Junaid vs State Of U.P.

And Another on 9 July, 2021

Allahabad High Court

Junaid vs State Of U.P. And Another on 9 July, 2021
Bench: Ajay Bhanot

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Court No.- 32

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46998 of 2020

Applicant :- Junaid

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Mohammad Mustafa

Counsel for Opposite Party :- G.A., Maya Pati Pandey

Hon'ble Ajay Bhanot,J.

1. The judgement is being structured in the following conceptual framework to facilitate the
discussion:

I Introduction II Submissions of learned counsels III Defining the controversy and its origins IV
Rights of an accused in a bail application V Child rights jurisprudence : authorities and principles VI
Relevant provisions from POCSO Act read with POCSO Rules:

A.

Right of victim to receive notice of the bail application and mode of service B.

Applicability of Section 439(IA) Cr.P.C.

.C Case Laws : Discussion D.

Enforcement of rights of the child under POCSO Act r/w POCSO Rules E.

Protecting the identity of the child VII Timeline and procedure for maturation of bail application
VIII Monitoring and implementation of the directions in the judgement IX Order on bail application
X Appendix I. Introduction:

Indian Kanoon - http://indiankanoon.org/doc/181418400/ 1

2. While arguing the bail application Sri Mohd. Mustafa, learned counsel for the applicant submitted
at length that the question of service of notice upon the victim raises legal issues of public
importance. Considering the general importance of the matter, the members of the Bar were invited
to assist the Court.

3. At the request of the Court, Sri Nazrul Islam Jafri, learned Senior Counsel assisted by Sri
Mohammad Zubair, learned counsel, Sri Dharmendra Singhal, learned Senior Counsel assisted by
Sri Shivendra Raj Singhal, learned counsel, Sri Vinay Saran, learned Senior Counsel assisted by Sri
Saumitra Dwivedi, learned counsel, Sri Arun Kumar Singh Deshwal, learned counsel and Sri R.P.S.
Chauhan, learned counsel also made their submissions. The Court expresses gratitude to the learned
members of the Bar for their able assistance and appreciates their selfless service to the cause of law.

4. Shri Ashish Mishra, learned counsel for the High Court has been heard. Affidavit on behalf of the
High Court is taken in the record.

5. The State represented by Shri Manish Goyal, learned Additional Advocate General assisted by
Shri Avinash Kumar Tripathi, learned AGA, has to its credit not adopted an adversarial approach
but that of a stakeholder in this controversy. Though, the acid test lies ahead in the efficacious
implementation of the directions of the Court.

II. Submissions of learned counsels:

6. The following submissions were made by the learned Senior Counsels and learned Counsels at the
Bar:

(i) The practice of issuance of notices to the victim by the courts in bail applications is contrary to
provisions of the Protection of Children From Sexual Offences Act, 20121 read with the Protection of
Children From Sexual Offences Rules, 20202.

(ii) Practice of issuance of the notice of bail application to the victim by the court varies from court
to court. This leads to inconsistencies in procedures, introduces uncertainty in the time frame for
maturation of bail applications, and delays the hearing of bail applications.

(iii) Authorities need adequate time to perform their statutory duties under the POCSO Act, 2012
read with POCSO Rules, 2020 before a bail application becomes ripe for being placed before the
Court. The time period of two days for maturation of a bail under the Rules of Court, 1952 of
Allahabad High Court is insufficient in cases under the said enactment.

(iv) Various authorities need to sync up their functioning and work under a defined time frame to
uphold the rights of victim and to protect the rights of the accused.

(v) Steps have to be taken by all stakeholders to protect the identity of the victim.
(vi) The judgements of the Delhi High Court in Reena Jha Vs. Union of India3 and Miss G (Minor)
Thru. Her Mother Vs. State of NCT Delhi4 and the judgement of Bombay High Court in Arjun
Kishanrao Malge Vs. State of Maharashtra5 are distinguishable in some respects and are not directly
applicable in the State of U.P. The relevant provisions of law were not referred to the Court in Tanul
Rastogi Vs. State of U.P.6 and the order is not a binding precedent.

III. Defining the controversy and its origins

7. Amendments made in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1995 and the Protection of Children From Sexual Offences Act, 2012 read with the Protection of
Children From Sexual Offences Rules, 2020 conferred rights on victims. The changed legislative
perspective towards victims, altered the judicial approach in processing bail applications. The
practice of issuance of notice by courts to victims in bail applications for offences under the said
enactments came into being. The correctness of this practice was in issue in Ajeet Chaudhary vs.
State of U.P.7

8. The instant controversy is similar in some respects to Ajeet Chaudhary (supra). But the distinctive
features of the POCSO Act, 2012 read with POCSO Rules, 2020 require separate consideration.

9. Attention of this Court has been called to the following issues in the submissions made by the
learned members of the Bar:

(a) Whether notice of a bail application for offences under the POCSO Act, 2012 read with POCSO
Rules, 2020 is liable to be issued by the Court to the child and the consequences thereof? Or
whether notice of such bail application is liable to be served upon the child/ authorized person by
the authorities nominated for the purpose and in the manner prescribed in the POCSO Act, 2012
read with POCSO Rules, 2020?

(b) What is a reasonable time line to enable various authorities to discharge their statutory functions
under the POCSO Act, 2012 read with POCSO Rules, 2020 before the bail application becomes ripe
for being placed before the Court?

(c) A decision on the aforesaid issues to resolve the bail conundrum has to ensure that the practices
of the bail processual regime are consistent with the POCSO Act, 2012 read with POCSO Rules,
2020, protect the rights of the both victim and the accused, and define the time frame for placing
the bail application after its maturation before the Court.

IV. Rights of an accused:

10. The constitution makers made fundamental rights of the citizens sacrosanct by writing them into
the text of the Constitution of India. The constitutional courts made fundamental liberties of the
citizens inviolable by evolving tenets of constitutional law.
11. The defence of liberty does not always manifest in a people's movement, a philosopher's prose, a
poet's verse, or a statesman's actions. The challenge to liberty is often less dramatic, and its defence
more mundane.

12. Learned counsels at the bar have raised substantive issues of individual liberty of the accused
and statutory rights of the victim arising from the procedure of bail maturation for offences under
the POCSO Act, 2012 read with POCSO Rules, 2020.

13. Any detention is a restraint on liberty. A detention passes the first test of legality when it is
compliant with the statutory provisions. However, a detention of a citizen satisfies the mandate of
liberty after its validity is tested by the Court. Delay in the reckoning before the Court, degrades the
liberty of the citizen.

14. Time for maturation of a bail application before it is placed in court has to be definite. Upholding
this as a right of a bail applicant in Ajeet Chaudhary (supra), it was further held:

"39. A bail processual framework violates fundamental rights and personal liberties of an accused
guaranteed under Articles 14 and 21 of the Constitution of India in the following situations:

A. Provisions with an unreasonably large time for maturation of a bail application;

B. Procedures where the time period for hearing of a bail application is undefined;

C. Practices causing indefinite deferment of hearing of a bail application.

D. Failure of police authorities to provide timely instructions to the Government Advocate before
the hearing of bail application.

41. Attributes of the processual framework of bails which are in accord with Articles 14 and 21 of the
Constitution of India are these. Bail applications have to be processed expeditiously and placed
before the court for hearing in a reasonable and definite time frame. The procedure for processing
the bail application needs to be consistent, and the time period for hearing of the bail application
has to be certain.

42. The proposition that a bail application cannot be under procedural incubation for an
unreasonable time, is the sequitor of the preceding tenets of constitutional law."

V. Child Rights Legislations

15. The Constitution of India, international instruments, the statutes and judicial precedent
applicable to the current controversy converge on these first principles of child rights jurisprudence.
Recognition of the vulnerability of children to abuse and exploitation, and the incapacity of children
to defend themselves against such offences. Affirmation of the responsibility of the courts and the
state to create a sensitive environment to deal with the victims of such offences, and to protect the
dignity and rights of the child. The POCSO Act, 2012 further enjoins authorities and courts to
respectively provide support services to the child with promptitude and ensure expeditious disposal
of cases.

16. Judgements of the Supreme Court in Eera through Dr. Manjula Krippendorf Vs. State (NCT of
Delhi) and another8, Alakh Alok Srivastava Vs. Union of India and others9 and of Bombay High
Court in Arjun Kishanrao Malge (supra) can be referred to with profit in this context.

VI. Relevant provisions of Protection of Children from Sexual Offences Act, 2012 read with
Protection of Children from Sexual Offences Act, 2020:

VI-A. Rights of victim to receive notice of bail application and the mode of service:

17. The POCSO Act, 2012 (as amended from time to time) was enacted with the object "to protect
children from offences from sexual assault, sexual harassment and pornography and provide for
establishment of Special Courts for speedy trial of such offences and for matters connected
therewith or incidental thereto". The Statement of Objects and Reasons of the POCSO Act, 2012 is
appended as Appendix 1I (see endnote).

18. The Rules framed under Section 45 of the POCSO Act, 2012, for carrying out the purposes of the
Act are called "the Protection of Children from Sexual Offences Rules, 2020.

19. Relevant parts of the statutory scheme shall now be discussed.

20. Rule 4(13), 4(14) and (15) of the POCSO Rules, 2020, cast responsibility upon the local
police/SJPU to provide information about the status of investigations, developments and schedule
of court proceedings and bail applications, and other entitlements and services to the child (In this
judgement "child" shall include child and child's parents/guardian / any other person in whom the
child has confidence/support person). Form A10 ii to be filled by the police officials contains the list
of entitlments of the child and has to be served upon the latter. Form B11III is the preliminary
assessment report to be submitted by the police to the Child Welfare COMMITTEE12. The provisions
are being extracted hereinunder for ease of reference:

"4. Procedure regarding care and protection of child. -

(13) It shall be the responsibility of the SJPU, or the local police to keep the child and child's parent
or guardian or other person in whom the child has trust and confidence, and where a support person
has been assigned, such person, informed about the developments, including the arrest of the
accused, applications filed and other court proceedings.

(emphasis supplied) "4(14). SJPU or the local police shall also inform the child and child's parents
or guardian or other person in whom the child has trust and confidence about their entitlements and
services available to them under the Act or any other law for the time being applicable as per
Form-A. It shall also complete the Preliminary Assessment Report in Form B within 24 hours of the
registration of the First Information Report and submit it to the CWC."

(15) The information to be provided by the SJPU, local police, or support person, to the child and
child's 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 victim's 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;

(emphasis supplied)

(ix) the rendering of a verdict after trial; and

(x) the sentence imposed on an offender.

21. The legislative intent in regard to the said obligations of the local police/SJPU is disclosed from
the phraseology employed by the legislature.

22. A reference may now be made to some judicial precedents containing long settled principles of
statutory interpretation.

23. The word "shall" mostly denotes that the provision is mandatory (see State of Haryana Vs.
Raghuvir DAYAL13).

24. The settled principle of strict construction of criminal statutes was reiterated by the Supreme
Court in Dilip Kumar Sharma Vs State of M.P.14:

"23. It is well settled that such a penal provision must be strictly construed ; that is to say, in the
absence of clear compelling language the provision should not be given a wider interpretation and
no case should be held to fall within which does not come within the reasonable interpretation of the
statute."

25. By reinforcing the word "shall" with the words "be the responsibility of" in Rule 4 (13) and
"shall" in Rule 4(14) of the POCSO RULES,2020 the legislature has created an imperative charter of
duties for the local police/SJPU. Rule 4(13), Rule 4(14) and Rule 4(15) of the POCSO Rules, 2020
are a part of a composite scheme and are mandatory in nature.

26. The said statutory functions are discharged only when the local police/ SJPU serve notice of the
bail application upon the child, intimate the date of hearing and apprise the latter of entitled
information and services. The POCSO Rules, 2020 thus nominate the local police/SJPU as the sole
agency to serve notice and also prescribe the way to do it. Adherence to the statutory agency and
mode of service fructify the rights of the child under the enactment.

27. The judicial proposition which controls the performance of lawful acts, was stated in the
celebrated passage in Nazir Ahmad Vs. The KING-EMPEROR15:

"...where a power is given to do a certain thing in a certain way, the thing must be done in that way
or not at all."

28. This dictum in Nazir Ahmad (supra) has been followed consistently and is an integral part of the
body of judicial precedent. [See: D.R. Venkatachalam v. Transport Commissioner and OTHERS16,
para 17; State Vs. Sanjeev NANDA17 para 17 and Public Interest Foundation Vs. Union of INDIA18
paras 99, 100 and 101]

29. Notice to the victim by the court is not contemplated under the POCSO Act, 2012 read with
POCSO Rules, 2020. Without knowledge of and access to entitled information and services, the
court notice is of no avail to the child. Rights of the child would be undermined if court notice is
deemed sufficient in such facts and circumstances.

30. The statutory mode of service is also conducive to protect the identity of the child, and is
consistent with the requirement of Section 33 (7) of the POCSO Act, 2012.

31. The role of CWC (discussed later) further obviates the need for High Court to issue notices to the
victim.

32. There is merit in the submission that the practice of notice by the court varies from court to
court and introduces uncertainty in the period of maturation of the bail application and delays the
hearing. The process of bail maturation has to be uniform with a definite time line.

VI-B. Applicability of Section 439 (IA) Cr.P.C. to bail applications for offences under the POCSO Act,
2012.

33. Section 439 (IA) Cr.P.C. is reproduced below:

"439 (IA). Special powers of High Court or Court of Session regarding bail.-

"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)."

34. The legislature consciously did not incorporate offences under POCSO Act, 2012 in Section
439(IA) Cr.P.C. Hence the requirement of mandatory presence of persons nominated in Section
439(IA) Cr.P.C., at the hearing of bail application, is confined only to the offences stipulated in the
provision namely Section 376(3), Section 376, Section 376 AB, Section 376 DA, Section 376DB of the
I.P.C. The said persons (nominated in Section 439(IA) Cr.P.C.) may not be obligated to attend but
are certainly entitled to be present at the hearing of the bail application in POCSO Act, 2012
offences.

35. The conclusions are supported by authorities in point. The rule of strict interpretation of
criminal statutes has been referenced earlier. See: Dilip Kumar Sharma (supra). In State of A.P. Vs.
Mangali YADAGIRI19, the Telangana High Court interpreted the scheme of the enactment in light of
Section 42-A of the POCSO Act, 2012 and also held that the POCSO Act, 2012 is a self contained
code:

"18. A perusal of both the enactments would show that POSCO Act is a self contained legislature
which was introduced with a view to protect the children from the offences of sexual assault,
harassment, pornography and other allied offences. It was introduced with number of safeguards to
the children at every stage of the proceedings by incorporating a child friendly procedure.

The legislature introduced the non-obstante clause in Section 42-A of the POSCO Act with effect
from 20.06.2012 giving an overriding effect to the provisions of the POSCO Act, though the
legislature was aware about the existence of non-obstante clause in Section 20 of the SC/ST Act."

36. The restrictive consequences of a self contained code described in enduring words by
Tulzapurkar J. in S. N. Srikantia and Co. Vs. Union of INDIA20, shall apply here:

"12. IN my view, if the Arbitration Act, being both an amending and consolidating Act was intended
to be a self-contained Code and therefore exhaustive fo the law on the subject or on some particular
point (and there could be no dispute that the Act is a self-contained code and exhaustive) a corollary
would follow that it declares the whole of the law upon a particular subject or point and would carry
with it a negative import that it shall not be permissible to do what is not mentioned in it and further
that what is permissible thereunder will be done only in the manner indicated and no other."
(emphasis supplied)

37. The proposition stated in S. N. Srikantia (supra) was followed in Noy Vellesina Engineering SPA
Vs. Jindal Drugs LTD.21 VI-C. Case Laws : Discussion
38. The Delhi High Court promulgated practice directions to implement the mandate of Section
439(IA) Cr.P.C. The aforesaid practice directions were made applicable to bail applications for
offences under the POCSO Act, 2012 in the judgment rendered by the Delhi High Court in Reena
Jha (supra). The judgment is brief and is fully extracted below:

"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 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) &
4(12)(VIII) of the Protection of Children from Sexual Offences Rules, 2012 (''POCSO Rules).

2. It is the submission of counsel for the petitioners that Practice Directions dated 24.09.2019 or
directions to the same effect should also be extended/made applicable to offences under POCSO Act.

3. Counsel points-out however 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 Directions, would not serve any
purpose. Mr. Aggarwal suggests that in such cases notice be issued to the concerned Child Welfare
Committee and a copy of such notice/information be also sent to Delhi State Legal Services
Authority (''DSLSA').

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.

5. We further direct that the present order shall be read in conjunction with order dated 25.11.2019;
and both orders shall be circulated to all District Judges in Delhi, who will be responsible to bring
the same to the notice of the concerned criminal courts dealing with POCSO matters under their
respective jurisdictions and to ensure that the same are implemented.

6. We also direct 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.

7. In view of the above, Mr. Aggarwal submits that no further orders are required to be passed in the
present Public Interest Litigation.

8. Accordingly, the present petition is disposed of, with the court recording its appreciation for the
valuable assistance rendered by Mr. Aggarwal, other learned counsel for the parties and the officials
who appeared in the matter, including Mr. Kanwaljeet Arora, Member Secretary DSLSA and Ms.
Tanushree Luthra, Member Secretary NCPCR."
39. Comprehensive directions to ensure effective compliance of the judgment in Reena Jha (supra)
were issued by the Delhi High Court in Miss G (Minor) Thru Her Mother (supra).

40. The Bombay High Court in Arjun Kishanrao Malge (supra) following the judgments of Delhi
High Court in Reena Jha(supra) and Miss G (supra) emphasized the responsibility of the courts in
matters of offences against children.

41. No such practice directions have been framed by the Allahabad High Court. Further as held
earlier Section 439 (IA) Cr.PC. is not applicable to bail applications for offences under the POCSO
Act, 2012. In light of these distinguishing facts and the preceding discussion Reena Jha (supra),
Miss G (supra) and Arjun Kishanrao Malge(supra), cannot be invoked to support the practice of
issuance of notices by courts to the victims.

42. However, the said judgments are not entirely bereft of precedential value for Allahabad High
Court. The application has to be nuanced. It has to be stated that the said judgments of Delhi High
Court and Bombay High Court enrich legal debate, and elevate the concerns of child rights to the
conscience of the court. The judgments have sensitized the process of law and ameliorated the plight
of child victims by acknowledging the responsibilities of the courts and making the CWC, Legal
Services Authorities and police officials accountable to courts in bail applications. These
recognizable principles of law can be clearly distilled from Reena Jha (supra), Miss G (supra), Arjun
Kishanrao Malge (supra).

43. The order by the learned Single Judge of this Court in Tanul Rastogi Vs. State of U.P.22 needs
consideration:

"I have considered the arguments advanced by the learned counsel for the applicant as well as by the
learned A.G.A.

Section 40 of the POCSO Act provides right to the child to take assistance of legal practitioner.
Section 40 of the POCSO Act reads as under:

"40. Right of child to take assistance of legal practitioner.- Subject to the proviso to section 301 of
the Code of Criminal Procedure, 1973 the family or the guardian of the child shall be entitled to the
assistance of a legal counsel of their choice for any offence under this Act.

Provided that if the family or the guardian of the child are unable to afford a legal counsel, the Legal
Services Authority shall provide a lawyer to them."

Thus, Section 40 of the POCSO Act while giving right of legal assistance to the family or guardian of
the child, also provides that if they are unable to afford a counsel, the Legal Services Authority shall
provide a lawyer to them.

Under Section 45 of the POCSO Act, Protection of Children from Sexual Offences Rules, 2012 WERE
framed, which came into force on 14TH November, 2012. Rule 4 of the Rules provides care and
protection to the victim. Sub-rule (12) of Rule 4 of the Rules provides that the information be
provided by the State Juvenile Police Unit (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. Rule 4(12)(VIII)
provides that the information be also provided to the child/his parents or guardian or other person
in relation to the bail, release or detention status of an offender or suspected offender. Rule 4(12) is
being reproduced as under:

"4. Care and Protection.-

(12) 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-

(viii) the bail, release or detention status of an offender or suspected offender."

Thus, the aforesaid provision clearly provides that the information of bail be given to the
complainant/informant/victim or other person in whom the child has trust and confidence. In such
circumstances, the arguments advanced by the learned counsel for the applicant has no legs to
stand.

Issue notice to the informant-Km. Diksha Rastogi d/o Giri Raj Rastogi r/o 222/44, Raja Bazar,
Chowk, Lucknow, returnable at an early date. Steps be taken within 10 days.

(emphasis supplied) List this case on 06.08.2020.

Station House Officer of the police station concerned shall ensure service of notice on the aforesaid
person."

44. Notices were issued to the victim in Tanul Rastogi (supra) revealing her identity in the teeth of
Section 33(7) of the POCSO Act, 2012. Clearly the learned Single Judge was not referred to all the
relevant provisions of the statute. In such view of the matter the order in Tanul Rastogi (supra) is
not a binding precedent.

VI-D. Enforcement of rights of the child under POCSO Act, 2012 read with POCSO Rules, 2020.
45. POCSO Act, 2012 read with POCSO Rules 2020 vest rights in a child and also provide for means
of realizing them.

46. The persons who shall act as guardians of the child are described in Rule 4(7)23IV.

47. CWC has a prominent role in protecting the best interests of the child. CWC constantly monitors
the well being of the child. In appropriate circumstances it appoints a support person for the child.
Reference may be made in this regard to Rule 4(5), 4(6), 4(8), 4(9), 4(10), 4(11), 4(12) of the POCSO
Rules, 202024V.

48. Sections 19(5) and 19(6) of the POCSO Act, 201225VI read with Rule 4(4) of the POCSO Rules,
2020 cast the duty upon the local police /SJPU to report the offence to the CWC without
unnecessary delay but within 24 hours, and in certain cases to produce the child before the CWC
with a request for a detailed assessment by the latter. While Section 39 enables CWC to requisition
services of EXPERTS26VII.

49. Section 40 of the POCSO Act, 2012 confers upon the child the right of assistance of a legal
practitioner and is extracted below:

"Section 40. Right of child to take assistance of legal practitioner.--Subject to the proviso to section
301 of the Code of Criminal Procedure, 1973 (2 of 1974)THE family or the guardian of the child shall
be entitled to the assistance of a legal counsel of their choice for any offence under this Act: Provided
that if the family or the guardian of the child are unable to afford a legal counsel, the Legal Services
Authority shall provide a lawyer to them."

50. Rule 7 of the POCSO Rules, 2020 provides the procedure and authorities responsible for
providing free legal aid to the child:

"Rule 7. Legal aid and assistance. - (1) The CWC shall make a recommendation to District Legal
Services Authority (hereafter referred to as "DLSA") for legal aid and assistance.

(2) The legal aid and assistance shall be provided to the child in accordance with the provisions of
the Legal Services Authorities Act, 1987 (39 of 1987)."

51. The Juvenile Justice (Care and Protection of Children) Act, 201527 is the next critical link in the
chain of enactments which govern the controversy.

52. Section 27 and Section 30 of the J.J. Act, 2015 detail the creation and functions of the
CWC28VIII.

53. Relevant provisions of the Legal Services Authorities Act, 198729 creating the State Legal
Services Authority30, District Legal Services A UTHORITIES 31 and High Court Legal Services
COMMITTEE32 and in regard to their functions, mandate to coordinate with other agencies to provide
legal aid and criteria for grant of legal aid are stipulated in Section 6, Section 7, Section 8, Section 12
and Section 13. Provisions are appended to the endnote as appendix33ix.

54. C.W.C. has to take steps to effectuate the right to free legal aid vested in the victim in
coordination with other agencies like District Legal Services Authority and High Court Legal
Services Committee.

55. The right to a legal counsel without right of hearing is illusory. The right to be heard by the court
is concomitant to the right to a legal counsel. The scope of this right was described more eloquently
by the Bombay High Court in Arjun Krishnarao (supra):

"20. We are thus of the clear opinion that the POCSO Act read with Rules 4(13) and 4(15) of the
POCSO Rules recognize a statutory entitlement to the assistance of and representation by legal
counsel for the family or the guardian of the child and entitlement to be present and to participate in
proceedings in accordance with the said provision. As a necessary corollary, there is also an
entitlement of such persons to be made aware of the filing of applications and the hearings
scheduled on such applications at the various stages of the proceedings."

56. The rights become effective only when these conditions are satisfied prior to placement of the
bail application before the court: (i) The child is imparted information about entitlements and
services. (ii) The child is able to access relevant services like free legal aid and provided a support
person in eligible cases.

57. Diverse statutes and multiple agencies do not manifest disparate legislative aims.

58. What then is the task of the Court? The task of the Court is to achieve the overarching and
underlying legislative intent by integrating the various statutes into an unified legal framework. This
requires corralling up the assortment of statutory bodies under a single legal umbrella, establishing
synergy in aims, and ensuring concert in action of said authorities.

59. In summation, the rights of child come to fruition after the authorities perform the following
functions respectively:

A. Functions of local police/SJPU:

I. To inform the CWC about the offence within 24 hours of its registration.

II. To serve the notice of bail application upon the child and intimate the date of hearing of the bail
application to it.

III. Apprise the child of its rights to information and services under the POCSO Act, 2012 and
POCSO Rules, 2020 and as detailed in Form A.

IV. Inform the CWC about the need of the child for free legal aid.
V. Produce the child before CWC when required under law. Prepare and submit reports as provided
under the POCSO Act, 2012 read with POCSO Rules, 2020 including one Form A and in Form B to
the CWC.

VI. To provide instructions to the Government Advocate in the High Court and DGC (Criminal) in
the trial courts before hearing of the bail application. These will also include the report of service of
bail application upon the victim, copies of Form B and information given to CWC, and report of
information given to the child regarding entitlements under the POCSO Act, 2012 read with POCSO
Rules, 2020 as detailed in Form A.

B. Functions of CWC:-

I. Receive information and documents from the police and take appropriate action thereupon as
provided in the POCSO Act, 2012 read with POCSO Rules, 2020.

II. To apprise the child of its entitlements under the POCSO Act, 2012 read with POCSO Rules,
2020. Identify the person who would be best suited to protect the interests of the child and receive
notices of the legal proceedings on its behalf from amongst the following persons: child's
parents/guardian/any other person in whom the child has trust and confidence or appoint a support
person for the child whenever required.

III. To prepare reports and coordinate with the police and various government agencies for
providing information and services entitled to the child.

IV. To coordinate with the DLSA and HCLSC to provide free legal aid in appropriate cases to the
child at the District Court and High Court respectively.

V. Disclose to the High Court as well as the trial court the status of entitled information and services
including free legal aid provided to the child and submit relevant reports when the bail application is
placed before the Court.

C. Functions of DLSA and HCLSC-

I. The DLSA and the HCLSC have to provide services of a legal counsel to the victim free of cost,
upon the recommendation of the CWC, in bail proceedings before the District Court and High Court
respectively. The agencies have to coordinate their functioning in this regard.

II. To inform the District Court and High Court respectively about the status of the legal aid
provided to the victim and the requisition of the CWC in this regard, when the bail application is
placed before the court.

D. Functions of District Magistrate:

I. To review the functioning of the CWC on a quarterly basis.

VI-E. Protecting the identity of the child victim & Parties to a bail application:

60. The police and other concerned authorities in the State of Uttar Pradesh, shall ensure strict
compliance of the provisions of Section 33(7) of the POCSO Act, 2012 to protect the identity of the
victim. Section 33(7) of the POCSO Act, 2012 is reproduced below:

"33(7). The Special Court shall ensure that the identity of the child is not disclosed at anytime during
the course of investigation or trial:

Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if
in its opinion such disclosure is in the interest of the child.

Explanation.-For the purposes of this sub-section, the identity of the child shall include the identity
of the child's family, school, relatives, neighbourhood or any other information by which the identity
of the child may be revealed."

61. In terms of Section 33 (7) of the POCSO Act, 2012 the name of the victim/parents/legal
guardians of the victim or her address or any other information which tends to reveal the identity of
the child shall be anonymized. All other steps shall be taken by the police, CWC and all other
concerned authorities to ensure that the identity of the victim is not compromised.

62. CWC and HCLSC shall be joined as necessary parties to all bail applications for offences under
the POCSO Act, 2012. The CWC and HCLSC shall ensure that they are represented by their
respective counsels when the bail application is placed before the court. The DLSA will be a party in
bail application in district courts. Child or her parents or legal guardians shall be impleaded as party
without disclosing their names, and other identifying details like address and so forth.

63. The Director General of Police, the Principal Secretary, Child Welfare Department, Government
of Uttar Pradesh and the L.R., Ministry of Law, Government of U.P. nominate officers who shall
create appropriate procedures in this regard within four weeks.

64. The directions to all concerned police stations/ police officials and Police Heads of the Districts,
CWC, DLSA and HCLSC shall immediately thereafter be issued for strict compliance.

VII. Timeline and procedure for maturation of bail application.

65. The discussion shall now move to the next most critical aspect of the controversy. The process
and time line of the maturation of bail application for being placed before the court.

66. While determining the aforesaid issues, the court has to correlate and balance the mandate of
statutory rights of the victim, with the imperative of constitutional liberties of the accused.

67. The bail maturation process has to be conducive to implementation of the POCSO Act, 2012 read
with POCSO Rules, 2020 and protection of rights of the child under the said enactments. Besides
the process should also secure the rights of the bail applicant.

68. The execution of statutory duties by various authorities (discussed earlier) under the POCSO
Act, 2012 read POCSO Rules, 2020, are prerequisite acts of bail maturation process. Absent
adequate time and opportunity for authorities to discharge the said functions, the implementation
of the POCSO Act, 2012 read with POCSO Rules, 2020, shall be interdicted and rights of the child
will be curtailed.

69. The time frame to perform these statutory duties has not been stated in the statute.
Consequently, the time period for maturation of a bail application remains undefined.

70. The search of the legislature is for certainty. The quest of the courts is for consistency. The
silences of the legislature have to be interpreted by the courts.

71. Where time period for performance of statutory duties is not provided, authorities are obligated
to perform the duties in a reasonable time frame. Faced with a similar absence of specific time
period in a statute to perform the duties, the Supreme Court in Regional Provident Fund
Commissioner Vs. K. T. Rolling Mills Pvt. Ltd.34 held:

"There can be no dispute in law that when a power is conferred by statute without mentioning the
period within which it could be invoked, the same has to be done within reasonable period, as all
powers must be exercised reasonably, and exercise of the same within reasonable period would be a
facet of reasonableness."

72. This Court had directed the State Government to produce a viable time frame to accomplish the
duties cast upon the various authorities by law. The State has filed its response affidavit. This is
supported by the submissions of Sri Manish Goyal, learned Additional Advocate General on behalf
of the State.

73. The response affidavit by the State Government being relevant for creation of reasonable time
frame is extracted hereinunder:

"2. That the aforesaid bail application was taken up by the Hon'ble Court on 01.02.2021 and after
hearing counsel for the parties, the Hon'ble Court while granting bail to the application has directed
the State to file affidavit with regard to:

(i) Time period for determination to be made as to who amongst the child's parents, guardians, or
persons in who the child has trust or support person is most suitable to receive the notice of bail
applications and engage on behalf of the child under the POCSO Act read with the POCSO Rules.
The aforesaid person is also required to be nominated by the Child Welfare Committee for
implementing various provisions of the POCSO Act read with POCSO Rules.

(ii) The likely time period to be taken by the Child Welfare Committee for arranging of legal services
for the child before the (a) district court (b) and the High Court.
3. That in respect of the queries made by the Hon'ble Court in it is stated that vide letter No.
C-354/N IDE .M A .K A ./G O .P RA ./2020-21, dated 05.02.2021 issued by the Directorate of Women
Welfare addressed to the Chairperson of all Child Welfare Committees of State of Uttar Pradesh to
nominate suitable support person of the victim-child involved in POCSO matters for doing suitable
pairvi on their behalf within three days from the date of lodging of F.I.R. and also to ensure that the
child is provided legal assistance at district level within three days by the District Legal Cell
Authority and at the State level by the State Legal Cell Authority within 5 days."

74. Learned counsels at the Bar agree that the time line in the affidavit is reasonable. Shree Manish
Goyal, learned Additional Government Advocate assisted by Shri Ashwani Kumar Tripathi, learned
AGA for the State submits that the time line stated in the affidavit reflects the government policy
and shall be strictly adhered to.

75. Accordingly, the following timeline to execute the different statutory functions by the respective
authorities shall be implemented:

Sr. No. Time period

1. Information of crime to be given by local police/SJPU to CWC (Ref: Section 19(6) of the POCSO
Act 2012).

24 hours after report of crime

2. Time period for CWC for creation of an assessment report and to identify person from amongst
the parents/guardian/person in whom the child has trust or to nominate support person (if
required) who is best suited to protect the best interests of child and receive bail notice on its behalf.

Within 3 days from date of lodgement of the F.I.R.

3. Time period for service of notice of bail application by the local police/SJPU upon CWC.

Within 3 days from the date of service of notice of bail application upon the office of the Government
Advocate at the High Court.

4. Time period for service of notice of bail application by the local police/SJPU upon the child and to
apprise it about information and services entitled under the POCSO Act, 2012 read with POCSO
Rules, 2020.

Within 4 days from date of service of notice of bail application upon office of Government Advocate
at High Court.

5. Time period for CWC and District Legal Services Authority for providing legal aid before the
hearing of the bail application in the District Court. CWC shall also provide details of information
and services entitled to the child under the POCSO Act, 2012 read with POCSO Rules, 2020.
Within 5 days from date of receipt of notice of bail application by CWC

6. Time period for CWC and High Court Legal Services Committee, DLSA for providing legal aid
before hearing of the bail application in the High Court and District Court respectively.

Within 5 days from date of receipt of notice of bail application by CWC

7. Time period for child/child's parents/guardian/any other person in whom the child has trust and
confidence/support person to engage counsel of choice for the hearing of the bail application before
the High Court and the District Court.

Within 5 days from date of service of notice of bail application by local police/SJPU upon the child.

8. Time period for police authorities to provide instructions to the Government Advocate, along with
report of service of bail application upon victim and CWC, report apprising the child of entitled
information and services under the POCSO Act, 2012 read with POCSO Rules, 2020 and other
reports described earlier.

Within 8 days after date of service of notice of bail application upon the office of the Government
Advocate at the High Court. Under all circumstances the same should be provided to the
Government Advocate before the bail application is placed before the Court.

9. Time period for CWC to submit report before the High Court regarding the status of information
and services including legal aid provided to the child.

Report to be produced when bail application is first placed before the Court.

10. Time period for HCLSC and DLSA to inform the High Court and trial court respectively about
the grant of legal aid to the victim and requisition in this regard by CWC.

When the bail application is placed before the court.

11. Time for the Registry to place the bail application before the Court On the 10TH day after service
of notice of bail application upon the office of the Government Advocate at the High Court.

76. The timeline of duties stated above has to be strictly adhered to by the respective authorities.

77. In case application is not filed in time for it to be placed before the High Court, in the above
stipulated time, a further notice of two days shall be given to the Government Advocate as well as
counsel for the victim.

78. The same procedure with necessary adaptions shall be implemented by the trial courts in all
district judgeships in the State of U.P.
79. At this stage, it will be apposite to make reference to the Rules of Court, 1952 providing for the
period of maturation of bail application. The relevant part of Rule 18 of the Rules of Court, 1952 (as
amended on 19.09.2018), is reproduced hereinbelow:

"[(3) Save in exceptional circumstances-

(a) No bail application shall be placed before the Court unless notice thereof has been given to the
Government Advocate and a period of two days has elapsed from the date of such notice.

(b) If the application for bail has not been moved within seven days after the expiry of the aforesaid
period of two days the applicant or his counsel shall give two days previous notice to the
Government Advocate as to the exact date on which such application is intended to be moved.

(c) Where the prayer for bail is contained in a petition of appeal or application for revision, notice
thereof may be given to the Government Advocate the same day prior to the hearing of such petition
or application and the fact of such previous notice having been given, shall be endorsed on such
petition or application. Alongwith such notice a certified copy or one attested to be true by the
counsel, of the Judgment appealed from or sought to be revised shall also be given to the
Government Advocate.] (emphasis supplied)"

80. The Rules of Court, 1952 contemplate an advance notice of two days to the Government
Advocate prior to placement of the bail application before the Court. The notice period is to enable
the Government Advocate to receive appropriate instructions from the police authorities in the case.

81. Clearly as in the case of SC-ST Act, 1989, the said notice period of two days previous notice to the
Government Advocate is insufficient for maturation of a bail application under POCSO Act, 2012
read with POCSO Rules, 2020. This time period has to be enlarged to meet the requirements of
POCSO Act, 2012 read with POCSO Rules, 2020. The same was done in similar circumstances in a
case pertaining to SC/ST Act, 1989 (See: Ajeet Chaudhary).

82. The response affidavit on behalf of Allahabad High Court asserts that the Allahabad High
Court(Amendment) Rules, 2018 reduced the advance notice period in bail applications to two days.
Obviously the Allahabad High Court Rules amended in the year 2018 could not take cognizance of
and factor in the legislative mandate of the POCSO Rules, 2020. Secondly, the affidavit of the
Allahabad High Court does not dispute the fact that two days advance notice period is inadequate
for the authorities to accomplish the aforesaid statutory duties. Thirdly the practice of issuance of
notices to the victim under the POCSO Act, 2012 has been supported on the foot of the ruling of this
Court in Tanul Rastogi (supra), which as the preceding discussion holds is not a binding precedent.

83. In wake of these reasons, the justification of advance notice of two days in bail applications for
offences under the POCSO Act, 2012 as advanced in the response affidavit filed by the High Court is
not accepted.
84. The POCSO Act, 2012 read with POCSO Rules, 2020 is a special legislation. It is open to the
High Court on the administrative side to consider the feasibility of creating specific rules for bail
maturation/time period for advance notice upon the Government Advocate and other necessary
parties for the said enactments, and regarding joinder of parties to the bail applications.

VIII. Monitoring and implementation of the directions in the judgment:

85. In Criminal Misc. Bail application No. 22305 of 2021 (Sanjay @ Mausam Vs. State of U.P.) and
Criminal Misc. Bail Application No. 19839 of 2021 (Sahil Vs. State of U.P.), this Court noted the
consequences of failure of police authorities to furnish timely instructions to the Government
Advocate in bail applications and also registered its concern at the non compliance of the directions
in Ajeet Chaudhary (supra) by the Director General of Police.

86. It is time to administer a caution. Failure to comply with the directions of this Court will thwart
the endeavours to sensitize the legal process and impede the implementation of the legislative
mandate. The misconduct will have to be duly investigated and the delinquent officials have to be
proceeded against departmentally in accordance with law.

87. The police authorities have to create a credible system of oversight and accountability to deter
individual officers from defying orders of the court, acting contrary to law and committing
constitutional violations.

88. Regular monitoring of the implementation of the directions in this judgement is essential.

89. For this purpose the following directions are being issued:

I. The Director General of Police, UP Police/competent officer in the PHQ shall create a framework
and standard operating procedures for the State of U.P. to ensure compliance of the directions and
strict adherence to the timeline of duties stated earlier. The framework shall include nomination of
officials responsible for executing specific tasks with a corresponding time line.

II. The Senior Superintendent of Police/ Deputy Commissioner of Police/Superintendent of Police

(in districts where there is no post of Senior Superintendent of Police) of the concerned district shall
be the nodal officer, who shall supervise the staff charged with the duty of actually serving the bail
notice upon the victim and the CWC, imparting information about entitlements under the POCSO
Act, 2012 read with POCSO Rules, 2020 to the victim, and submitting the assessment (Form B) to
the CWC and to furnish timely instructions to the Government Advocate/District Government
Counsel in bail applications. In case, there is default on part of such official, the S.S.P./ D.C.P/ S.P.
of the concerned district shall take immediate action in accordance with law against such erring
official.

III. The Director General of Police shall create a State Level Committee headed by Officer not below
than the rank of Additional Director General of Police. The aforesaid committee shall prepare
biannual reports which review the working and implementation of the above said directions
throughout the State of U.P., & examine the action taken against the officials who violate the
directions.

IV. The District Magistrate of the concerned district to ensure that the reports as directed in this
order are produced by the CWC before the Court when the bail application is placed in Court.
Appropriate action shall be taken against those who default.

V. Biannual reports shall be prepared by the Principal Secretary/competent authority in the

Ministry of Child Welfare, Government of U.P. regarding compliance of the directions by the CWCs
in State of U.P. and the action taken against erring officials.

VI. Reports under Direction Nos. III and V shall be placed before the High Court Legal Services
Committee; High Court Committee for monitoring the expeditious disposal of rape and Protection of
Children From Sexual Offences Act cases; High Court Committee for monitoring implementation of
the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000, twice in an year.

VII. The Director General of Police, U.P., the Principal Secretary, Child Welfare Committee,
Government of U.P., L.R., Government of U.P. to respectively file compliance affidavits before the
Registrar General, Allahabad High Court, Allahabad on or before 12.09.2021.

VIII. The Registry shall ensure that the child or its parents are not joined as parties to the bail
application by name. It should also be ensured that any other information like address or
neighbourhood which will reveal the identity of the child shall not be stated in the bail application.
The aforesaid details shall be anonymised.

IX. The Registrar General shall ensure compliance of all the directions, related to the Registry of this
Court.

Copy of this order:-

90. The Government Advocate, High Court Allahabad shall forthwith ensure service of copy of this
order on:

1. High Court Legal Services Committee, High Court Allahabad.

2. State Legal Services Authority, Lucknow.

3. L.R./Principal Secretary, Law, Government of U.P. Lucknow.

4. Principal Secretary, Child Welfare, Government of U.P., Lucknow.

5. Director General of Police, U.P Police, Lucknow.

91. Registrar General of this Court to forthwith place this order before the following Hon'ble
Committees:

1. High Court Committee for monitoring the expeditious disposal of rape and Protection of Children
From Sexual Offences Act cases.

2. High Court Committee for monitoring implementation of the provisions of Juvenile Justice (Care
and Protection of Children) Act, 2000.

3. High Court Legal Services Committee.

IX. Order on bail application:

92. Heard Shri Mohammad Mustafa, learned counsel for the applicant and learned AGA for the
State.

93. A first information report was lodged against the applicant as Case Crime No. 158 of 2020, at
Police Station- Itwa, District- Siddharth Nagar on 26.08.2020 under Sections- 363, 366 IPC, and
Section 3(1)(DA), 3(1)(DHA) and 3(2)(VA) of SC/ST Act (subsequently also under Sections 16/17
POCSO Act).

94. The bail application of the applicant was rejected by learned Additional District and Sessions
Judge/Special Judge (POCSO Act), Siddharth Nagar, on 14.10.2020.

95. Sri Mohammad Mustafa, learned counsel for the applicant contends that the applicant is not
accused of rape or abduction. The applicant did not blackmail the victim. These acts were
committed by the main accused Sajjad. The applicant also did not accompany the victim and Sajjad
in the bus. The statement of the victim squarely contradicts the FIR insofar as the involvement of
the application is concerned. Lastly it is submitted by learned counsel for applicant that the
applicant shall not abscond, and will fully cooperate in the criminal law proceedings. The applicant
shall not tamper with the evidence nor influence the witnesses in any manner.

96. Learned A.G.A and Shri Maya Pati Pandey, learned counsel for the complainant could not
satisfactorily dispute the aforesaid submissions from the record.

97. I see merit in the submissions of Shri Mohd. Mustafa, learned counsel for the applicant and
accordingly hold that the applicant is entitled to be enlarged on bail.

98. In light of the preceding discussion and without making any observations on the merits of the
case, the bail application is allowed.

99. Let the applicant Junaid be enlarged on bail in Case Crime No. 158 of 2020, under Sections-
363, 366, 368 IPC, and Sections 16/17 POCSO Act and Section 3(2)(V) of SC/ST Act, Police Station-
Itwa, District- Siddharth Nagar, on furnishing a personal bond and two sureties each in the like
amount to the satisfaction of the court concerned subject to following conditions.

i. The applicant will not tamper with the evidence during the trial.

ii. The applicant will not influence the prosecution witness.

iii. The applicant will appear before the trial court on the date fixed, unless personal presence is
exempted.

iv. The applicant shall not directly or indirectly make any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
Court to any police officer or tamper with the evidence.

100. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail
cancellation application before this Court.

101. The party shall file computer generated copy of this order downloaded from the official website
of High Court, Allahabad. The concerned Court/ Authority/ Official shall verify the authenticity of
such computerized copy of the order from the official website of High Court Allahabad and shall
make a declaration of such verification in writing.

Order Date :- 09.07.2021 Dhananjai Sharma