Child/Parents/Guardian Not A Necessary Party To Criminal Appeal Against POCSO Conviction: Bombay HC

The Bombay High Court held that the child and child’s parents or guardian is not a necessary party to criminal appeal from conviction for offences under the provisions of the Indian Penal Code, 1860 (IPC) and Protection of Children from Sexual Offences Act, 2012 (POCSO Act).

The Nagpur Bench of the High Court clarified that they are entitled to be apprised of the status of the proceedings which includes appeal.

The Court was dealing with a case in which the question arose regarding Section 40 of the POCSO Act that deals with the assistance of a legal counsel for the family or guardian of the victim child.

A Single Bench of Justice Anil L. Pansare observed, “Put all together, a careful reading of the judgments of the Division Bench of Bombay High Court in Arjun Malge’s case, as also of Calcutta High Court will clearly show that the child and child’s parents or guardian etc. is not a necessary party to criminal appeal from conviction for offences under the provisions of the IPC or the POCSO Act. The child or child’s parents or guardian etc. are, however, entitled to be apprised of the status of the proceedings which includes appeal. The SJPU or local police is therefore duty-bound to apprise the child or child’s parents or guardian etc. of the status of the proceedings in terms of the provisions of the POCSO Act and Rules as also the information in Form “A” referred above.”

The Bench noted that there is some obfuscation in the minds of the Advocates, investigating agency and the officials of the Registry that the presence of the child/victim through child’s parents or guardian etc. is obligatory in an appeal under Section 374 of the Criminal Procedure Code (CrPC) or in an application filed under Section 389 of CrPC.

Advocate N.S. Giripunje appeared on behalf of the appellant while APP Amit Chutke appeared on behalf of the respondents.

In this case, the appellant had made the victim as party respondent no.2 in the Appeal as well as application seeking suspension of sentence. Such practice is followed in all appeals where the accused/appellant is convicted for the offence punishable under the provisions of the POCSO Act. On query as to why the victim was made party respondent no.2, the counsel for the appellant submitted that the victim was made party in terms of the law laid down by the Division Bench of the High Court, in the case of Arjun Kishanrao Malge v. State of Maharashtra; MANU/MH/1024/2021.

With the assistance of the counsel for the parties, the Court had minutely gone through the aforesaid judgment, and found that there was no such direction issued by the Division Bench. The petitioner before the Division Bench was a social worker, working with the child victims of sexual abuse and their families across Mumbai. According to him, in several cases under the POCSO Act, the Courts and the Police had overlooked or failed to give effect to the mandate of Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules. He also raised a concern of the oblivity and non-recognition of the provisions of the provisions of Section 439(1A) of Cr.PC. The Division Bench considered these provisions.

The High Court in the above regard said, “The confusion has resulted into further sufferance of hardship of agony to the child/victim and the child’s parents or guardian. The child/victim of the crime is required to attend the High Court because in every appeal and the application seeking suspension of sentence the notice is being issued to the child/ victim under the misnomer that the victim’s presence in the appeal and the application seeking suspension of sentence is mandatory. The experience shows that almost in all cases the child along with parents is brought to the Court. They are required to travel from remote places to attend the Court and thus are put to financial loss as well. Most of them belong to economically weaker section because in almost all cases, they seek legal aid.”

The Court added by saying that none of them, have shown interest to participate in the proceedings and thus, by converting their ‘entitlement to participate’ into ‘obligation to participate’, they have been put to further sufferance and hardship.”

“The rule/ participation of the child/victim must be understood in the context and stage of the proceedings. In the application relating to bail, the child/victim may assist the Court of his/her personal sufferance if the accused is released on bail, which may include facts which are within the exclusive knowledge of the child/victim viz. threats received by the child/ victim and the family or other witnesses”, further said the Court.

The Court, however, said that in the application filed under Section 389 of the CrPC, the child/victim will have no role to play because the judgment along with the entire evidence is before the appellate court.

“The presence of the Prosecutor is sufficient to decide the application. In such circumstances, the appraisal of the status of the proceedings to the child/victim through child’s family or guardian etc. should serve the purpose and their presence should be left to their wisdom. … The child through child’s parents or guardian etc, however, should be added as party respondent in an application filed u/s 439 of the Code relating to the provisions of the POCSO Act, as also Sections 376(3), 376AB, 376-DA and 376-DB of the Indian Penal Code, in terms of the directions issued by the coordinate Bench of this Court in B.A. No.1355/2021. The presence of child’s parents and not of child is obligatory in terms of directions issued in Arjun Malge’s case. The SJPU or local police shall, therefore, ensure that child should be not instructed to attend the Court”, also held the Court.

The Court concluded that as regards the application under Section 389 of the Code, the notice will have to be issued to the child’s parents or guardian etc. in terms of the directions issued by the Division Bench in the case of Arjun Malge, for the purpose of apprising them of the status of the case but without insisting for their presence in the court.

Accordingly, the High Court admitted the instant appeal and directed the appellant to delete the name of the victim in the appeal as also in the application.

Cause Title- Rohit s/o Chandrakant Bhagat (in jail) v. The State of Maharashtra & another

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