Pocso victim's counsel must be notified if accused seeks bail: HC

The high court has issued guidelines to be followed whenever a person accused of sexually abusing a minor, files for bail.

A division bench, comprising Chief Justice Ritu Raj Awasthi and Justice Suraj Govindaraj, issued the guidelines while hearing a PIL petition filed by the mothers of children who have been subjected to sexual offences.

The petitioners have asked the court to issue directions for effective implementation of the Protection of Children from Sexual Offences (Pocso), 2012, the Protection of Children from Sexual Offences Rules, 2020, as well as the amended sections 438 and 439 of the Code of Criminal Procedure (CrPC).

The petitioners contended that when the accused moves the bail application, the complainant/caregiver of the minor victim is not informed of the application.

Rohan Kothari, the counsel for the petitioners, submitted that as per section 439 (1) (A) of the Criminal Law Amendment Act, 2018, a court while considering an application for bail, is required to issue notices not only to the state, the de jure complainant but also to the de facto complainants so as to provide them with an opportunity to place their objections. He submitted that the provisions of Section 439 (1) (A), which are applicable to offences under IPC Section 376, are also to be made applicable to offences under the Pocso Act.

The bench stated in the order, "Whenever an accused, who is charged under sections 376 (3), 376-AB, 376-DA or 376-DB of the IPC or the provisions of the Pocso Act, moves an application for bail (be it regular, interim, transit or any other classification), notice shall be issued by the accused to the investigating officer, Special Juvenile Police Unit (SJPU), public prosecutor as also any counsel on record for the victim/complainant/informant."

The guidelines include directions to the investigating officer or the SJPU to inform the victim's parents/caregiver about the bail application about the protection available under the Witness Protection Scheme, 2018, about the legal aid.

The bench has also directed the state police chief to conduct programmes to sensitise police personnel to set up a system for monitoring and reporting on compliance.

The bench also directed the registrar general to forward a copy of the order to all sessions judges and special court judges (Pocso court) and other stakeholders, including police and the prosecution.

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