In light of matter pertaining under the POSCO Act, the Bombay High Court bench in the matter of Arjun Kishanrao Malge Vs The State [CRPIL/5/2021]; comprising a quorum of Dipanka Datta J. and G.S. Kulkarni J. held that the legislative intent behind S. 40 the POSCO Act is to prioritize the welfare of children, be it someone either a victim or even a witness.
The petitioner who is a social worker, working with child victims of sexual abuse and their families, across Mumbai and who is also performing the role as a support person in child sexual abuse cases in cases before the Child Welfare Committee, is before the Court pro bono public, raising issues in regard to the rights of the children to participate in the trial of offences under the POCSO Act. The petitioner raises a concern in regard to the implementation and compliance of Section 40 of the POCSO Act read with Rule 4 of the Protection of Children from Sexual Offences Rule, 2012. The petitioner raises a concern of the oblivity and non-recognition of the provisions of Section 439(1-A) of the Code of Criminal Procedure as inserted by the Act 22 of 2018 with effect from 21 April 2019 in cases under the POCSO Act.
The petitioner has contended that there are several such cases where the victims, victim’s parents, complainants, support persons are not being 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 parents, complainants, support persons to participate in the proceedings
The court after a conjoint reading of Section 40 of the POCSO Act read with Rule 4 of the POSCO 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 wellbeing of the child at every stage of the judicial process, to give effect to the mandate of Articles 15 and 39 of the Constitution. On behalf of the petitioner, the court was shown several orders passed by the Courts trying such offences wherein the concerned Courts have completely overlooked the mandate of Section 40 of the POCSO Act read with Rule 4 of the POCSO Rules.
The court referred to the decision in Eera Through Dr.Manjula Krippendorf Vs. State (NCT of Delhi) and Anr. {(2017)15 SCC 133} in which the Supreme Court observes that the purpose of bringing such legislation, is to secure the best interest of the child pertaining to the offences against the children. It is 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.
The court held that, “In the event, it has not been possible to serve the child’s family, guardian or legal counsel; it shall be the duty of the SJPU to inform the reasons in writing to the relevant court. The appropriate Court, before proceeding to hear the application, shall ascertain the status of service of notice, and if it is found that notice has not been issued, the Court may make such 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.”
