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Chhattisgarh High Court · body

2021 DIGILAW 160 (CHH)

Dinesh Yadav v. State of Chhattisgarh

2021-05-17

SANJAY K.AGRAWAL

body2021
ORDER : 1. Proceedings of this matter have been taken-up through video conferencing. 2. This is the first bail application filed on behalf of the applicant for grant of bail under Section 439 of the Code of Criminal Procedure, 1973 in connection with Crime No. 212/2019, registered at Police Station Pithoura, District Mahasamund, for the offence punishable under Sections 363, 366, 376(2)(n) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the POCSO Act’). 3. When the matter is taken-up for final hearing, on being asked to learned counsel for the applicant as to whether notice to the victim/informant would be necessary before hearing the application for grant of bail in view of the amendment incorporated in the provision contained in Section 439(1A) of the Cr.P.C. Mr. Sunil Sahu, learned counsel for the applicant, would submit that though the applicant is charged with Section 6 of the POCSO Act, but under Section 439(1A) of the Cr.P.C. offences under the POCSO Act have not been included and even under the provisions of the POCSO Act, there is no such provision like Section 15A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC-ST Act’) i.e. rights of victims and witnesses, therefore, notice to the victim or the complainant or the informant would not be necessary, whereas, Mr. Ghanshyam Patel, learned State counsel, would submit that the High Court of Jammu and Kashmir in the matter of Badri Nath vs. Union Territory of J&K, Bail Application No. 139/2020, decided on 11.12.2020 has held that issuance of notice to the informant in an application for grant of bail to an accused charged under the POCSO Act would be necessary considering the nature and gravity of offence under the POCSO Act. 4. I have heard learned counsel for the parties and considered their rival submissions with regard to notice to victim/complainant/informant in the case where the accused has been charged for the offence under the provisions of the POCSO Act and where the accused has moved application for grant of bail under Section 439 of the Cr.P.C. 5. 4. I have heard learned counsel for the parties and considered their rival submissions with regard to notice to victim/complainant/informant in the case where the accused has been charged for the offence under the provisions of the POCSO Act and where the accused has moved application for grant of bail under Section 439 of the Cr.P.C. 5. In accordance with the Criminal Law (Amendment) Act, 2018 (22 of 2018), Section 439 of the Cr.P.C. has been amended with effect from 21-4-2018 and it was made mandatory for the informant or any person authorised by him to be present at the time of hearing of the application for bail filed by the accused under this provision. Second proviso to Section 439 of the Cr.P.C. was added which states as under:- “Provided further that the High Court or the Court of Session shall, before granting bail to person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.” 6. Similarly, sub-section (1A) of Section 439 of the Cr.P.C. was also inserted by way of amendment with effect from 21-4-2018, which states as under:- “(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860).” 7. A careful perusal of the aforesaid provision - sub-section (1A) of Section 439 of the Cr.P.C. would show that the presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person charged under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the IPC. 8. 8. Section 376(3) of the IPC provides that whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life and shall also be liable to fine. Provisos appended to sub-section (3) of Section 376 are not being noticed as they are not required to adjudicate the issue in hand. 9. Section 15A of the SC-ST Act under Chapter IVA provides rights of victims and witnesses. Sub-Sections (1), (2), (3), (4) and (5) of Section 15A of the SC-ST Act states as under:- “15A. Rights of victims and witnesses: (1) It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence. (2) A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim's age or gender or educational disadvantage or poverty. (3) A victim or his dependent shall have the right to reasonable, accurate, and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act. (4) A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present. (5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.” 10. A careful perusal of the aforesaid provision would show that a victim or his dependent shall be entitled to be heard at any proceeding under the SC-ST Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing. 11. The POCSO Act makes special provision for sexual crime against children. 11. The POCSO Act makes special provision for sexual crime against children. Section 3 of the POCSO Act defines penetrative sexual assault and Section 4 provides punishment for penetrative sexual assault. Section 5 defines aggravated penetrative sexual assault and Section 6 provides punishment for aggravated penetrative sexual assault. Similarly, Section 7 defines sexual assault and Section 8 provides punishment for sexual assault. Section 9 defines aggravated sexual assault and Section 10 provides punishment for aggravated sexual assault. 12. Section 2(d) of the POCSO Act defines “child” which means any person below the age of eighteen years. Though sexual offences against children would be punishable under the provisions of the IPC, they are also punishable under the POCSO Act. By virtue of Section 29 of the POCSO Act, burden or proof is reversed in respect of offence under Sections, 3, 5, 7 and 9 and there is a presumption of commission of offence unless the contrary is proved. In the POCSO Act, Section 42 has been introduced with effect from 3-2-2013 by Act 13 of 2013 providing for alternate punishment stating that where an act or omission constitutes an offence punishable under this Act and also under Sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E or Section 509 of the IPC, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the IPC as provides for punishment which is greater in degree. 13. Though Section 439(1A) of the Cr.P.C. was brought into the statute book with effect from 21-4-2018, offences under the POCSO Act have not been included holding that victim or his dependent shall be entitled to be heard at any proceeding in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing. Similarly, there is no such provision of notice to victim in the POCSO Act before hearing the application for grant of bail under Section 439 of the Cr.P.C. 14. Similarly, there is no such provision of notice to victim in the POCSO Act before hearing the application for grant of bail under Section 439 of the Cr.P.C. 14. However, the Central Government in exercise of the powers conferred by sub-section (1), read with clauses (a) to (d) of sub-section (2), of Section 45 of the POCSO Act, has framed rules known as the Protection of Children from Sexual Offences Rules, 2020 of which sub-rule (15) of Rule 4 is extremely important and which is extracted herein-below: “(15) The information to be provided by the SJPU, local police, or support person, to the child and his parents or guardian or other person in whom the child has trust and confidence, includes but is not limited to the following:- (i) the availability of public and private emergency and crisis services. (ii) the procedural steps involved in a criminal prosecution. (iii) the availability of victims' compensation benefits. (iv) the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation. (v) the arrest of a suspected offender. (vi) the filing of charges against a suspected offender. (vii) the schedule of court proceedings that the child is either required to attend or is entitled to attend. (viii) the bail, release or detention status of an offender or suspected offender. (ix) the rendering of a verdict after trial. (x) the sentence imposed on an offender.” 15. A careful perusal of the aforesaid rule would show that the victim/child and his/her parents or guardian or other person in whom the child has trust and confidence, is entitled for the schedule of court proceedings and also entitled for the bail, release or detention status of an offender or suspected offender as a matter of right and that can be done only if the victim/child or his parents or guardian or other person in whom the child has trust and confidence, though such information has to be provided by the Special Juvenile Police Unit/local police/support person, but in the considered opinion of this Court, the object of the rule above-stated can be achieved competently by giving prior notice by the Court while hearing the application for grant of bail filed by accused, to the child/victim/child’s parents/guardian or other person in whom the child has trust and confidence. 16. 16. Section 39 of the POCSO Act provides guidelines for child to take assistance of experts, etc. which states as under:- “39. Guidelines for child to take assistance of experts, etc. - Subject to such rules as may be made in this behalf, the State Government shall prepare guidelines for use of nongovernmental organisations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist the child.” 17. In exercise of the powers conferred under Section 39 of the POCSO Act, the Ministry of Women and Child Development, Government of India, has issued Model Guidelines of which Guideline 2.2 is relevant to the present context which is reproduced herein-below: “2.2. At Trial: (i) Children have the right to be heard in any judicial and administrative proceedings affecting them. They must be given a reasonable opportunity to express their views all matters affecting him and these must be taken into account. He should also be allowed to provide initial and further information, views or evidence during the proceedings. (ii) Children have the right to information about the case in which they are involved, including information on the progress and outcome of that case, unless the lawyer considers that it would be contrary to the welfare and best interests of the child. It would be best if the lawyer coordinates with other persons or agencies concerned with the child's welfare, such as the support person, so that this information is conveyed in the most effective manner. Victims should receive the most appropriate information on the proceedings from all their representatives, and the assistance of a support person appointed under Rule 4(7) most often constitutes the best practice in ensuring that full information is conveyed to the victim. Such information would include: (a) Charges brought against the accused or, if none, the stay of the proceedings against him. (b) The progress and results of the investigation. (c) The progress of the case. (d) The status of the accused, including his/her bail, temporary release, parole or pardon, escape, absconding from justice or death. (e) The available evidence. (f) The child's role in the proceedings. (g) The child's right to express their views and concerns in relation to the proceedings. (h) The scheduling of the case. (i) All decisions, or, at least those decisions affecting their interests. (e) The available evidence. (f) The child's role in the proceedings. (g) The child's right to express their views and concerns in relation to the proceedings. (h) The scheduling of the case. (i) All decisions, or, at least those decisions affecting their interests. (j) Their right to challenge or appeal decisions and the modalities of such appeal. (k) The status of convicted offenders and the enforcement of their sentence, including their possible release, transfer, escape or death.” 18. A careful perusal of the aforesaid guidelines would show that the victim has been held entitled to receive most appropriate information of the proceedings which would include the status of the accused including his/her bail, temporary release, parole or pardon, escape, absconding from justice or death. As such, the victim is entitled to have full information with regard to hearing an application for grant of bail filed by the accused and children have the right to be heard in any judicial and administrative proceedings affecting them. 19. As such, I am of the considered opinion that since the guidelines issued by the Ministry of Women and Child Development, Government of India under Section 39 of the POCSO Act clearly provide that the victim is entitled for full information with regard to the status of bail application of an accused who is being prosecuted on the report made on his/her behalf. 20. Thus, from the aforesaid discussion, it is quite vivid that by virtue of Section 439(1A) incorporated in the Cr.P.C. with effect from 21-4-2018, the presence of the informant or any person authorised by him is obligatory at the time of hearing of the application for bail to the person accused of offence under Section 376(3) or Section 376AB or Section 376DA or Section 376DB of the IPC. Similarly, by virtue of Section 15A(5) of the SC-ST Act, a victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings, but offences under the POCSO Act are not included either in Section 439(1A) of the Cr.P.C. or there is no such analogous provision in the POCSO Act itself, but sub-rule (15) of Rule 4 of the Protection of Children from Sexual Offences Rules, 2020 enacted under the rule making power of the Central Government and the guidelines issued by the Central Government under Section 39 of the POCSO Act clearly provides that the victim child and his parents or guardian or other person in whom the child has trust and confidence is entitled for information regarding the bail, release or detention status of an offender or suspected offender, and that information has to be provided by the Special Juvenile Police Unit, local police, or support person. Therefore, considering the nature and gravity of offence, though the POCSO Act does not provide for issuance of notice to the victim or his parents or guardian at the time of consideration of bail application of the accused who has been charged for the offence under the POCSO Act also, in my considered opinion, by virtue of sub-rule (15) of Rule 4 of the Rules of 2020 and by virtue of the guidelines issued by the Central Government under Section 39 of the POCSO Act, issuance of prior notice to the victim or his parents or guardian/informant would be absolutely necessary in the ends of justice before hearing the application under Section 439 of the Cr.P.C. as the object of the POCSO Act and the rules can be better achieved by serving prior notice to the victim or any of his/her parents/support person/informant. 21. The Division Bench of the Delhi High Court in the matter of Reena Jha and Another vs. Union of India through its Secretary, Ministry of Law and Justice and Others, 2020 SCC Online Del. 1389 [W.P. (C) No. 5011/2017, decided on 27-1-2020] held that practice directions issued for notice to the informant/victim as per Section 439(1A) of the Cr.P.C. pursuant to amendment in 2018 would also be applicable to the case under the POCSO Act. It was observed as under:- “1. Mr. 1389 [W.P. (C) No. 5011/2017, decided on 27-1-2020] held that practice directions issued for notice to the informant/victim as per Section 439(1A) of the Cr.P.C. pursuant to amendment in 2018 would also be applicable to the case under the POCSO Act. It was observed as under:- “1. Mr. Sidharth Aggarwal, learned counsel appearing for petitioners points-out that Practice Directions dated 24.09.2019 as referred to in order dated 25.11.2019 are based upon amendments to Section 439 Code of Criminal Procedure 1973 (Cr.P.C.) and apply to aggravated forms of sexual offences under Section 376(3), 376-AB, 376-DA and 376-DB of Indian Penal Code 1860 (IPC). The Practice Directions however do not apply to cases under the Protection of Children from Sexual Offences Act (‘POCSO Act’). He further draws attention to Section 40 of POCSO Act read with Rule 4(11) and 4(12)(viii) of the Protection of Children from Sexual Offences Rules, 2012 (‘POCSO Rules). 4. We see merit in the submission made by Mr. Aggarwal. Accordingly, we direct that the provisions of Practice Directions dated 24.09.2019 shall mutatis mutandis also apply to offences under POCSO Act.” 22. Subsequently, the Delhi High Court in the matter of Miss G. (Minor) through her vs. State of NCT of Delhi and Another, 2020 SCC Online Del. 629 [Crl. M.C. No. 1474/2020, decided on 5.6.2020] followed the directions issued in Reena Jha (supra) and held as under:- “18. This Court has heard counsel for the parties, and has perused the records. It is clear from the above-narration, that the amendment to the Cr.P.C. as also the Practice Directions issued by this Court and the two orders passed by the ld. Division Bench brook no ambiguity whatsoever. The victim/complainant/informant has to be heard. This is the mandate of law.” 23. The Jammu and Kashmir High Court in Badri Nath (supra) has taken the view that in case the accused is charged for offence under the POCSO Act, at the time of consideration of bail application of the said accused who has been charged under the provisions of the POCSO Act, notice would be necessary to the victim/complainant/informant. It was observed as under:- “36. It was observed as under:- “36. While Section 439(1-A) incorporated in the Cr.P.C. vide Amendment Act No. 22 of 2018 makes the presence of the informant or any other person authorised by him obligatory at the time of hearing of application for bail to a person accused of offences under Section 376(3) or 376 AB or Section 376DA or Section 376DB of IPC, but the offences under the POCSO Act are not included in the said provision. Thus, notice to informant in an application for grant of bail to an accused involved in offences mentioned in Section 439(1-A) Cr.P.C. is obligatory, but the law does not provide for issuance of notice to the victim of an offence under the POCSO Act at the time of consideration of bail application of the accused which, I think, is needed keeping in view the nature and gravity of offences under the POCSO Act.” 24. As such, I am of the considered opinion that in the instant case, notice to either victim/one of his parents/guardian/informant/support person to whom the child/victim has trust and confidence would be necessary in the ends of justice, once the applicant seeking bail under Section 439 of the Cr.P.C. has been charged for offence under the POCSO Act, even though Section 439(1A) of the Cr.P.C. is not applicable and attracted. 25. Consequently, it is directed that notice of this bail application be issued to either the victim or one of the parents or guardian or informant on the address to be provided by the State counsel and the matter be listed on 23.6.2021 for final hearing on the said application. 26. In view of this order, application for urgent hearing and application for hearing during summer vacation, stand disposed of. 27. Certified copy as per rules.