DATE OF THE ORDER:
April 08, 2021
JUDGES:
Justice G S Kulkarni
PARTIES:
Arjun Kishanrao Malge(Petitioner)
State of Maharashtra &Ors(Respondent)
SUBJECT
The petitioner is a social worker filed a petition raising the issue of non-recognition of section 439(1-A) of Crpc and that police failed to give effect to the mandate of section 40 of the POSCO Act. The court recognizing a statutory right to legal assistance and representation issued various guideline.
OVERVIEW
- The petitioner is a social worker who works with sexual abuse victims and their families in Mumbai and he also acts as a support person in child sexual abuse cases.
- The petitioner raises the following issues-
- The police have failed to give effect to the mandate of Section 40 of the POCSO Act.
- The non-recognition of the provisions of Section 439(1-A) of CrPC
Petitioner’s Prayer
i. Issue directives to all criminal courts to exercise jurisdiction in order to ensure the efficient and effective participation of child victims through their legal representatives at all stages of the judicial process
ii. Issue directions to ensure strict compliance of Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules so that the Child Victims of sexual abuse are protected
iii. Parents or Guardian have to be informed regarding any Application for Bail made by an accused person
iv. Frame Guidelines to ensure strict compliance of Section 439 Crpc and make mutasis mutandis applicable to offences under the POCSO Act with respect to the bail applications
- Maharashtra State Commission for Protection of Child Rights filed an affidavit supporting the contentions as made by the petitioner.
- A reply affidavit filed on the behalf of the state contended that adequate steps are being taken by the state government so the petition should be disposed of.
LEGAL PROVISIONS
- Section 40 of the POCSO Act – Right of child to take the assistance of legal practitioner.
- Section 439 CrPC- Special powers of High Court or Court of Session regarding bail.
- Rule 4 of the POCSO Act- Detailed procedure regarding care and protection
JUDGMENT ANALYSIS
- It was observed that the POCSO Act r/w rules 4(13) and 4(15) recognizes a statutory right to legal assistance and representation.
- The court disposed of the petition with the following directions:
i. The office of the public prosecutor shall issue a notice of hearing to the child’s family, guardian or legal counsel along with all relevant documents and the record necessary for effective participation in the proceedings
ii. The accused shall also issue the notice of hearing to the child’s family, guardian or legal counsel.
iii. When an application is made on behalf of the prosecution, the Police Officer shall confirm to the court that the service of it along with all the documents has been undertaken and completed along with proof of service.
iv. it shall be the duty of the SJPU to inform the child’s family, guardian or legal counsel of the reasons in writing if it has not been possible to serve the notice.
v. The court must ascertain the status of service of notice before the proceedings and if the notice has not been issued, the court may pass an order to secure the ends of justice
vi. If the child’s family, guardian or legal counsel, despite issuance of notice does not attend the hearing the Court may proceed or issue a fresh notice
vii. If the proceeding under the act relates to sections 376(3), 376-AB, 376-DA or 376-DB of the IPC, the notice to the victim shall be issued under Section 439(1-A) r/w rule 4(13) and 4(15).
viii. the Sessions Judges and Special Court Judges must be brought to notice about the order
- A copy of this order shall be forwarded to DGP, State of Maharashtra and the SP of every district.
CONCLUSION
Section 40 of the POCSO Act stipulates that if the child's family or guardian cannot afford legal representation, the legal services authority must provide one. As an "essential corollary," the child's family and legal counsel have the right to be notified about applications that have been filed and hearing dates in pending cases. The guidelines issued by the High Court would not only help in the effective implementation of the POSCO Act but would also protect the right of a child victim to participate in the judicial process.
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