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Bombay High Court issues guidelines for effective compliance with POCSO Act provisions


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RoadRomeo

The Bombay High Court on Wednesday issued guidelines for effective compliance with the provisions of the Protection of Children from Sexual Offences Act (POCSO Act) so as to ensure victim's participation in various stages of judicial process (Arjun Malge v. State of Maharashtra).

 

A Bench comprising of the Chief Justice Dipankar Datta and Justice GS Kulkarni gave directions imposing additional duties upon the Special Juvenile Police Unit (SJPU) when it comes to intimation to be given to the victim‘s family.

The Court stated that in the event there is an application moved by the prosecution or the defence in a POCSO case, it shall be the duty of the SJPU to inform the relevant court about the service of such application and notice of hearing along with proof of service.

Where it is not possible to serve the victim, the reasons for the same should be set out in writing, the Court directed.

The relevant court must also ascertain the status of service of notice. Where despite issuance of notice the victim’s family does not attend the hearing, the court may proceed further without the presence of such noticee or issue another notice as may be judicially determined appropriate.

The judgment came on a plea inviting the Court’s attention to the non-compliance with the provisions of POCSO Act and Code of Criminal Procedure (CrPC) stipulating the minor victim’s participation in the judicial process.

The provisions referred to in the criminal plea filed by Arjun Malge, a social worker were Section 40 (right of child to take assistance of legal practitioner) of the POCSO Act, Rule 4(2)(f) (inform the child of such right) of the POCSO Rules and Section 439 (1-A) (presence of victim/ guardian/ legal counsel during hearing of bail application moved by accused) of the CrPC.

The Court opined that POCSO Act reads with Rules 4(13) and 4(15) recognised the statutory entitlement to the assistance of and representation by legal counsel for the family or the guardian of the child and entitlement to be present and to participate in proceedings.

"As a necessary corollary, there is also an entitlement of such persons to be made aware of the filing of applications and the hearings scheduled on such applications at the various stages of the proceedings." the Court observed.

The Court directed that a copy of the judgment be circulated to all presiding officers of all Sessions Courts in Maharashtra, the Director General and Superintendent of Maharashtra Police, Director of Prosecution, State of Maharashtra and Maharashtra State Legal Services Authorities.

Malge had claimed through his plea filed by advocates Saziya Mukadam and Priyanka Mali that there had been several instances wherein the trial court and police have failed to comply with these sections.

Malge in fact, had experience of working closely with the victims of sexual abuse during his work with the Child Welfare Committee.

He claimed that during these visits he noted the “lackadaisical attitude of the various stakeholders under the POCSO Act” which would add to the trauma of the victims and their families.

The said provisions of POCSO and CrPC applied to victims of offence of rape under the Indian Penal Code. The plea sought for mutatis mutandis application of those provisions to the POCSO offences too.

Aggrieved by the non-compliance with the said sections, Malge sought an authoritative pronouncement and appropriate directions/ guidelines from the High Court.

Advocate Somasekhar Sundaresan, counsel for Malge submitted that even after the 2018 amendment to CrPC, neither the police nor the trial court were taking appropriate steps to inform the victims/ complainants about the bail applications moved by the accused in cases falling within the purview of POCSO Act.

The amendment was being interpreted as directory instead of mandatory, it was contended.

Sundaresan apprised the Court of similar issues which were raised before the Delhi High Court leading to issuance of practice guidelines to ensure proper implementation of amended Section 439 (1-A) of the CrPC.

He stated that not only were the practice directions upheld by the Court, but they were also directed to be applied to offences under the POCSO Act.

He made the following legal submissions:

  1. That the right under Section 40 of POCSO Act to engage legal counsel for victim is a right to legal representation in Court and not just legal advice and counsel outside proceedings.

  2. The victim has a right to be kept informed about the arrest and every application made during the hearing gave a right to the victim’s counsel to be present and participate in the proceedings inherently provides the right to the child’s lawyer to be present in participate in the proceedings.

  3. Where the right to appoint a lawyer is exercised, the lawyer would have a right to participate in the proceedings under the directions of the public prosecutor.

  4. Where the offence is one covered by provisions of IPC referred to in Section 439 dealing with offence of rape, the court must necessarily hear the person before granting bail.

In response to the plea, the Maharashtra Commission for Protection of Child Rights in its affidavit concurred with the submissions made by the petitioner regarding the legal points.

[Read order here]

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Arjun Malge v. State of Maharashtra.pdf
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