Manoj Patel @ Appu @ Bhakku vs The State Of Madhya Pradesh
2022 Latest Caselaw 9105 MP

                                      1
               IN THE HIGH COURT OF MADHYA PRADESH
                            AT JABALPUR
                              CRA No. 3500 of 2017
              (MANOJ PATEL @ APPU @ BHAKKU Vs THE STATE OF MADHYA PRADESH)

Dated : 08-07-2022
         Shri Ajay Jain, learned counsel for the appellant.

         Shri Yogesh Dhande, learned Government Advocate for the respondent-

State.

The appellant has filed an application under Section 389 of Cr.P.C. for suspension of sentence.

In view of the objection raised by learned Government Advocate,

questions cropped up are -

(i) Whether in an appeal assailing a judgment whereby the appellant is convicted under the POCSO Act, victim is to be impleaded as a party ?

(ii) Whether victim/complainant is required to be put to notice at the time of consideration of application for suspension of sentence ?

Shri Jain, learned counsel for the appellant relied on two judgments of Calcutta and Chhattisgarh High Courts viz. Ganesh Das vs. Unknown (2021 SCC OnLine Cal 1422) and Akash Chandrakar and another vs. State of

Chhattisgarh (2022 SCC OnLine Chh 110).

The judgment of Calcutta High Court was considered by Chhattisgarh High Court. A careful reading of Calcutta High Court's judgment makes it clear that it relates to only first question aforesaid. Pertinently, on this question/aspect, Chhattisgarh High Court has also not taken a different view. The Chhattisgarh High Court in Akash Chandrakar (supra) opined that -

"19. Thus, from the aforesaid discussion, we are of the considered opinion that though the POCSO Act does not provide for issuance of notice to the victim or his parents or

guardian at the time of consideration of application for suspension of sentence of the accused/appellant who has preferred an appeal and who has been convicted for offence under the provisions of the POCSO Act, but by virtue of sub-rule (15) of Rule 4 of the Rules of 2020 and by virtue of the guidelines issued by the Central Government under Section 39 of the POCSO Act, issuance of prior notice to the victim/complainant or his/her parents or guardian/informant would be absolutely necessary in the ends of justice before hearing the application for suspension of sentence preferred under Section 389(1) of the CrPC in pending criminal appeal by convicted person and if the sentence awarded to the accused is suspended, he has to be released on bail on terms and conditions imposed by that Court, as such, for suspension of sentence and grant of bail under Section 389 of the CrPC proceeding, the victim/complainant or his/her parents would be entitled for prior notice of hearing of that application.

22. Thus, from the aforesaid legal analysis and following the provisions contained in sub-rule (15) of Rule 4 of the Rules 2020 as well as the guidelines issued by the Central Government in exercise of the powers conferred under Section 39 of the POCSO Act and following the decision of the Supreme Court in Aparna Bhat (supra), we are of the considered opinion that notice either to the victim or one of his/her parents or guardian/informant or support person in whom the child has trust and confidence would be absolutely necessary in the ends of justice while hearing and considering the application for suspension of sentence in pending appeal preferred by the appellant/accused convicted under the offences against woman or child punishable under the provisions of the POCSO Act."

The Chhattisgarh High Court in para-21 of the said judgment considered the Calcutta High Court's order in the matter of Ganesh Das (supra).

We are in respectful agreement with a view taken by both the High Courts in Ganesh Das and Akash Chandrakar (supra).

The Calcutta High Court in Ganesh Das (supra) opined that -

"26. For the aforesaid reasons, we hold that:

i) The victim is not a necessary party to a Criminal Appeal from conviction for offences against woman or child, punishable under provisions of the I.P.C. or POCSO Act or any other penal provision which will apply in relation to offences affecting human body against any "woman" and/or "child"Â, both those expressions being understood in the context of the respective legislation which deals with such offences.

ii) No such appeal would be defective in the absence of impleadment of the victim.

iii) The procedure to be adopted in all such appeals would be to deal with those appeals without insisting on the impleadment of the victim. In cases where, over and above the assistance of the Public Prosecutor representing the State, the appellate court deems it necessary to provide further assistance to secure the interest of the victim through legal aid, the HCLSC or the DLSA concerned may be required to provide assistance through an empanelled or other advocate as may be decided by the HCLSC or the DLSA concerned."

Thus, we deem it proper to direct learned Government Advocate to serve the victim on the application for suspension of sentence.

List this matter after 15 days.

        (SUJOY PAUL)                                                                              (PRAKASH CHANDRA GUPTA)
           JUDGE                                                                                           JUDGE

   PK

PARITOS
          Digitally signed by PARITOSH KUMAR

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=JUDICIAL, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=43c946b45c8a66c03b68676e788802a41cc03b 5b9567caf9c2c3b981b8cb6596,

H KUMAR pseudonym=5FDD657FF77E3DB41E52E72D7A39EEED 5DBC7BA4, serialNumber=678DC301994B496012A9643D92E6C633 5F11A93DA54F2DFB6E44B8B7A45044FC, cn=PARITOSH KUMAR Date: 2022.07.09 15:25:35 +05'30'