Issuance of prior notice to victim/complainant for suspension of sentence in pending appeal preferred by the appellant/accused convicted under the offences against woman or child punishable under the provisions of the POCSO Act

JUDGMENT :

Sanjay K. Agrawal, J.

1. The short question that has cropped up for consideration would be, whether for considering an application for suspension of sentence and grant of bail under Section 389(1) of the CrPC, notice to the victim/complainant under the provisions of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act') would be necessary as appellant NO.1 has been convicted for offence under Section 6 of the POCSO Act and appellant No.2 has been convicted for offence under Section 6 read with Section 17 of the POCSO Act in addition to their conviction for offences under the provisions of the Indian Penal Code.

2. In this appeal preferred under Section 374(2) of the CrPC, application for suspension of their substantive jail sentence has also been preferred by the appellants/accused for suspension of their sentences for offences under the provisions of the IPC as well as under the provisions of the POCSO Act.

3. Mr. Ashish Surana, learned Amicus Curiae, would submit that by Amendment Act No.5 of 2009 and by virtue of the POCSO Rules, 2007, the right created in favour of the victim has to be given fullest effect to and interest of the victim/informant/complainant has to be protected post trial proceedings also and that would extend while hearing the application for suspension of sentence as ultimately by suspending the substantive jail sentence awarded, bail has to be granted which would be covered within the meaning of sub-rule (15) of Rule 4 of the POCSO Rules, 2020. He would further submit that in the matter of Aparna Bhat and others v. State of Madhya Pradesh and another 2021 SCC OnLine SC 230 while setting aside the imposition of certain bail conditions in a case involving sexual offence against woman, the Supreme Court has held that in case bail is granted the complainant should immediately be informed that the accused has been granted bail and copy of the bail order be made over to him/her within two days, as such, notice of the application for suspension of sentence in any criminal appeal has to be served to the victim/complainant, so that he/she may have a say on the application for suspension of sentence, in which ultimately by suspending sentence the accused has to be enlarged on bail in pending criminal appeal, therefore, notice to the complainant/victim would be absolutely necessary before considering the application for suspension of sentence.

4. We have heard learned counsel appearing for the parties as well as the amicus curiae and given our thoughtful consideration and also went through the records with utmost circumspection.

5. As noticed above, the short question would be, whether notice to the victim/complainant of offence under the POCSO Act would be necessary while considering the application for suspension of sentence preferred under Section 389(1) of the CrPC in pending criminal appeal against conviction of the appellants/accused persons.

6. At this stage, it would be necessary to notice brief history relating to evolution of victim's right as the State has ultimate control over the investigation and conduct of criminal proceedings during trial. Earlier the right of victim was not recognized appropriately having no participation in adjudication process. The Supreme Court in the matter of Rattan Singh v. State of Punjab (1979) 4 SCC 719 pointed out the deficiency in the system wherein the right of victim has not been recognized at all. Thereafter the Law Commission of India in its 154th report in Chapter XV on Victimology made several recommendations on compensation to the victim and again the Committee on Reforms of Criminal Justice System was constituted by the Government of India and ultimately, the Malimath Committee report made several recommendations relating to participation of victim in trial, impleadment of victim in trial as party and representation through Advocate and the report of the Law Commission and the recommendations of the Committee made therein is on