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POCSO- "Right Of Minor Victims To Participate In The Judicial Process"- Bombay High Court Issues Guidelines

Sharmeen Hakim
8 April 2021 8:45 AM GMT
Bombay High Court POCSO Judgment

The Bombay High Court on Thursday issued guidelines for the effective implementation of the Protection of Children from Sexual Offences Act (POCSO Act) and To ensure the right of a child victim to participate in the in the Judicial process is protected.

A Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni, among other instructions, directed the Special Juvenile Police Unit (SJPU) to give the court reasons in writing if the victim's family, guardian or legal counsel could not be put to notice regarding the court's proceedings.

When an application is made on behalf of the prosecution, it would be the duty of the office of the public prosecutor to issue a notice of hearing of such application to the child's family or as the case may be, the guardian, and where a legal counsel on behalf of the child is already on record, to such legal counsel, along with all relevant documents and the record necessary for effective participation in the proceedings.

The Bench held that before such an application is heard, the trial Court must ascertain the status of service of notice, and if it so found that the notice has not been issued, the court may make such reasoned order as it may deem fit to secure ends of justice taking into account any emergent situations that warrant dealing with the application in the absence of the victim.

The Court held that if the victim's family does not appear despite effective notice, the court may proceed to hear the matter.

The Bench passed the order on a PIL filed by Arjun Malge, who works with child victims of sexual abuse and their families, across Mumbai. He also acts as a Support Person in child sexual abuse cases as per the orders of the Child Welfare Committee in view of Rule 4(7) of POCSO Rules.

Advocate Somasekhar Sundaresan had submitted that none of the following provisions are practised- Section 40 of the POCSO Act, Rule 4 sub rule 13 of POCSO Rule 2020 and Section 439(1-A) of CrPC.

Section 40 of the POCSO Act states that the victim has a right to be represented/assisted by a legal aid lawyer. Rule 4 (13) of POCSO Rule 2020 states that the Police should inform the victim about court proceedings including bail applications moved, next date of the court proceedings etc. Section 439 (1-A) CrPC was an amendment introduced in 2018, which requires the victim to be notified in case a bail application is moved by the accused in certain categories of rape cases.

"The Protection of Children from Sexual Offences Act (2012) was enacted with a view to protect children from sexual abuse and to ensure speedy justice to minor victim of sexual assault. Section 40 r/w Rule 4 of the POCSO Act, 2012 envisages the right of the minor victims to participate in the justice dispensing process in a fair manner and thereby requires that a victim be informed about every court proceeding," the petition stated.

Moreover, "The Criminal Law (Amendment) Act, 2018 was brought into effect whereby Section 439 (1-A) of the Criminal Procedure Code, mandates the presence of the informant or any person authorized by him at the time of hearing of the application for bail moved by the accused implicated under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code."

The Bench gave directions for a copy of the judgment to 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.

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