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Synopsis

The Bombay High Court recently observed that child victims under the POCSO Act and their parents have not shown interest in participating in the appeal and sentence suspension proceedings.

“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 order reads.

A single-judge bench of the high court at Nagpur comprising Justice Anil Pansare was hearing an application filed by a POCSO convict under Section 389 of the Code of Criminal Procedure that sought the suspension of his sentence pending appeal before the high court.

While referring to a judgement of the full bench of the high court, Justice Anil Pansare said that the presence of the child through the child’s parents or guardian is not obligatory at any other stage, except at the time of hearing of an application seeking bail under section 439 of the Code.

Justice Pansare said that the purpose of issuance of the notice is to apprise the child’s family or guardian, of the stage of the proceedings, in order to facilitate the child’s family or the guardian to participate in proceedings if so desired.

The high court while referring to the judgement of a division bench of the Calcutta High Court said that the victim is not a necessary party to a criminal appeal from conviction for offences against woman or child, punishable under provisions of the IPC or the POCSO Act.

The Additional Public Prosecutor pointed out to the court that while hearing one of the bail application the coordinate bench of the high court had directed the registry to ensure that in all bail applications in which the provisions of the Protection of Children from Sexual Offences Act is applicable, the victim should be added as a party.

The high court in its order noted that hardship was caused to the victim and the parents since in every appeal and suspension sentence proceedings notices are being issued to them.

“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 order stated.

The bench said that in bail proceedings victim may assist the court with his/her personal sufferance and may include facts that are within the exclusive knowledge of the child.

However, in the application filed under section 389 (suspension of sentence) of the Code, the child/victim will have no role to play because the judgment along with the entire evidence is before the appellate Court. The bench said that the presence of the prosecutor is sufficient to decide the application.

Therefore, the bench clarified that the victim and the parents should be added as a party during the hearing of the bail application but not during the suspension of sentence or appeal proceedings.

Advocate N.S.Giripunje appeared for the appellant.

Additional Public Prosecutor Amit Chutke appeared for the state government. 

Case title: Rohit Bhagat vs State of Maharashtra.