Bibi Ayesha Khanum vs Union Of India
2022 Latest Caselaw 3101 Kant

                          -1-           WP No.2318/2022




IN THE HIGH COURT OF KARNATAKA AT BENGALURU               ®
     DATED THIS THE 23RD DAY OF FEBRUARY, 2022

                       PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                          AND

     THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

     WRIT PETITION NO.2318 OF 2022 (GM-POLICE)

BETWEEN:

1. BIBI AYESHA KHANUM
   AGE 28 YEARS
   W/O BABA ABDUL NABI KHAN
   PRESENTLY AT D6, DONA CYNTHIA
   35 PRIMROSE ROAD,
   BANGALORE-560025

2. DIVYA CHRISTINE
   AGED 56 YEARS
   W/O JOE LAZAR
   PRESENTLY AT D6, DONA CYNTHIA
   35 PRIMROSE ROAD, BANGALORE-560025

3. PENCHILAMMA
   AGED 38 YEARS
   W/O PENCHILA NARASIMHALU
   PRESENTLY AT D6, DONA CYNTHIA
   35 PRIMROSE ROAD
   BANGALORE-560025
                                        ...PETITIONERS
(BY SRI. ROHAN KOTHARI, ADVOCATE)

AND:

1.   UNION OF INDIA
     THROUGH ITS SECRETARY
     MINISTRY OF LAW AND JUSTICE
     4TH FLOOR, A-WING SHASTRI BHAWAN
     NEW DELHI-110001
                              -2-              WP No.2318/2022




2.   STATE OF KARNATAKA
     THROUGH ITS SECRETARY
     HOME DEPARTMENT
     VIDHANA SOUDHA
     DR. AMBEDKAR VEEDHI
     BANGALORE-560001

3.   KARNATAKA STATE POLICE
     THROUGH THE DIRECTOR-GENERAL
     AND INSPECTOR GENERAL OF POLICE
     NRUPATUNGA ROAD, BANGALORE-560001

4.   KARNATAKA STATE LEGAL SERVICES AUTHORITY
     1ST FLOOR, NYAYA DEGULA BUILDING
     H. SIDDAIAH ROAD, BENGALURU-560027
                                              ... RESPONDENTS
(BY SRI. KUMAR.M.N, CGC FOR R1;
    SMT. VANI.H, AGA FOR R2 & 3;
    SRI. SHRIDHAR PRABHU, ADVOCATE FOR R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
DIRECTIONS TO RESPONDENTS TO ENSURE EFFECTIVE
IMPLEMENTATION OF THE POCSO ACT, 2012 AND THE POCSO
RULES, 2020 AND ETC.

    THIS PETITION COMING ON FOR ORDERS THIS DAY,
SURAJ GOVINDARAJ J MADE THE FOLLOWING:

                         ORDER

1. Sri.M.N.Kumar, learned CGSC accepts notice for

respondent No.1. Smt.H.Vani, learned Additional

Government Advocate accepts notice for

respondents No.2 and 3.

Sri.Shridhar Prabhu, learned counsel accepts

notice for respondent No.4.

-3- WP No.2318/2022

2. The petitioners are before this Court seeking for

the following reliefs:

a. Issue directions to Respondents to ensure effective implementation of the POCSO Act, 2012 and the POCSO Rules, 2020.

b. Declare that Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules mandates that the child victim/parent/guardian/complainant as the case may be shall be informed through the issuance of a notice regarding any application for bail preferred by an accused person.

c. Declare that Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules mandates that the legal representative of the child victim/parent or guardians/complainant as the case may be, is heard before granting of bail to the accused;

d. Issue directions to the effect that all the relevant documents required for the victim/complainant/informant to effectively represent themselves during hearing of bail applications filed by the accused shall be provided to them by the concerned police or SJPU;

e. Issue directions to all criminal courts to exercise their jurisdiction with a view to secure efficient and effective participation of child victims/their caregivers through their legal representatives at all stages of the judicial process;

f. Issue directions to Respondents No.1 to 3 to ensure that the interests of child victims of sexual abuse/their families are protected with particular reference to Section 40 of the POCSO Act and Rule 4 of the POCSO Rules;

g. Issue directions to the effect that in cases where child sexual offences have been perpetrated by a close family member, a notice regarding filing of bail application by an accused also be issued by the concerned police or SJPU the concerned Child Welfare Committee and a copy of such notice/information be also sent to Respondent No.4;

-4- WP No.2318/2022

h. Direct Respondents No.3 and 4 to develop a mechanism to monitor compliance of Section 40 of the POCSO Act, Rule 4 of the POCSO Rules;

i. Pass any other orders/directions that this Hon'ble Court deems fit in the circumstances of the present case.

3. In this Public Interest Litigation, the petitioners

are seeking for effective implementation of the

Protection of Children From Sexual Offences Act

2012 ('POCSO Act' for short) and the Protection

of Children from Sexual Offences Rules, 2020

('POCSO Rules' for short) as also the amended

provisions of Section 438 and 439 of the Code of

Criminal Procedure, 1973.

4. The grievance of the petitioners is that in

prosecution for offences under the POCSO Act

when the accused were to move the Court for

grant of bail, the defacto complainant and/or

caregiver of the minor victim are not informed of

the application filed for bail, thereby an

opportunity to the complainant/victim or

informants/caregiver to place their contentions

and/or oppose an application for bail is denied.

-5- WP No.2318/2022

5. The petitioners are stated to be mothers of

children who have been subjected to sexual

offences punishable under the POCSO Act, the

petitioners being the complainants or informants

in the complaints registered under the provisions

of POCSO Act, the petitioners being the

complainants or informants in the complaints

registered under the provisions of the POCSO Act

have gone through an harrowing time inasmuch

as in the proceedings which had been initiated

against the accused, the petitioners were not

provided with an opportunity to object to the

same and as such the accused having been

granted bail without consideration of any

objections that they had. It is with an intention

that similar situations are not faced by the

mothers who are the complainants or informants

and/or other complainants and informants in

POCSO matters that the present petition has

been filed.

-6- WP No.2318/2022

6. It is the contention of the petitioners that any

orders that may be passed in the present petition

may not enure to the benefit of the petitioners

inasmuch as in respect of the complaints filed by

the petitioners, where bail had already been

granted any directions passed in favour of the

petitioners would have no effect on the said

orders already passed.

7. Sri. Rohan Kothari, learned counsel for the

petitioners would submit that:

7.1. POCSO Act is a special enactment for

protection of children from offences of

sexual assault, sexual harassment, etc.

which constitutes a heinous offence and in

such circumstances, it is required that when

a bail application of an accused is being

considered, the complainants/victims and or

caregivers of the victims be made aware of

such an application being filed so as to

-7- WP No.2318/2022

enable them to appear in the said

proceedings and oppose application for bail;

7.2. Criminal Law Amendment Act, 2018 has

amended Section 439 by including Section

439(1)(A) which has come into effect from

20.04.2019 and in terms thereof, a Court

while considering an application for bail, is

required to issue notice not only to the

State, the dejure complainant but also to

the defacto complainants so as to provide

them with an opportunity to place their

objections.

7.3. By relying upon Section 40 of the POCSO

Act he submits that it is a provision made to

enable the victim child to avail legal

assistance and if they are not able to afford

a legal counsel, the Legal Services Authority

is obligated to provide such legal assistance.

Legal representation and assistance is

required even at the stage of consideration

-8- WP No.2318/2022

of bail application, it is not restricted to the

stage of trial or arguments in a proceedings.

7.4. By way of Criminal Law Amendment Act,

2018, Section 376(3), 376(ab), (da), (db)

of the Indian Penal Code have been

amended by which offences as regards

women under 16 years and/or 12 years are

made punishable. It is on that basis that he

submits that the provisions of Section

439(1-A) which are applicable to offences

under Section 376 are also to be made

applicable to offences under the POCSO Act.

7.5. On the basis of the above he submits that

necessary directions are required to be

issued by this Court for effective

implementation of the POCSO Act and Rules

to the courts handling matters relating to

offences under the POCSO Act, Police

Stations more particularly the Special

-9- WP No.2318/2022

Juvenile Police Units (SJPU) as also the

Prosecutors.

7.6. In similar Public Interest Litigation having

been filed before the High Court of

Judicature at Bombay, directions have been

issued which he submits is required to be

issued in the present matter also.

8. Shri M G Kumar, Learned Counsel for Respondent

No.1- Union of India, submits that most of the

directions are sought for against the State

Authorities and not against the Union, he

however submits that the Union will comply with

any directions that may be issued in this regards.

9. Ms. Vani, learned Additional Government

Advocate, submitted that the State Authorities

are issuing notices to the complainant in respect

of the aforesaid offences and as such following

the mandate of law. In view of the same, there

may not be a requirement for issuance of any

- 10 - WP No.2318/2022

fresh directions. However, directions if any issued

will be followed by the State and its authorities.

10. Heard Shri Rohan Kothari, learned counsel for the

Petitioners, Shri M.G. Kumar, learned Counsel for

the Respondent No.1- Union of India and Ms.

Vani, learned AGA for Respondent No. 2 to 4 the

State authorities.

11. Section 439(1-A) is reproduced hereunder for

easy reference:

(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).

12. Section 40 of the POCSO Act reads as under:

40. Right of child to take assistance of legal practitioner

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.

- 11 - WP No.2318/2022

13. The amended Provisions of Sections 376(3), 376(AB), (DA), (DB) of the Indian Penal Code

376(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim.

376 (AB) Punishment for rape on woman under twelve years of age

Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

376 (DA) Punishment for gang rape on woman under sixteen years of age

Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine:

- 12 - WP No.2318/2022

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

376 (DB) Punishment for gang rape on woman under twelve years of age

Where a woman under twelve years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine, or with death:

Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.

14. None can have any doubt that offenses under the

POCSO Act are heinous in nature and are more

often than not committed by depraved persons.

15. The benefit of Article 21 of the constitution is not

only available to the accused but also to the

victims and their families of any criminal offence.

For an orderly society to exist it is but required

that the victims of criminal offences more

- 13 - WP No.2318/2022

particularly heinous offences have a say in the

criminal prosecution of the accused.

16. 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.

17. We have perused the Judgment of the High Court

of Judicature at Bombay in PIL No.5/2021 (Arjun

Kishanrao Malge -v- State of Maharashtra

and Others dated 08.04.2021), as also the

- 14 - WP No.2318/2022

judgement of the Hon'ble Delhi High Court in

Reena Jha v- Union of India (W.P. (C)

5011/2017). The Division Bench of the Hon'ble

High Court of Judicature at Bombay as also the

Single Judge of the Hon'ble High Court of Delhi

have extensively dealt with this matter and

issued directions which in our opinion could also

be issued by this Court. Hence, we issue the

following directions:

17.1. The Investigation officer or the SJPU shall

inform the Victim's

parents/caregiver/guardian as also the legal

counsel if appointed, about any application

for bail or any other application having been

filed by the accused or the prosecution in

the said proceedings.

17.2. The public prosecutor shall serve a copy of

any application or objections to be filed in

the said proceedings on the Victim's

parents/caregiver/guardian as also the legal

- 15 - WP No.2318/2022

counsel if appointed and issue notice of

hearing of such application on them, along

with all relevant documents and records

necessary for their effective participation in

the proceedings, in this regard the

prosecutor is entitled to take the assistance

of the Investigating Officer or the SJPU and

file necessary proof of service of copies and

notice of hearing. In the unlikely event of

service not being effected it shall be the

duty of the Prosecutor to inform the reasons

in writing to the relevant court.

17.3. The Accused or the counsel for the accused

shall serve a copy of any application or

objections to be filed in the said proceedings

on the Victim's parents/caregiver/guardian

as also the legal counsel if appointed and

issue notice of hearing of such application

on them, along with all relevant documents

and records necessary for their effective

participation in the proceedings. The

- 16 - WP No.2318/2022

Accused or the Counsel for the Accused to

file necessary proof of service of copies and

notice of hearing. In the unlikely event of

service not being effected it shall be the

duty of the Accused or Counsel for the

Accused to inform the reasons in writing to

the relevant court.

17.4. In the event of the accused being a close

family member or an acquaintance of the

family, in addition to the above a copy of

any application or objections to be filed in

the said proceedings shall be served on the

jurisdictional Child Welfare Committee

(CWC) and issue notice of hearing of such

application on CEC, along with all relevant

documents and records necessary for their

effective participation in the proceedings;

17.5. The concerned Court, before proceeding to

hear the application, shall ascertain the

status of service of notice, and if it is found

- 17 - WP No.2318/2022

that notice has not been issued or though

issued has not been served, the Court may

make such reasoned order as it deems fit to

secure the ends of justice, 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.

17.6. Despite service of the above notice, if none

were to appear, the Court may proceed

further or issue a fresh notice, as the Court

may deem fit and proper, considering the

interest of justice.

17.7. When the proceedings under the POCSO Act

also involve offences under Sections 376(3),

376-AB, 376-DA or 376-DB of the Indian

Penal Code, the notice to the victim shall be

issued under Section 439(1-A) read with

Rule 4(13) and 4(15).

- 18 - WP No.2318/2022

17.8. Whenever 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 an application for bail be it

regular, interim, transit or any other

classification, notice shall be issued by the

Accused to the Investigating officer, SJPU,

Public Prosecutor as also any counsel on

record for the victim/

complainant/informant;

17.9. 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/Taluka Legal

Services Authority.

17.10. The state Government to provide for

sufficient funds in order to make payments

to the counsel so appointed.

                              - 19 -               WP No.2318/2022


    17.11. On   service      of   notice     on   the    Victim's

parents/caregiver/guardian as also the legal

counsel, they are to be informed about the

protection available under Witness

Protection Scheme, 2018 and enquire if

they require any such protection, if there is

a request made for police protection, the

same shall be considered and granted in

terms of the Witness Protection Scheme

2018. In the event of information being

provided by a whistleblower necessary

protection to be provided in terms of The

Whistle Blowers Protection Act, 2014.

18. The Registrar General is directed to forward a copy

of this order

18.1. to all Sessions Judges and Special Court

Judges (POCSO Court) in the State of

Karnataka for due compliance.

- 20 - WP No.2318/2022

18.2. to the Director Karnataka Judicial Academy,

to incorporate the above directions in the

concerned training programs.

18.3. to the Director-General of Police, State of

Karnataka, who in turn is directed to

forward it to all Station House officers,

Special Juvenile Police Units and all

concerned with offences under the POCSO

Act in the Police Department. The Director

General of Police, State of Karnataka is also

directed to get conducted necessary

programs to sensitize the police personnel

and train them to comply with the above

directions. The Director-General of Police,

State of Karnataka is also directed to set up

a suitable system for monitoring and

reporting on the compliance of the above by

the concerned police personnel.

18.4. to the Director of Prosecution, State of

Karnataka, who is in turn directed to

- 21 - WP No.2318/2022

forward the same to all prosecutors in the

state with a direction to them to comply

with this order.

18.5. to the Member Secretary, Karnataka State

Legal Services Authority who in turn is

directed to forward it to all District Legal

Services Authority Officers and Taluka Legal

Services Authority Officers within the State

of Karnataka with a further direction to

make available legal aid whenever

requested, free of cost.

19. Writ Petition stands disposed with above directions

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

ln