The Protection of Children from Sexual Offences Act (the POCSO Act) is a special law which was enacted for protection of children from sexual offences and for trial of such offences. In order to protect the interest of the victim and in general social interest, the legislature framed Section 40 of the POCSO Act which postulates the rights of a child to take assistance of a legal practitioner.
Under Section 40 of the POCSO Act, the family or guardian of a child are entitled to the assistance of a legal counsel of their choice for any offence committed under the POCSO Act. The proviso under this Section mandates that if the family or the guardian of a child are unable to afford a legal counsel, the Legal Services Authority would help them provide for one. Just like Section 40 of the POCSO Act, there is a provision of Rule 4 of the Protection of Children from Sexual Offences Rule, 2012 (the POCSO Rules) which provides for the procedure for care and protection of a child. The main object of such provisions is to ensure participation of the victim in the administration of justice.
The Bombay High Court in the case of Arjun Kishanrao Malge v. State of Maharashtra issued directions and guidelines which must be adhered to for effective implementation of the POCSO Act and Rules and to ensure the right of a child victim to participate in the Judicial process is protected.
Issues raised in the case:
The petitioner in the case raised concerns regarding the rights of the children to participate in the trial of offences under the POCSO Act:
- The petitioner prayed for proper implementation and compliance of Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules.
- The petitioner had also contended that there were several cases where the victims, victim’s parents, complainants, support persons were not 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 other parties to participate in the proceedings and be afforded a fair representation in the same.
- It was also contended that non-observance of the above mentioned provisions infringes the fundamental rights of such children guaranteed under Articles 14 and 21 of the Constitution
- Issue directions to all the criminal courts to exercise jurisdiction to secure efficient and effective participation of child victims through their legal representatives at all stages of the judicial process.
Current Position of the Law with respect to rights of a victim to participate in the Judicial process:
On a perusal of the scheme of POCSO Act and POCSO Rules, it is clear that a robust mechanism recognizing the need to protect children from the offences falling within the purview of this legislation and the method and manner to deal judicially such offences, are prescribed as a part of the administration of criminal justice.
It must be pointed out that Article 39A of the Constitution of India casts an obligation upon the State to provide free legal aid, thereby clearly bolstering the need for legal representation of the victim at all stages of the proceedings. The present guidelines issued by the Government of India, Ministry of Women and Child Development recognizes the following rights of the child in respect with the legal proceedings:
- Right to be informed
- Right to be heard and to express views and concerns
- Right to effective assistance
- Right to be protected from hardship during the justice process
- Right to compensation.
The Supreme Court of India in the case of Eera Through Dr.Manjula Krippendorf v. State (NCT of Delhi) had observed that the purpose of bringing in POCSO Act was to secure the best interest of the child pertaining to the offences against them. It was 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.
Fresh Directions and Guidelines issued by the High Court:
The Bombay High Court issued the following directions:-
1. It is the duty of the Special Juvenile Police Unit (SJPU) to intimate the child’s family or guardian or the legal counsel under Rule 4 of the POCSO Rules of the following:-
- If an application is made before the Court on behalf of the prosecution, it should be the duty of the office of the public prosecutor to issue notice of hearing of such application to the child’s family or the guardian.
- The notice of hearing must also be issued to the legal counsel along with all relevant documents and the record necessary for effective participation in the proceedings;
- When an application is made before the Court on behalf of the accused, it must be the duty of the accused to issue notice of hearing of such application to the child’s family or the guardian.
2. When an application is made on behalf of the prosecution, it becomes the duty of the Police Officer to confirm to the relevant Court that service of such application along with all relevant documents and the record necessary for effective participation in the proceedings, and the notice of hearing has been undertaken and completed along with proof of service.
3. In the event, it has not been possible to serve the child’s family, guardian or legal counsel, it will be the duty of the SJPU to inform the reasons in writing to the relevant court.
4. The appropriate Court, before proceeding to hear the application, has to ascertain the status of service of notice, and if it is found that notice has not been issued, the Court can make a 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 child’s family or guardian or legal counsel.
5. In the event despite issuance of notice, the child’s family, guardian or legal counsel, does not attend the hearing, the Court can then proceed further without the presence of such noticee, or issue a fresh notice, as the Court deems fit and proper, considering the interest of justice.
6. When the proceedings under the POCSO Act would also relate to an offence against Sections 376(3), 376-AB, 376-DA or 376-DB of the Indian Penal Code, the notice to the victim must be issued under Section 439(1-A) read with Rule 4(13) and 4(15).
Conclusion:
On a conjoint reading of Section 40 of the POCSO Act read with Rule 4 of the POCSO 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 well being of the child at every stage of the judicial process, to give effect to the mandate of Articles 15 and 39 of the Constitution.
Considering the avowed legislative intent of such provisions, it thus cannot be countenanced, that when it comes to the administration of criminal justice, the stakeholders who are concerned with the investigation of such offences, as also the Special Courts dealing with the proceedings under Act, overlook or not recognize or implement the mandate of provisions under the law.
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