Welfare of children u/S 40 of the POSCO Act to be a priority for the Special Juvenile Police Unit: Bombay High Court

 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONPUBLIC INTEREST LITIGATION NO.5 OF 2021Arjun Kishanrao Malge....Petitionerversus1. State of Maharashtra2. Director General of Police3. Maharashtra State Commission forProtection of Child Rights.... Respondents…..Mr.Somasekhar Sundaresan with Ms.Saziya Mukadam & Ms.KanchiTrivedi for the Petitioner.Mr.Deepak Thakre Government Pleader & Smt.P.P.Shinde APP for theState.Mr.Wesley Menezes with Mr.Waqar Nasir Pathan Mr.Rajdeep Lahri forRespondent No.3.…..CORAM : DIPANKAR DATTA CJ &G. S. KULKARNI J.RESERVED ON : MARCH 17 2021. PRONOUNCED ON : APRIL 08 2021JUDGEMENT:1.The petitioner who is a social worker working with childvictims of sexual abuse and their families across Mumbai and who isalso performing the role as a support person in child sexual abuse casesin cases before the Child Welfare Committee is before the Court probono publico raising issues in regard to the rights of the children toparticipate in the trial of offences under the Protection of Childrenfrom Sexual Offences Act of the Code of Criminal Procedureand 4(15).These sub rules interalia provide for an obligation interalia on theSpecial Juvenile Police Unitor the local police to keep the childand child’s parents or guardian to be informed about the developments including the arrest of the accused applications filed and other Courtproceedings and the nature of the information to be provided. Theobject of such provision being to ensure participation of the victim inthe administration of justice in POCSO cases. 4.The petitioner also refers to the Criminal Law(Amendment) Act 2018 whereby Section 439 of the Cr.P.C. which dealswith the “Special power of the High Courts or Court of Sessionregarding bail” being amended incorporating sub sectionwitheffect from 21 April 2019 to provide that the presence of the informantor any person authorised by him shall be obligatory at the time ofPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20213 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxhearing of an application for bail of a person accused of havingcommitted an offence under sub sectionof section 376 or section376AB or section 376DA or section 376DB of the Indian Penal Code.These are offences under the Indian Penal Code in relation to thechildren. The petitioner contends that considering the mandate ofSection 40 of the POCSO Act read with Rule 4 of the POCSO Rules theamendment to the provisions of sub sectionof Section 439 of theCr.P.C. are required to be applied mutatis mutandis to the offencesunder the POCSO Act. Such application of these provisions wouldensure a fair representation to the victims of child sexual assault theirfamilies and the public in general. More particularly as Rule 4 of thePOCSO is not restricted to informing the victims complainants aboutthe bail applications moved by the accused but is also applicable toany all the applications moved by the accused before the trial Court.5.The petitioner has contended that although Rule 4 of thePOCSO Rules is ingrained in the Rule book since 2012 the same hasbeen neglected and ignored in practice. It is his contention that theamendment to Section 439 of the Cr.P.C. by incorporating sub section(1A) has also been overlooked by the police and the trial Courts asappropriate steps to inform the victims complainants of the bailapplications moved by the accused which are falling within the purviewPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20214 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxof the POCSO Act the offences in relation to children as specified insub sectionof Section 439 of the Cr.P.C. are not taken. It iscontended that the said amendment to Section 439 cannot beinterpreted to be directory when its purport is mandatory. Insupporting the contention that these provisions are overlooked and ornot implemented the petitioner has placed on record orders which arepassed by the different Sessions Court which clearly show that neitherthe victims or the complainants at any point of time were informed ofthe proceedings nor any notice was served in compliance of Section 40read with Rule 4 of the POCSO Act and Rules or the mandate ofSection 439(1 A) of the Cr.P.C followed.6.The petitioner has contended that there are several suchcases where the victims victim’s parents complainants support personsare not being informed about applications being moved by the accusedpersons despite the fact that the POCSO Act and Rules clearly mandatethe right of the victim and or parents complainants support persons toparticipate in the proceedings and be afforded a fair representation inthe same. The petitioner would urge that such concern was addressedalso by the Delhi High Court when it issued “Practice directions” dated24 September 2019. Being intrigued with the non compliance of suchpractice directions a learned Single Judge of the Delhi High Court inPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20215 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxJeena Jha Vs. Union of India no.50117)passed orders directing that a strict compliance of the PracticeDirections dated 24 September 2019 be ensured. The said order alsorequires District Judges to file a report in the High Court as to whetherthe ‘practice directions’ are being followed and if not the reasons forsuch omission. The High Court also observed that these practicedirections were to mutatis mutandis apply to the offences under thePOCSO Act. The petitioner has also referred to similar directions of theDelhi High Court in Criminal M.C.No.14720.7.On the above conspectus the primary grievance as raisedby the petitioner in these proceedings is in regard to the non compliance of the provisions of Section 40 of the POCSO Act read withRule 4 of the POCSO Rules and of the procedure under Section 439(1 A) of the Cr.P.C by the police and the Courts. It is contended that non observance of these provisions infringes the fundamental rights of suchchildren guaranteed under Articles 14 and 21 of the Constitution. Thepetitioner has accordingly prayed for the following reliefs:“i.Issue directions to all the criminal courts to exercisejurisdiction to secure efficient and effective participation ofchild victims through their legal representatives at allstages of the judicial process ii.Frame Guidelines issue directions to the RespondentNo.1 2 and 3 to ensure strict compliance of Section 40 ofthe POCSO Act read with Rule 4 of the POCSO Rules soPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20216 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxthat the Child Victims of sexual abuse assault arenecessarily protected and their interests safeguarded iii.Declare that Section 40 of the POCSO Act read with Rule 4of the POCSO Rules mandates that the Child Victim Parents or Guardian as the case may be have to beinformed regarding any Application for Bail preferred by asuspected offender accused person iv.Declare Section 40 of the POCSO Act read with Rule 4 ofthe POCSO Rules necessarily require that the LegalRepresentative of the Child Victim Parents or Guardians asthe case may be is heard before releasing the suspectedoffender on Bail v.Frame Guidelines issue directions to the RespondentNo.1 2 and 3 to ensure strict compliance of Section 439of the Cr.P.C. and declare that the provisions practices tobe followed under Section 439of the Cr.P.C. are alsomade mutasis mutandis applicable to offences under thePOCSO Act with respect to the bail applications moved bythe Accused Offender in such cases vi.Direct Respondent No.5 to develop a mechanism to monitorcompliance of Section 40 of the POCSO Act read with Rule4 of the POCSO Rules.”8.A reply affidavit is filed on behalf of the State of Mr.ManojNaval Patil Superintendent of Police. Referring to the provisions ofSection 40 of the POCSO Act and Rule 4(13) and 4(15) of the POCSORules as also the provisions of Section 439 of the Cr.P.C. it is stated thatto sensitize all the Unit Commanders of the said provisions instructionshave been issued to all the Unit Commanders vide Circular dated 6October 2020. It is contended that in this view of the matter thePrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20217 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxpetition ought to be disposed of as adequate steps are being taken onbehalf of the State Government.9.A reply affidavit has been filed on behalf of respondentno.3 Maharashtra State Commission for Protection of Child Rights ofSmt.Rohini Madhukar Lade Assistant Administrative Officer to contendthat respondent no.3 would concur with the petitioner that theentitlement to a legal counsel of the choice of the family or the guardianof the child as conferred by Section 40 of the POCSO Act depicts thestatutory mandate that the child is entitled to be legally represented atall stages of the legal proceedings under the POCSO Act. It iscontended that the said provision is coherent and consistent with thewider scheme of the legislation. It is contended that Article 39A of theConstitution of India casts an obligation upon the State to provide freelegal aid thereby clearly bolstering the need for legal representation ofthe victim at all stages of the proceedings. It is also contended that theguidelines issued by the Government of India Ministry of Women andChild Development also interalia recognizes the rights namely of thechild to be informed right to be heard and to express views andconcerns right to effective assistance right to be protected fromhardship during the justice process right to compensation. In short thePrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20218 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxaffidavit of respondent no.3 supports the contentions as urged by thepetitioner.Discussion and conclusion10.We have heard Mr.Somasekhar Sundaresan learnedCounsel for the petitioner and Mr.Deepak Thakre learned GovernmentPleader alongwith Smt.Shinde learned APP for the State andMr.Wesley Menezes learned Counsel for the respondent no.3. 11.Before we embark upon the discussion it would beimperative for us to note the provisions of Section 40 of the POCSO Act the provisions of Rule 4(13) 4(14) and 4(15) of the POCSO Rules asalso the provisions of Section 439(1 A) of the Cr.P.C. Such provisionsread thus: POSCO Act“40.Right of child to take assistance of legal practitioner Subjectto the proviso to Section 301 of the Code of Criminal Procedure 1973(74) the family or the guardian of the child shall be entitled tothe assistance of a legal counsel of their choice for any offence underthis Act Provide that if the family or the guardian of the child areunable to afford a legal counsel the Legal Service Authority shallprovide a lawyer to them.”POSCO Rules 2020Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 20219 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx“4. Procedure regarding care and protection of child. Where any Special Juvenile Police Unitor the local police receives any information under sub sectionof section19 of the Act from any person including the child the SJPU or local police receiving the report of such information shall forthwith disclose to the person making the report the following details:his or her name and designationthe address and telephone numberthe name designation and contact details of the officer whosupervises the officer receiving the information.(13) It shall be the responsibility of the SJPU or the local police to keep the child and child s parent or guardian or other person in whom the child has trust and confidence and where a support person has been assigned such person informed about the developments including the arrest of the accused applications filed and other court proceedings.(14) SJPU or the local police shall also inform the child and child s parents or guardian or other person in whom the child has trust and confidence about their entitlements and services available to them under the Act or any other law for the time being applicable as per Form A. It shall also complete the Preliminary Assessment Report in Form B within 24 hours of the registration of the First Information Report and submit it to the CWC.(15) The information to be provided by the SJPU local police or support person to the child and child s parents or guardian or other person in whom the child has trust and confidence includes but is notlimited to the following:the availability of public and private emergency and crisis servicesthe procedural steps involved in a criminal prosecutionthe availability of victim s compensation benefitsthe status of the investigation of the crime to the extent it isappropriate to inform the victim and to the extent that it will notinterfere with the investigationthe arrest of a suspected offenderthe filing of charges against a suspected offender Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202110 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx(vii) the schedule of court proceedings that the child is either requiredto attend or is entitled to attendthe bail release or detention status of an offender or suspectedoffenderthe rendering of a verdict after trial and(x) the sentence imposed on an offender.”CODE OF CRIMINAL PROCEDURE“439. Special powers of High Court or Court of Session regarding bail(1) A High Court or Court of Session may direct—(a)that any person accused of an offence and in custody bereleased on bail and if the offence is of the nature specified inSub Sectionof section 437 may impose any conditionwhich it considers necessary for the purposes mentioned inthat Sub Section of section 376 or section 376AB or section376DA or section 376DB of the Indian Penal Code give notice of theapplication for bail to the Public Prosecutor within a period of fifteendays from the date of receipt of the notice of such application.(1A) The presence of the informant or any person authorised byhim shall be obligatory at the time of hearing of the application forbail to the person under sub sectionof section 376 or section376AB or section 376DA or section 376DB of the Indian Penal Code.(2) A High Court or Court of Session may direct that any person whohas been released on bail under this Chapter be arrested and commithim to custody.”Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202111 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx12.The POCSO Act is a special legislation enacted by theParliament with an object to provide a statutory shield to protectchildren from the offences of sexual assault sexual harassment andpornography and provide for establishment of Special Courts for trial ofsuch offences. The scheme of this legislation is clear from the differentChapters and its contents. Chapter II deals with sexual offences againstchildren which are differently categorized and for punishment of suchoffences. Chapter III provides for using child for pornographicpurposes and punishment therefor. Chapter IV deals with abetment andattempt to commit an offence. Chapter V provides for the procedure forreporting of cases. Chapter VI contains the provisions in relation toprocedures for recording statement of the child. Chapter VII providesfor Special Courts to be designated for providing speedy trial foroffences falling under such legislation provisions on presumption as tocertain offences presumption of culpable mental state as alsoapplication of the Cr.P.C. to the proceedings before a Special Court.Chapter VIII provides for the procedure and powers of Special Courtsand recording of evidence. Chapter IX provides for miscellaneousprovisions as to guidelines for child to take assistance of experts etc.(Section 39) right to child to take assistance of legal practitioner(Section 40).Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202112 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx13.On a perusal of the scheme of the said legislation it is clearthat a robust mechanism recognizing the need to protect children fromthe offences falling within the purview of this legislation and themethod and manner to deal judicially such offences is prescribed as apart of the administration of criminal justice.14.Section 40 of the POSCO Act falling under Chapter IXtitled “Miscellaneous Provisions” confers a right upon a child to takeassistance of a legal practitioner. It provides that the family or theguardian of the child shall be entitled to the assistance of a legalcounsel “of their choice” for any offence under this Act and as per theproviso if the family or the guardian of the child are unable to afford alegal counsel “the Legal Services Authority” shall provide a lawyer tothem. From a bare reading of Section 40 it is limpid that it mandatesentitlement interalia conferred on the family or the guardian of thechild of the assistance of legal Counsel of their choice in regard to anyoffences under the Act and if the family or the guardian of the child areunable to afford a legal counsel of their choice it is mandatory and anobligation of the ‘Legal Service Authority’ to provide a lawyer to themfrom its panel. Such mandate of Section 40 is made procedurallyeffective by framing of Rule 4(13) 4(14) and 4(15) of the POSCORules. Sub ruleprovides that it shall be the responsibility of thePrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202113 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxSJPU or the local police to keep the child and child’s parent or guardianetc. informed about the developments including the arrest of theaccused applications filed and other court proceedings. Sub ruleofRule 4 postulates information to be provided by the SJPU local police or support person interalia to the child and child’s parents or guardiansand which includes information as described under Clauseto[(by Act218) with effect from 21 April 2019] stipulating that “thepresence of the informant or any person authorised by him shall beobligatory at the time of hearing of the application for bail to theperson under sub sectionof section 376 or section 376AB or section376DA or section 376DB of the Indian Penal Code." It needs to be notedthat such provisions of the Indian Penal Code referring to sub section(1A) of Section 439 of the Cr.P.C. are in relation to the offences undersub sectionof Section 376 or Section 376AB or Section 376DA orSection 376DB of the IPC which relate to children. We thus findourselves in agreement with the contention of the petitioner that akin tothe offences which fall under the Indian Penal Code as set out in sub sectionof Section 439 of Cr.P.C. with respect to applications forbail under the POCSO Act the presence of the informant or any personauthorised by him shall be made obligatory at the time of hearing of theapplication for bail. This would certainly be in consonance with theobject of Section 40 of the POCSO Act read with Rule 4(13) and 4(15)of the POCSO Rules. To such extent we also find ourselves inagreement with the directions of the Delhi High Court in its orders asnoted above.Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202116 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx18.It would be apposite to refer to the decision of the SupremeCourt in Eera Through Dr.Manjula Krippendorf Vs. Stateand 4(15) of the POCSO Rules recognize a statutoryentitlement to the assistance of and representation by legal counsel forthe family or the guardian of the child and entitlement to be presentand to participate in proceedings in accordance with the said provision.As a necessary corollary there is also an entitlement of such persons tobe made aware of the filing of applications and the hearings scheduledPrashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202118 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docxon such applications at the various stages of the proceedings. We areaccordingly inclined to dispose of the petition with the followingdirections:376 AB 376 DA or 376 DB ofthe Indian Penal Code the notice to the victim shall be issued underSection 439(1 A) read with Rule 4(13) and 4(15).(vii)This order shall be brought to the notice of all the SessionsJudges and Special Court Judges in the State of Maharashtra.Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202120 on 15 04 2021 on 17 04 2.CRPILNo.52021corrected.docx21.A copy of this order be forwarded to the Director Generalof Police the Director of Prosecution State of Maharashtra and theSuperintendent of Police of each of the districts in the State ofMaharashtra so that all the concerned police personnel dealing withsuch offences are appraised of the directions for effectiveimplementation of the POCSO Act and the Rules as noted above. It bealso forwarded to the Member Secretary Maharashtra State LegalServices Authority who shall forward the same to the Secretary of eachDistrict Legal Services Authority within the State.22.Disposed of in the aforesaid terms. No costs.(G. S. KULKARNI J.) (CHIEF JUSTICE)Prashant Rane Judgment is corrected as per speaking to the minutes of the order dt.9 4 202121 

Summary: In light of matter pertaining under the POSCO Act, the Bombay High Court bench in the matter of Arjun Kishanrao Malge Vs The State [CRPIL/5/2021]; comprising a quorum of Dipanka Datta J. and G.S. Kulkarni J. held that the legislative intent behind S. 40 the POSCO Act is to prioritize the welfare of children, be it someone either a victim or even a witness.  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 public, raising issues in regard to the rights of the children to participate in the trial of offences under the POCSO Act. The petitioner raises a concern in regard to the implementation and compliance of Section 40 of the POCSO Act read with Rule 4 of the Protection of Children from Sexual Offences Rule, 2012. The petitioner raises a concern of the oblivity and non-recognition of the provisions of Section 439(1-A) of the Code of Criminal Procedure as inserted by the Act 22 of 2018 with effect from 21 April 2019 in cases under the POCSO Act. The petitioner has contended that there are several such cases where the victims, victim’s parents, complainants, support persons are not being informed about applications being moved by the accused persons despite the fact that the POCSO Act and Rules clearly mandate the right of the victim and/or parents, complainants, support persons to participate in the proceedings The court after a conjoint reading of Section 40 of the POCSO Act read with Rule 4 of the POSCO Rules the legislative mandate is that of complete information to be made available, of all the proceedings and its progress in relation to the offences under the said Act, to the parent or the guardian of the child, with the sole object to safeguard the interest and wellbeing of the child at every stage of the judicial process, to give effect to the mandate of Articles 15 and 39 of the Constitution. On behalf of the petitioner, the court was shown several orders passed by the Courts trying such offences wherein the concerned Courts have completely overlooked the mandate of Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules. The court referred to the decision in Eera Through Dr.Manjula Krippendorf Vs. State (NCT of Delhi) and Anr. {(2017)15 SCC 133} in which the Supreme Court observes that the purpose of bringing such legislation, is to secure the best interest of the child pertaining to the offences against the children. It is held that the interest of the child both as victim as well as witness need to be protected and the stress of the legislation is providing a child-friendly procedure and that the dignity of the child is of immense emphasis, in the scheme of the legislation.