IMPORTANT POINT
The victim and their family are entitled to be informed about the status of legal proceedings but are not required to be made parties in appeals or applications for suspension of sentence under the POCSO Act.

JUDGMENT/ORDER

1. Heard the learned counsel for respective parties at length.

2. The appellant herein has made the victim as party respondent no.2 in the Appeal as well as application seeking suspension of sentence, being APPA (St) No. 8955/2023. This practice is followed in all appeals where the accused/appellant is convicted for the offence punishable under the provisions of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act').

3. On query as to why the victim has been made partyrespondent no.2, Mr. N.S.Giripunje, the learned counsel for the appellant submits that the victim is made party in terms of the law laid down by the Division Bench of this Court, in the case of Arjun Kishanrao Malge vs. State of Maharashtra.

4. With the assistance of the learned counsel appearing for the appellant and the learned APP I have minutely gone through the aforesaid judgment, and found that there is no such direction issued by the Division Bench.

5. The petitioner before the Division Bench was a social worker, working with the child victims of sexual abuse and their families across Mumbai. According to him, in several cases under the POCSO Act, the Courts and the Police have overlooked or failed to give effect to the mandate of Sec. 40 of the POCSO Act read with Rule 4 of the POCSO Rules. He also raised a concern of the oblivity and non-recognition of the provisions of the provisions of Sec. 439(1A) of the Code of Criminal Procedure, 1973 (in short 'the Code').

6. The Division Bench considered these provisions. I will be referring to these provisions in context with the practice followed by the parties in making the victim as party- respondent in the appeal filed u/s. 374 of the Code against conviction as also the application filed u/s 389 of the Code seeking suspension of sentence.

7. Sec. 40 of the POCSO Act reads thus:

<WXY>"40. Right of child to take assistance of legal practitioner -

Subject to the proviso to Sec. 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 Service Authority shall provide a lawyer to them."</WXY>

8. As could be seen the family or the guardian of the child is entitled to the assistance of legal counsel of their choice for any offence under this Act, but subject to the proviso to Sec. 301 of the Code. The provision also incorporates that if the family or the guardian of the child are unable to afford local counsel, the Legal Services Authority shall provide a lawyer to them. Thus, this Sec. provides for a right of child to take assistance of legal practitioner through the family or the guardian. The said right is subject to the proviso to Sec. 301 of the Code which provides that the Public Prosecutor or the Assistant Public Prosecutor, who shall be the in charge of a case, may appear and plead without any written authority before any Court in which the appeal is pending. It further provides that if in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or the Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or the Assistant Public Prosecutor and may with the permission of the Court submit written arguments after the evidence is closed in the case.

9. Thus, Sec. 40 provides that the family or the guardian of the child is entitled to assistance of a legal counsel of their choice. The word 'entitled' would only mean that if the family or the guardian of the child, chooses to appear before the Court, he/ she will be entitled to have assistance of a legal counsel of their choice and if they are unable to afford the legal counsel, the Legal Services Authority