The Nagpur Bench of the Bombay High Court recently ruled that the presence of the child victim and her family in court is not obligatory during appeal proceedings arising from cases under the Protection of Children from Sexual Offences Act (POCSO Act) in the case of Rohit Bhagat v. State of Maharashtra.
During the appellate stage, which occurs after the conclusion of the trial where the accused is either acquitted or convicted, Justice Anil Pansare, a single judge, observed that sub-rule 15 of rule 4 of the POCSO Rules does not mandate the presence of the child and her family or guardian for such proceedings. The court highlighted that the obligation is to inform the child's family or guardian about the stage/status of the proceeding, allowing the child, through their family or guardian, to appear before the court if desired.
The court expressed concern that converting their entitlement to participate in appellate proceedings into an obligation imposes further suffering and hardship, especially for those facing difficulties attending courts from remote locations. The court noted that this often leads to financial loss, particularly for individuals from economically weaker sections who frequently seek legal aid.
However, the court clarified that the mandatory presence of the child victim and her family would be required in cases of bail applications filed by the accused or convicted under Section 439 of the Code of Criminal Procedure (CrPC). The court cited Section 439(1A), which mandates the presence of the informant or an authorized person, potentially including the child or child's family, during the hearing of bail applications related to offences under the Indian Penal Code.
The court referred to a previous case, Arjun Kishanrao Malge vs. State of Maharashtra, to support this stance.
The court made these observations while considering an application by a convict seeking the suspension of his sentence in a POCSO case during the pendency of his appeal before the High Court. The court noted a lack of clarity among lawyers, investigating agencies, and court registries regarding the presence of the victim in appeals arising from convictions or in applications seeking the suspension of sentences. The court emphasized that this confusion contributes to the hardship or agony experienced by the victim and their parents or guardians.
Justice Pansare clarified that the purpose of issuing notice to the victims was to inform them and their family about the stage of proceedings, enabling them to participate if they wished. In cases where the child/victim has no role to play, as the judgment and entire evidence are before the appellate court, the presence of the Prosecutor is deemed sufficient to decide the application for suspension of sentence.
With these considerations, the court directed that the victim and parents should not be added as parties to the application seeking the suspension of sentences but should only be included in applications seeking interim bail.
