhan Singh, the Court added in its order. Contact details have also been provided in the same order..[Read Order]