Presence of victims, parents not obligatory in POCSO case appeal proceedings, says Bombay HC
The bench observed that the victims and their parents are put to further suffering as their “entitlement” to participate in the proceedings is converted into “obligation” to do so.
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Justice Pansare noted that experience showed that almost in all cases the child along with parents is brought to the Court. The Nagpur bench of the Bombay High Court observed that the victims of the POCSO Act cases and their parents do not show interest to participate in the court proceedings due to the hardship they face to attend the same by traveling from remote places.
The bench observed that the victims and their parents are put to further suffering as their “entitlement” to participate in the proceedings is converted into “obligation” to do so.
A single-judge bench of Justice Anil L Pansare made observations earlier this month while hearing an application by a convict under section 389 of the Criminal Procedure Code (CrPC) seeking suspension of his sentence pending his appeal before the High Court challenging his conviction.
The special court designated under the Protection of Children from Sexual Offences (POCSO) Act, 2012 had convicted the applicant, prompting him to file the appeal from jail and he made the victim a party to the plea.
“It is obvious that there is some obfuscation in the minds of the advocates, investigating agency and the officials of the Registry that the presence of the child/victim through child’s parents or guardian etc. is obligatory in an appeal u/s 374 (appeals from conviction) of the Code or in an application filed u/s 389 of the Code. The confusion has resulted into further sufferance of hardship of agony to the child/victim and the child’s parents or guardian,” the bench noted.
“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 court added.
Justice Pansare noted that experience showed that almost in all cases the child along with parents is brought to the Court.
The judge went on to observe, “They are required to travel from remote places to attend the Court and thus are put at financial loss as well. Most of them belong to economically weaker sections 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.”
Justice Pansare said 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 judge said that in application relating to bail, the victim may assist the court of his or her personal sufferance if the accused is released on bail.
This may include facts which are within the exclusive knowledge of the victim like threats received by them and the family or other witnesses, the court added.
“However, in the application filed u/s 389 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 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 the child’s family or guardian etc. should serve the purpose and their presence should be left to their wisdom,” the order stated.
Admitting the appeal, Justice Pansare clarified that the victim and parents should be added as party to the hearing of bail plea but not during the plea seeking suspension of sentence or appeal proceedings.
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