Sandeep Joshi vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 7426 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

[AFR]
 
Court No. - 27
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3574 of 2023
 

 
Applicant :- Sandeep Joshi
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others
 
Counsel for Applicant :- Pradeep Kumar Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Brij Raj Singh,J.

1. Heard learned counsel for the applicant, Sri Rajesh Kumar Singh learned AGA for the State.

2. Present application for bail is filed by the applicant to enlarge him on bail in case crime No.434 of 2023 under Section 376, 323, 506 IPC and 3/4 of Protection of Children from Sexual Offence Act, PS Hargaon, district Sitapur.

3. Two questions before this Court emerged in the case bearing Bail No.8227 of 2021 (Rohit. Vs. State of U.P. through Secy. Home Lko.):

"(i) whether the complainant or any person on behalf of the child victim is to be made a party to the proceedings; and

(ii) if any such person is to be made opposite party in the bail application, what should be the mode of service upon such a person, as the Court is required to ensure that the identity of the child victim is not disclosed at any time during the course of investigation or trial."

4 The Court while discussing the aforesaid two issue, has passed the detailed order and the Court has opined in paragraph-10 of the said case that entitlement of legal assistance through a counsel of their choice is mandatory and also second question has been answered by the Coordinate Bench. While issuing directions, the Court has passed the order that legal assistance is required and the concerned SHO/Special Juvenile Police Unit (SJPU) will inform the victim or the complainant of the case. The relevant paragraphs of the said judgment in the case of Rohit (supra) are quoted below:-

"10. A perusal of Section 40 of the POCSO Act, if made cursorily, would only indicate that it provides entitlement of legal assistance through a counsel of their choice or through Legal Services Authority, to the family or guardian of the child. However, such legal assistance would be meaningless if the family or guardian of the child is not aware of the said legal proceedings. A proper and effective legal assistance can be given to a person only when such a person is made aware of the pending proceedings. If the person is not made aware of the proceedings, no legal assistance can be given to him.

11. The Protection of Children from Sexual Offences Rules, 2020 (for short ''the Rules of 2020') are framed to give effect to the purpose of the POCSO Act. Rules 4(13) and 4(15) relevant for the purpose of this case, which read:

"4. Procedure regarding care and protection of child-

(13) It shall be the responsibility of the SIPU, or the local police to keep the child and child's parent or guardian or other person in whom the child has trust and confidence, and where a support person has been assigned, such person, informed about the developments, including the arrest of the accused, applications filed and Court proceedings.

(14) ...........

(15) The information to be provided by the SJPU, local police, or support person, to the child and child's parents or guardian or other person in whom the child has trust and confidence, includes but is not limited to the following: -

(i) the availability of public and private emergency and crisis services; (ii) the procedural steps involved in a criminal prosecution;

(iii) the availability of victim's compensation benefits;

(iv) the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation;

(v) the arrest of a suspected offender;

(vi) the filing of charges against a suspected offender;

(vii) the schedule of Court proceedings that the child is either required to attend or is entitled to attend;

(viii) the bail, release or detention status of an offender or suspected offender;

(ix) the rendering of a verdict after trial; and

(x) the sentence imposed on an offender.

X X X

13. Therefore, from the reading of Section 40 of POCSO Act as well as Rule 4(13) and 4(15) of the Rules of 2020, 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.

14. There is yet another reason to serve notice of the bail application in every POCSO offence case upon the parent/guardian of the child. 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.

X X X

18. Notice in every case shall be served through Investigating Officer/S.H.O. of the Police Station concerned upon such complainant and/or parent/guardian of the child. The Investigating Officer/S.H.O. of the Police Station concerned shall ensure that identity of the child does not get disclosed in any manner whatsoever during investigation, trial or during service of notice.

X X X

22. Every notice issued to the complainant or to the family/guardian of the child shall also include the aforesaid details in Hindi language to enable him, in case he so desires, to take assistance from the Legal Services Authority."

5. Sri Rajesh Kumar Singh learned AGA-I has made submissions that Section 40 of the POCSO Act, 2012 is statutory mandate which envisages that the victim has right to represent her cause before the Court. Section 40 of the POCSO Act is quoted below:-

"40. Right of child to take assistance of experts, etc.- Subject to the proviso to section 301 of the Code of Criminal Procedure, 1973 (2 of 1974), the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act:

Provided that if the family or the guardian of the child are unable to afford a legal counsel, the Legal Services Authority shall provide a lawyer to them."

6. On specific query I have been informed by the Sri Rajesh Kumar Singh, learned AGA-I that as soon as notice is received by the Office of the GA, the information is sent to the concerned police station and the concerned police station informs the victim or the complainant as the case may be. However, he has submitted that while giving information, the police informs the complainant/victim that the case is filed in High Court, and this is only information given to the victim or the family member. It is the practice that after ten days of notice, the applications are filed but the victim or the family member does not know the date fixed by the Court only the notice number registered in the G.A. Office is informed without further details of the number of the application registered in the Office of High Court.

7. Section 40 of the Protection of Children from Sexual Offence Act mandates that right of a child to take assistance of a legal practitioner is necessary and I am of the opinion that specific date fixed in the registered application filed in High Court should be informed to the complainant or the victim as the case may be. In my opinion applying the principles of audi alteram partem coupled with Section 40 of the POCSO Act I am of the view that notice is liable to be issued to the complainant/victim.

8. Therefore, I issue notice to O.P. No.2 returnable on or before the date fixed.

9. List this case on 10.4.2023 within top 20 cases.

10. Before parting with the case, I appreciate the legal assistance provided by Sri Rajesh Kumar Singh, learned AGA-I.

Order Date :- 15.3.2023

Rajneesh JR-PS)