Read Order: Bibi Ayesha Khanum & Ors. vs. Union of India & Ors. 

Pankaj Bajpai

Bengaluru, March 8, 2022: Noticing that the complainants in a POCSO matter went through a harrowing time inasmuch as the accused were granted bail without consideration of any objections of the complainants, the Karnataka High Court has directed that the Investigation officer or the Special Juvenile Police Units (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.

A Division Bench of Chief Justice Ritu Raj Awasthi and Justice Suraj Govindraj further directed that 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.

The observation came pursuant to a PIL, whereby the petitioners were seeking for effective implementation of the Protection of Children from Sexual Offences Act 2012 (POCSO Act) and the Protection of Children from Sexual Offences Rules, 2020 (POCSO Rules) as also the amended provisions of Section 438 and 439 of the Code of Criminal Procedure, 1973.

The grievance of the petitioners was 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. 

After considering the submissions, the High Court noted 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 required that the victims of criminal offences, more particularly heinous offences have a say in the criminal prosecution of the accused, added the Court.

The High Court observed that though the prosecution of such offences rests with the State, who is to act impartially, the prosecution system is overburdened, many a time with 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”, added the Court. 

Accordingly, the High Court directed that 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, added the Court.

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