2.CRPILNo.52021corrected.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

PUBLIC INTEREST LITIGATION NO.5 OF 2021

Arjun Kishanrao Malge.

...

Petitioner

versus

1. State of Maharashtra

2. Director General of Police

3. Maharashtra State Commission for

Protection of Child Rights.

... Respondents

…..

Mr.Somasekhar Sundaresan with Ms.Saziya Mukadam & Ms.Kanchi

Trivedi, for the Petitioner.

Mr.Deepak Thakre, Government Pleader & Smt.P.P.Shinde, APP, for the

State.

Mr.Wesley Menezes with Mr.Waqar Nasir Pathan, Mr.Rajdeep Lahri, for

Respondent No.3.

…..

CORAM :- DIPANKAR DATTA, CJ &

G. S. KULKARNI, J.

RESERVED ON :-MARCH 17, 2021.

PRONOUNCED ON :- APRIL 08, 2021

JUDGEMENT (Per. 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

Prashant Rane

Judgment is corrected as per speaking to the minutes of the order dt.9/4/2021

1

2.CRPILNo.52021corrected.docx

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.PC’

)

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

interalia 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

Prashant Rane

Judgment is corrected as per speaking to the minutes of the order dt.9/4/2021

2

2.CRPILNo.52021corrected.docx

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 interalia provide for an obligation interalia 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 43