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ALLAHABAD HIGH COURT
Ajay Bhanot, J.
Junaid – Applicant
versus
State of U.P. and Anr. – Opp. Parties
Criminal Misc. Bail Application No.46998 of 2020
Decided on 9.7.2021
(A) Criminal Procedure Code, 1973 – Section 439 (IA) – Protection of Children From Sexual Offences Act, 2012 – Section 33 (7) – Protection of Children From Sexual Offences Rules, 2020 – Applicability of Section 439 (IA) Cr.P.C. to bail applications for offences under POCSO Act, 2012 – Legislature consciously did not incorporate offences under POCSO Act, 2012 in Section 439(IA) Cr.P.C. – Requirement of mandatory presence of persons nominated in Section 439(IA) Cr.P.C., at the hearing of bail application, is confined only to offences stipulated in provision namely Section 376(3), Section 376, Section 376 AB, Section 376 DA, Section 376DB of I.P.C. – Persons nominated in Section 439(IA), Cr.P.C. may not be obligated to attend but are certainly entitled to be present at hearing of bail application in POCSO Act, 2012 offences – Notice to victim by court is not contemplated under POCSO Act, 2012 read with POCSO Rules, 2020 – Information of bail be given to complainant/informant/victim or other person in whom child has trust and confidence. (Paras 29, 34 and 43)
(B) Protection of Children From Sexual Offences Rules, 2020 – Rule 7 – Criminal Procedure Code, 1973 – Section 304 – Legal aid and assistance – Right to a Legal Counsel without right of hearing is illusory – Right to be heard by court is concomitant to right to a Legal Counsel – Rights become effective only when child is imparted information about entitlements and services and child is able to access relevant services like free legal aid and provided a support person in eligible cases – Rights of child come to fruition after authorities {CWC/ local Police/SJPU} perform their statutory functions and apprise the child of its rights to information and services under POCSO Act, 2012 and POCSO Rules, 2020 and as detailed in Form A – DLSA and HCLSC have to provide services of a Legal Counsel to victim free of cost, upon recommendation of CWC, in bail proceedings before District Court and High Court respectively – Agencies have to coordinate their functioning in this regard – Police and other concerned authorities in State of Uttar Pradesh, shall ensure strict compliance of provisions of Section 33(7) of POCSO Act, 2012 to protect identity of victim. (Paras 55, 56, 59 and 60)
(C) Protection of Children From Sexual Offences Act, 2012 – Section 33 (7) – Identity of child victim – In terms of Section 33 (7) of POCSO Act, 2012 name of victim/parents/legal guardians of victim or her address or any other information which tends to reveal identity of child shall be anonymized – All other steps shall be taken by police, CWC and all other concerned authorities to ensure that identity of victim is not compromised – CWC and HCLSC shall be joined as necessary parties to all bail applications for offences under POCSO Act, 2012 – CWC and HCLSC shall ensure that they are represented by their respective counsels when bail application is placed before court – DLSA will be a party in bail application in district courts – Child or her parents or legal guardians shall be impleaded as party without disclosing their names, and other identifying details like address and so forth – Director General of Police, Principal Secretary, Child Welfare Department, Government of Uttar Pradesh and L.R., Ministry of Law, Government of U.P. nominate officers who shall create appropriate procedures in this regard within four weeks – Directions to all concerned police stations/police officials and Police Heads of Districts, CWC, DLSA and HCLSC shall immediately thereafter be issued for strict compliance. (Paras 61 to 64)
(D) Criminal Procedure Code, 1973 – Section 439 – Protection of Children From Sexual Offences Act, 2012 – Section 33 – Protection of Children From Sexual Offences Rules, 2020 – Rule 7 – Bail application – Timeline and procedure for maturation of bail application – Bail maturation process has to be conducive to implementation of POCSO Act, 2012 read with POCSO Rules, 2020 and protection of rights of child under said enactments – Where time period for performance of statutory duties is not provided, authorities are obligated to perform duties in a reasonable time frame – POCSO Act, 2012 read with POCSO Rules, 2020 is a special legislation – It is open to High Court on administrative side to consider feasibility of creating specific rules for bail maturation/time period for advance notice upon Government Advocate and other necessary parties for said enactments, and regarding joinder of parties to bail applications – Police authorities have to create a credible system of oversight and accountability to deter individual officers from defying orders of court, acting contrary to law and committing constitutional violations – Director General of Police, UP Police/competent officer in PHQ shall create a framework and standard operating procedures for State of U.P. to ensure compliance of directions and strict adherence to timeline of duties stated earlier – Framework shall include nomination of officials responsible for executing specific tasks with a corresponding time line – Elaborate directions issued. (Paras 67, 71, 84, 85 and 89)
Result: Bail Application allowed.
JUDGMENT
The judgement is being structured in the following conceptual framework to facilitate the discussion:
I. Introduction
II. Submissions of learned counsels
III. Defining the controversy and its origins
IV. Rights of an accused in a bail application
V. Child rights jurisprudence: authorities and principles
VI. Relevant provisions from POCSO Act read with POCSO Rules:
A. Right of victim to receive notice of the bail application and mode of service
B. Applicability of Section 439(IA) Cr.P.C.
C. Case Laws: Discussion
D. Enforcement of rights of the child under POCSO Act r/w POCSO Rules
E. Protecting the identity of the child
VII. Timeline and procedure for maturation of bail application
VIII. Monitoring and implementation of the directions in the judgement
IX. Order on bail application
X. Appendix
I. Introduction:
2. While arguing the bail application Sri Mohd. Mustafa, learned counsel for the applicant submitted at length that the question of service of notice upon the victim raises legal issues of public importance. Considering the general importance of the matter, the members of the Bar were invited to assist the Court.
3. At the request of the Court, Sri Nazrul Islam Jafri, learned Senior Counsel assisted by Sri Mohammad Zubair, learned counsel, Sri Dharmendra Singhal, learned Senior Counsel assisted by Sri Shivendra Raj Singhal, learned counsel, Sri Vinay Saran, learned Senior Counsel assisted by Sri Saumitra Dwivedi, learned counsel, Sri Arun Kumar Singh Deshwal, learned counsel and Sri R.P.S. Chauhan, learned counsel also made their submissions. The Court expresses gratitude to the learned members of the Bar for their able assistance and appreciates their selfless service to the cause of law.
4. Shri Ashish Mishra, learned counsel for the High Court has been heard. Affidavit on behalf of the High Court is taken in the record.
5. The State represented by Shri Manish Goyal, learned Additional Advocate General assisted by Shri Avinash Kumar Tripathi, learned AGA, has to its credit not adopted an adversarial approach but that of a stakeholder in this controversy. Though, the acid test lies ahead in the efficacious implementation of the directions of the Court.
II. Submissions of learned counsels:
6. The following submissions were made by the learned Senior Counsels and learned Counsels at the Bar:
(i) The practice of issuance of notices to the victim by the courts in bail applications is contrary to provisions of the Protection of Children From Sexual Offences Act, 2012 (hereinafter referred to as the “POCSO Act, 2012”.) read with the Protection of Children From Sexual Offences Rules, 2020 (hereinafter referred to as the “POCSO Rules, 2020”).
.
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(ii) Practice of issuance of the notice of bail application to the victim by the court varies from court to court. This leads to inconsistencies in procedures, introduces uncertainty in the time frame for maturation of bail applications, and delays the hearing of bail applications.
(iii) Authorities need adequate time to perform their statutory duties under the POCSO Act, 2012 read with POCSO Rules, 2020 before a bail application becomes ripe for being placed before the Court. The time period of two days for maturation of a bail under the Rules of Court, 1952 of Allahabad High Court is insufficient in cases under the said enactment.
(iv) Various authorities need to sync up their functioning and work under a defined time frame to uphold the rights of victim and to protect the rights of the accused.
(v) Steps have to be taken by all stakeholders to protect the identity of the victim.
(vi) The judgements of the Delhi High Court in Reena Jha Vs. Union of India, 2020 SCC OnLine Del 1389 and Miss G (Minor) Thru. Her Mother Vs. State of NCT Delhi, 2020 SCC OnLine Del 629 and the judgement of Bombay High Court in Arjun Kishanrao Malge Vs. State of Mahar
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