[Practice & Procedure] Del HC | Presence of informant or person authorised obligatory while hearing application for bail to person accused under POCSO Act: Court extends Practice Direction to POCSO offences  

Delhi High Court: A Division Bench of G.S. Sistani and Anup Jairam Bhambhani, JJ., directed that the provisions of the Practice Direction dated 24-9-2019 shall mutatis mutandis also apply to offences under the Protections of Children from Sexual Offences Act, 2012 (POCSO).

The order now passed is to be read in conjunction with the earlier Order dated 25-11-2019 passed in the same petition [Reena Jha v. Union of India, WP (C) 5011 of 2017] wherein the High Court had directed all the Criminal Courts to follow the Practice Direction dated 24-9-2019 which was extracted by the Court in its earlier order:

“PRACTICE DIRECTION

Section 439 of the Code of Criminal Procedure, 1973 stood amended by the Criminal Law (Amendment) Act, 2018 (No. 22 of 2018) w.e.f. 21-4-2018 vide which, amongst others, it has been mandated 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 under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code and that the High Court or the Court of Session shall, before granting bail, give notice of such application to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

The relevant provisions of ‘The Criminal Law (Amendment) Act, 2018’ in this respect are reproduced herein below:-

‘23. In Section 439 of the Code of Criminal Procedure

(a) In sub-section(1), after the first proviso, the following proviso shall be inserted, namely:

Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-Section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB 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.

(b) After sub-section(1), the following sub-section shall be inserted, namely:

(1-A) 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 376-AB or section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860).’

In order to ensure better and effective compliance of the above provisions, Hon’ble the Chief Justice has been pleased to direct as under:-

(a) Before granting bail to a person who is accused of an offence triable under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code, the High Court or the Court of Session shall 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; and

(b) The Courts shall ensure that the Investigating Officer has, in writing as per Annexure A, communicated to the informant or any person authorised by her that her presence is obligatory at the time of hearing of the application for bail to the person under sub-section (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Indian Penal Code. Annexure A shall be filed by the I.O. along with the Reply / Status Report to such bail application and the Courts shall make all endeavour to ensure presence of the informant or any person authorised by her.

These directions shall come into force with immediate effect.”

The earlier Order dated 25-11-2019 was passed on the petitioner’s submission that despite the Delhi High Court Practice Direction dated 24-9-2019 and format provided in Annexure ‘A’ to the Practice Direction being issued, in reality, no information, in compliance with Section 439 CrPC, was being conveyed to the victim or her family members prior to entertaining an application seeking bail for offences triable under Sections 376(3), 376-AB, 376-DA or Section 376-DB IPC.

Presently, the petitioner pointed out before the Court that the Practice Direction dated 24-9-2019 as referred to in earlier order are based upon amendments to Section 439 CrPC and apply to aggravated forms of sexual offences under Sections 376(3), 376-AB, 376-DA and 376-DB IPC. The Practice Direction, however, do not apply to cases under the POCSO Act. Attention was further drawn to Section 40 of POCSO Act read with Rule 4(11) and 4(12)(viii) of the POCSO Rules, 2012.

While submitting that the Practice Direction dated 24-9-2019 or directions to the same effect should also be extended/made applicable to offences under POCSO Act, the petitioner, however, pointed out that an issue in relation to POCSO offences may arise in cases where the crime has been perpetrated by a close family member; in which case, issuing notice or giving information to such family member in line with the Practice Direction, would not serve any purpose. It was suggested that in such cases, notice be issued to the Child Welfare Committee concerned and a copy of such notice/information be also sent to the Delhi State Legal Services Authority (DSLSA).

Seeing merit in the submission made by the petitioner, the High Court directed that the provisions of the Practice Direction dated 24-9-2019 shall mutatis mutandis also apply to offences under the POCSO Act.

It was further directed that the present order, as well as the earlier order, shall be circulated to all District Judges in Delhi, who will be responsible to bring the same to the notice of the Criminal Courts concerned dealing with POCSO matters under their respective jurisdictions and to ensure that the same are implemented.

Direction was also issued to the National Commission for Protection of Children Rights (NCPCR) and State Commission for Protection of Children Rights (SCPCR) to ensure that they comply with the mandate of Rule 6 of POCSO Rules in relation to monitoring and implementation of the provisions of the POCSO Act, strictly and faithfully. [Reena Jha v. Union of India,  2020 SCC OnLine Del 1389, dated 27-01-2020]

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