While according supreme importance to the vital interests of the victims in POCSO cases, the Karnataka High Court in a learned, laudable, landmark and latest judgment titled Bibi Ayesha Khanum v. Union of India in Writ Petition No. 2318 of 2022 (GM-Police) and 2022 Livelaw (Kar) 59 delivered recently on February 23, 2022 has issued most commendable directions for the effective implementation of the Protection of Children From Sexual Offences Act, 2012 and the Protection of Children from Sexual Offences Rules, 2020, particularly in cases where the accused were to move the Court for grant of bail. It must be apprised here that the Division Bench of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindraj was disposing of a Public Interest Litigation filed by the mother of a survivor.
The Division Bench observed that:
None can have any doubt that offences under the POCSO Act are heinous in nature and are more often than not committed by depraved persons. There can be just no denying it!
To start with, this brief, brilliant and balanced judgment authored by Justice Suraj Govindraj for a Division Bench of Karnataka High Court comprising of Chief Justice Ritu Raj Awasthi and himself sets the ball rolling first and foremost in para 3 wherein it is put forth that:
In this Public Interest Litigation, the petitioners are seeking for effective implementation of the Protection of Children From Sexual Offences Act 2012 (‘POCSO Act’ for short) and the Protection of Children from Sexual Offences Rules, 2020 (‘POCSO Rules’ for short) as also the amended provisions of Section 438 and 439 of the Code of Criminal Procedure, 1973.
Simply put, the Bench then mentions in para 4 that:
The grievance of the petitioners is that in prosecution for offences under the POCSO Act when the accused were to move the Court for grant of bail, the defacto complainant and/or caregiver of the minor victim are not informed of the application filed for bail, thereby an opportunity to the complainant/victim or informants/caregiver to place their contentions and/or oppose an application for bail is denied.
To put things in perspective, the Bench then envisages in para 5 that:
The petitioners are stated to be mothers of children who have been subjected to sexual offences punishable under the POCSO Act, the petitioners being the complainants or informants in the complaints registered under the provisions of POCSO Act, the petitioners being the complainants or informants in the complaints registered under the provisions of the POCSO Act have gone through an harrowing time inasmuch as in the proceedings which had been initiated against the accused, the petitioners were not provided with an opportunity to object to the same and as such the accused having been granted bail without consideration of any objections that they had. It is with an intention that similar situations are not faced by the mothers who are the complainants or informants and/or other complainants and informants in POCSO matters that the present petition has been filed.
Needless to say, the Bench then observes in para 14 that:
None can have any doubt that offenses under the POCSO Act are heinous in nature and are more often than not committed by depraved persons.
Most remarkably, the Bench then minces no words to state it upfront in para 15 that:
The benefit of Article 21 of the constitution is not only available to the accused but also to the victims and their families of any criminal offence. For an orderly society to exist it is but required that the victims of criminal offences more particularly heinous offences have a say in the criminal prosecution of the accused.
No less remarkable is what is then clearly stated in para 16 that:
Though the prosecution of such offences rests with the State, who is to act impartially, the prosecution system is overburdened, many a time prosecutors not having been appointed, leading to inordinate delay. If a victim or complainant wants to and can effectively assist the prosecution, the same is required to be permitted, albeit with the caveat that the prosecutor would always be in charge of the prosecution and would be the deciding authority as regards the mode and manner of conducting of the prosecution. For this to happen it is essential that the complainant/Victim is aware of the proceedings in court.
Most significantly, what forms the cornerstone of this learned judgment is then most succinctly stated in para 17 wherein it is held that:
We have perused the Judgment of the High Court of Judicature at Bombay in PIL No.5/2021 (Arjun Kishanrao Malge -v- State of Maharashtra and Others dated 08.04.2021), as also the judgement of the Hon’ble Delhi High Court in Reena Jha v- Union of India (W.P. (C) 5011/2017). The Division Bench of the Hon’ble High Court of Judicature at Bombay as also the Single Judge of the Hon’ble High Court of Delhi have extensively dealt with this matter and issued directions which in our opinion could also be issued by this Court. Hence, we issue the following directions:
17.1. The Investigation officer or the SJPU shall inform the Victim’s parents/caregiver/guardian as also the legal counsel if appointed, about any application for bail or any other application having been filed by the accused or the prosecution in the said proceedings.
17.2. The public prosecutor shall serve a copy of any application or objections to be filed in the said proceedings on the Victim’s parents/caregiver/guardian as also the legal counsel if appointed and issue notice of hearing of such application on them, along with all relevant documents and records necessary for their effective participation in the proceedings, in this regard the prosecutor is entitled to take the assistance of the Investigating Officer or the SJPU and file necessary proof of service of copies and notice of hearing. In the unlikely event of service not being effected it shall be the duty of the Prosecutor to inform the reasons in writing to the relevant court.
17.3. The Accused or the counsel for the accused shall serve a copy of any application or objections to be filed in the said proceedings on the Victim’s parents/caregiver/guardian as also the legal counsel if appointed and issue notice of hearing of such application on them, along with all relevant documents and records necessary for their effective participation in the proceedings. The Accused or the Counsel for the Accused to file necessary proof of service of copies and notice of hearing. In the unlikely event of service not being effected it shall be the duty of the Accused or Counsel for the Accused to inform the reasons in writing to the relevant court.
17.4. In the event of the accused being a close family member or an acquaintance of the family, in addition to the above a copy of any application or objections to be filed in the said proceedings shall be served on the jurisdictional Child Welfare Committee (CWC) and issue notice of hearing of such application on CEC, along with all relevant documents and records necessary for their effective participation in the proceedings;
17.5. The concerned Court, before proceeding to hear the application, shall ascertain the status of service of notice, and if it is found that notice has not been issued or though issued has not been served, the Court may make such reasoned order as it deems fit to secure the ends of justice, taking into account any emergent circumstances that warrant dealing with the application in the absence of the Victim’s parents/caregiver/ guardian or legal counsel.
17.6. Despite service of the above notice, if none were to appear, the Court may proceed further or issue a fresh notice, as the Court may deem fit and proper, considering the interest of justice.
17.7. When the proceedings under the POCSO Act also involve offences under Sections 376(3), 376-AB, 376-DA or 376-DB of the Indian Penal Code, the notice to the victim shall be issued under Section 439(1-A) read with Rule 4(13) and 4(15).
17.8. Whenever an accused who is charged under Sections 376(3), 376-AB, 376-DA or 376 DB of the IPC or the provisions of the POCSO Act, moves an application for bail be it regular, interim, transit or any other classification, notice shall be issued by the Accused to the Investigating officer, SJPU, Public Prosecutor as also any counsel on record for the victim/ complainant/informant;
17.9. The victim/complainant/informant who appears before the Court may be represented by own counsel or by a counsel appointed by the Karnataka State Legal Service Authority or the concerned District Legal Services Authority/Taluka Legal Services Authority.
17.10. The state Government to provide for sufficient funds in order to make payments to the counsel so appointed.
17.11. On service of notice on the Victim’s parents/caregiver/guardian as also the legal counsel, they are to be informed about the protection available under Witness Protection Scheme, 2018 and enquire if they require any such protection, if there is a request made for police protection, the same shall be considered and granted in terms of the Witness Protection Scheme 2018. In the event of information being provided by a whistleblower necessary protection to be provided in terms of The Whistle Blowers Protection Act, 2014.
In addition, the Bench then holds in para 18 that:
The Registrar General is directed to forward a copy of this order -
18.1. to all Sessions Judges and Special Court Judges (POCSO Court) in the State of Karnataka for due compliance.
18.2. to the Director Karnataka Judicial Academy, to incorporate the above directions in the concerned training programs.
18.3. to the Director-General of Police, State of Karnataka, who in turn is directed to forward it to all Station House officers, Special Juvenile Police Units and all concerned with offences under the POCSO Act in the Police Department. The Director General of Police, State of Karnataka is also directed to get conducted necessary programs to sensitize the police personnel and train them to comply with the above directions. The Director-General of Police, State of Karnataka is also directed to set up a suitable system for monitoring and reporting on the compliance of the above by the concerned police personnel.
18.4. to the Director of Prosecution, State of Karnataka, who is in turn directed to forward the same to all prosecutors in the state with a direction to them to comply with this order.
18.5. to the Member Secretary, Karnataka State Legal Services Authority who in turn is directed to forward it to all District Legal Services Authority Officers and Taluka Legal Services Authority Officers within the State of Karnataka with a further direction to make available legal aid whenever requested, free of cost.
Finally, the Bench then concludes in para 19 by holding that:
Writ Petition stands disposed with above directions.
In short, this cogent, commendable, composed, creditworthy and courageous judgment by Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj of the Karnataka High Court leaves not even iota of doubt making it thus manifestly clear that the interest of the victim in POCSO cases cannot be compromised under any circumstances.
It has issued several commendable directions also in this regard which we have already discussed hereinabove in para 17 which forms the real edifice of this notable judgment. Of course, it thus merits no reiteration that the same must be definitely always implemented in letter and spirit. No doubt, only then will it serve its true purpose for which it was delivered by the Karnataka High Court in this leading case!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
