The main legal point established in the judgment is the entitlement of the child to legal representation, participation in proceedings, and the mandatory presence of the informant or authorized person at the time of hearing of bail applications for offences against children under the POCSO Act.

JUDGMENT :

G.S. Kulkarni, J.

1. The petitioner who is a social worker, working with child victims of sexual abuse and their families, across Mumbai and who is also performing the role as a support person in child sexual abuse cases in cases before the Child Welfare Committee, is before the Court pro bono publico, raising issues in regard to the rights of the children to participate in the trial of offences under the Protection of Children from Sexual Offences Act (for short 'the POCSO Act'). The petitioner raises a concern in regard to the implementation and compliance of Section 40 of the POCSO Act read with Rule 4 of the Protection of Children from Sexual Offences Rule, 2012 (for short 'the POCSO Rules').

2. The petitioner's case is : That he has come across several cases under the POCSO Act, in which the Courts and the police have overlooked or failed to give effect to the mandate of Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules. The petitioner also raises a concern of the oblivity and non-recognition of the provisions of Section 439(1-A) of the Code of Criminal Procedure (for short 'Cr.P.C.') as inserted by the Act 22 of 2018 with effect from 21 April 2019 in cases under the POCSO Act.

3. It is contended that POCSO Act is a special law enacted inter alia for protection of children, from offences of sexual assault, sexual harassment etc. and for trial of such offences. It is in such context considering the special circumstances which arise to protect the interest of the victim and the social interest, the legislature has framed Section 40 which postulates the rights of a child, to take assistance of a legal practitioner. Such provision stipulates that subject to the proviso to section 301 of the Cr.P.C., the family or guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence committed under the POCSO Act. The proviso below Section 40 mandates 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. According to the petitioner, relevant to Section 40 is the provision of Rule 4 of the POCSO Rules which provides for a procedure for care and protection of the child, which according to the petitioner, is required to be considered and given effect to, in letter and spirit, and more particularly qua the implementation of Rule 4(13) and 4(15). These sub-rules inter alia provide for an obligation inter alia on the Special Juvenile Police Unit (SJPU), or the local police to keep the child and child's parents or guardian to be informed about the developments, including the arrest of the accused, applications filed and other Court proceedings, and the nature of the information to be provided. The object of such provision being to ensure participation of the victim in the administration of justice, in POCSO cases.

4. The petitioner also refers to the Criminal Law (Amendment) Act, 2018, whereby Section 439 of the Cr.PC. which deals with the "Special power of the High Courts or Court of Session regarding bail", being amended, incorporating sub-section (1A) with effect from 21 April 2019, to provide that the presence of the informant or any person authorised by him, shall be obligatory at the time of hearing of an application for bail of a person accused of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code. These are offences under the Indian Penal Code in relation to the children. The petitioner contends that considering the mandate of Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules, the amendment to the provisions of sub-section (1A) of Section 439 of the Cr.PC. are required to be applied mutatis mutandis to the offences under the POCSO Act. Such application of these provisions, would ensure a fair representation to the victims of child sexual assault, their families and the publ