Breaking: Allahabad High Court Issues Directions & Timeline For Disposal Of Bail Applications Under POCSO Act, 2012

The Allahabad High Court last week held that only the local police or Special Juvenile Police Unit [SJPU] could serve notice on bail application for offences under the Protection of Children from Sexual Offences Act, 2012 [POCSO Act]. It also prescribed a timeline to execute the different statutory functions by the respective authorities.A bench of Justice Ajay Bhanot, alongside administered a word of caution by stating that the failure to comply with the directions laid will be due to investigation, and the delinquent officials will proceed against it departmentally.The Court enumerated a 9-point direction to ensure regular monitoring of the implementation of the directions in this judgment, including the creation of standard operating procedure, supervision of staff, preparation of a biannual report, etc.The High Court heard a bail plea under Sections 363, 366, 368 IPC, and Sections 16 and 17 POCSO Act and Section 3(2)(V) of SC/ST (POA)Act. Overturning the Additional District and Sessions Judge/Special Judge (POCSO Act), the High Court granted bail.The two-fold issues on the question of law before the High Court pertained to POCSO Act and Rules, 2020:Who can serve a notice in a bail application for offences under the POCSO Act?; andThe reasonable time to discharge statutory functions before placing the bail application before the Court.It was also to be considered by the Court that the above two issues be decided in a manner which is consistent with the POCSO Act read with Rules, 2020, protecting the rights of both victim and the accused, and define the time frame for placing the bail application after its maturation before the Court.Serving Notice For Offences Under The POCSO Act, 2012: Rule 4(13), 4(14), and (15) of the POCSO Rules cast responsibility upon the local police/SJPU to provide information about the status of investigations, developments, and schedule of court proceedings and bail applications, and other entitlements and services to the child. On a perusal of the said rules vis-a-cis the settled principles of statutory interpretation, the Court held,"By reinforcing the word "shall" with the words "be the responsibility of" in Rule 4 (13) and "shall" in Rule 4(14) of the POCSO Rules,2020, the legislature has created an imperative charter of duties for the local police/SJPU. Rule 4(13), Rule 4(14), and Rule 4(15) of the POCSO Rules, 2020 are a part of a composite scheme and are mandatory in nature."The Court further observed that the local police/SJPU is intended to be the 'sole agency to serve notice under POCSO Rules, 2020 in the manner so prescribed. The Court noted that adherence to the statutory agency and mode of service would 'fructify child's rights in this enactment.' For Court notices it held,"Notice to the victim by the Court is not contemplated under the POCSO Act, 2012 read with POCSO Rules, 2020. Without knowledge of and access to entitled information and services, the court notice is no avail to the child. Rights of the child will be undermined if court notice is deemed sufficient in such facts and circumstances."The Court cited several reasons behind divulging the duty on the local police/SJPU instead of the Court extending to (a) protecting the identity of the child under Section 33 (7) of the POCSO Act; (b) the role of CWC obviates the need for the High Court to issue notices to the victim, and that (c) the practice of notice by the Court varies from Court to Court and introduces uncertainty in the period of maturation of the bail application and delays the hearing.Discussing the child-rights jurisprudence in the backdrop, the Court held,"Recognition of the vulnerability of children to abuse and exploitation, and the incapacity of children to defend themselves against such offences. Affirmation of the responsibility of the courts and the state to create a sensitive environment to deal with the victims of such offences, and to protect the dignity and rights of the child."The Court also noted that Section 439(IA), requiring the presence of the informant at a bail hearing, does not have applicability on offences under the POCSO Act, 2012 and remains restricted to Sections 376(3), 376, 376AB, 376DA, 376DB of the Indian Penal Code. Therefore, an obligation is absent, but the person is certainly entitled to remain present at bail application in POCSO Act, 20212 offences.It further states that the POCSO Act, 2012 is a self-contained code as held in the State of Andhra Pradesh v. Mangali Yadagiri. The restrictive consequences flowing from a self-contained code was discussed in the case of S.N. Sirkantia & Co. v. Union of India, in the following words:"The Act (here Arbitration Act) is a self-contained code and exhaustive) a corollary would follow that it declares the whole of the law upon a particular subject or point and would carry with it a negative import that it shall not be permissible to do what is not mentioned in it and further than what is permissible thereunder will be...

Breaking: Allahabad High Court Issues Directions & Timeline For Disposal Of Bail Applications Under POCSO Act, 2012

Shrutika Pandey

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