Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 616

IN THE HIGH COURT OF ALLAHABAD
AJAY BHANOT, J.
Junaid – Appellant
Versus
State of U.P. and Another – Respondents
Criminal Misc Bail Application No. 46998 of 2020
Decided on : 09-07-2021

Advocates:
Advocate Appeared:
For the Appellant : Mohammad Mustafa
For the Respondent: Maya Pati Pandey

Point of law: The POCSO Act, 2012 read with POCSO Rules, 2020 is a special legislation. It is open to the High Court on the administrative side to consider the feasibility of creating specific rules for bail maturation/time period for advance notice upon the Government Advocate and other necessary parties for the enactments, and regarding joinder of parties to the bail applications.

Headnote:
Protection of Children From Sexual Offences Act, 2012 – Section 33 (7), 40, 42-A, 45 - Protection of Children From Sexual Offences Rules, 2020 – Rule 7 - Constitution of India, 1950 - Articles 14 and 21 – Criminal Procedure code, 1973 – Section 301, 439 (IA) - The Juvenile Justice (Care and Protection of Children) Act, 2015 - Section 27 , 30 – Indian Penal code, 1860 - Section -363, 366, 368, 376(3), 376, 376 AB, 376 DA, 376DB - Rules framed under Section 45 of the POCSO Act, 2012, for carrying out the purposes of the Act are called “the Protection of Children from Sexual Offences Rules, 2020 - Whether notice of a bail application for offences under the POCSO Act, 2012 read with POCSO Rules, 2020 is liable to be issued by the Court to the child and the consequences thereof? Or whether notice of such bail application is liable to be served upon the child/ authorized person by the authorities nominated for the purpose and in the manner prescribed in the POCSO Act, 2012 read with POCSO Rules, 2020 - What is a reasonable time line to enable various authorities to discharge their statutory functions under the POCSO Act, 2012 read with POCSO Rules, 2020 before the bail application becomes ripe for being placed before the Court - A decision on the aforesaid issues to resolve the bail conundrum has to ensure that the practices of the bail processual regime are consistent with the POCSO Act, 2012 read with POCSO Rules, 2020, protect the rights of the both victim and the accused, and define the time frame for placing the bail application after its maturation before the Court
Finding of the court: Rules of Court, 1952 contemplate an advance notice of two days to the Government Advocate prior to placement of the bail application before the Court. The notice period is to enable the Government Advocate to receive appropriate instructions from the police authorities in the case - In the case of SC-ST Act, 1989, the said notice period of two days previous notice to the Government Advocate is insufficient for maturation of a bail application under POCSO Act, 2012 read with POCSO Rules, 2020 - Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.
Result: Bail application allowed.

JUDGMENT :

1. The judgment is being structured in the following conceptual framework to facilitate the discussion:

1.	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 judgment
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”].

(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 judgments 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,

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2021 Supreme(All) 616

IN THE HIGH COURT OF ALLAHABADAJAY BHANOT, J.Junaid – AppellantVersusState of U.P. and Another – RespondentsCriminal Misc Bail Application No. 46998 of 2020Decided on : 09-07-2021

Cases Referred (9)

IN THE HIGH COURT OF ALLAHABAD
AJAY BHANOT, J.
Junaid – Appellant
Versus
State of U.P. and Another – Respondents
Criminal Misc Bail Application No. 46998 of 2020
Decided on : 09-07-2021