Presence of victim, parents in court not obligatory in POCSO case appeals: Bombay High Court

The Nagpur Bench of the Bombay High Court recently held that presence of child-victim and her family in court is not obligatory in appeal proceedings arising from cases under the Protection of Children from Sexual Offences Act (POCSO Act) [Rohit Bhagat v. State of Maharashtra].The stage of appellate proceedings arise after conclusion of the trial when the accused has either been acquitted or convicted.Single-judge Justice Anil Pansare observed that sub-rule 15 of rule 4 of the POCSO Rules does not make the presence of the child and her family or the guardian obligatory for such proceedings."What is obligatory is to apprise the child’s family or the guardian etc. of child of the stage/status of the proceeding in order to facilitate the child, through family/ guardian etc. to appear before the Court if he/she desires to do so," the Court noted.By converting their entitlement to participate in appellate proceedings into an obligation, they have been put to further suffering and hardship as they face lot of difficulties to attend courts from remote locations"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. None of them, in my tenure so far, have shown interest to participate in the proceedings. Thus, by converting their ‘entitlement to participate’ into ‘obligation to participate’ they have been put to further sufferance and hardship," the Court said.However, the Court clarified that such presence of child-victim and her family would be obligatory in cases of bail applications filed by the accused/ convict under Section 439 of the Code of Criminal Procedure (CrPC). "As could be seen, Section 439(1A) provides that the presence of the informant or any person authorized by him, which may include child or child’s family, shall be obligatory at the time of hearing of the application for bail in respect of the offences under the IPC," the order said. This has also been held by the Bombay High Court in the case of Arjun Kishanrao Malge vs. State of Maharashtra, the single-judge stated..The Court was hearing an application by a convict seeking suspension of his sentence in a POCSO case during the pendency his appeal before the High Court challenging his conviction.The special POCSO court had convicted the applicant prompting him to file an appeal before the High Court. He made the victim a party to the proceeding. The High Court observed that there was lack of clarity among lawyers, investigating agencies and court registries about the presence of the victim in appeals arising from convictions or in applications seeking suspension of sentences. This confusion in turn add to the hardship or agony of the victim and its parents or guardians. “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," the single-judge said. .Justice Pansare explained that the purpose of issuing notice to the victim was to apprise the victim and the family about the stage of proceedings to enable them to participate, if they so desire. "In the application filed for suspension of sentence, the child/victim will have no role to play because the judgment along with 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 court concluded. With these observations, the Court directed that the victim and parents should not be added as parties to the application seeking suspension of sentences, but should be added only in application seeking interim bail. .Advocate NS Giripunje appeared for the appellant. Additional public prosecutor Amit Chutke appeared for the State.[Read order]