In a latest, landmark, learned and laudable judgment titled Badri Nath Vs Union Territory of J&K th. Police Station Bari Brahamana in Bail App No. 139/2020, CrlM Nos. 1444/2020 & 1445/2020 delivered as recently as on 11 December 2020, the Jammu and Kashmir High Court has held in no uncertain terms that the minor rape victims are 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. A single Judge Bench of Justice Sanjay Dhar observed thus in view of the guidelines issued by the Union Ministry of Women and Child Development under Section 39 of the POCSO Act. Very rightly so!
To start with, the Bench of Justice Sanjay Dhar of Jammu and Kashmir High Court who authored this judgment sets the ball rolling by first and foremost observing in para 1 that, “Through the medium of instant petition, the petitioner is seeking regular bail in FIR No. 40/2020 for offences under Sections 354-A/452/506 IPC and under Section 8 of POCSO Act registered with Police Station, Bari Brahamana.”
While elaborating on the facts of the case, the Bench then observes in para 2 that, “The facts leading to filing of this petition are that on 25.02.2020, the police of Police Station Bari Brahmana received an order dated 22.02.2020 from the Child Welfare Committee, Samba wherein it was alleged that on 19.02.2020, the victim girl approached a Member of the Child Welfare Committee, Samba from Child line, Jammu and informed her that she was molested by her neighbourer and requested for immediate redressal of her grievance. On the basis of this, the concerned Member of the said Committee constituted a team to contact the child so as to listen to her grievance/complaint. On 22.02.2020, the mother of the victim girl along with the victim appeared before the Child Welfare Committee and she made a statement before the Committee. As per the story narrated by the victim girl to the aforesaid Committee, on 18.02.2020 at about 9 pm, the petitioner herein/ accused, who happens to be the neighbourer of the victim, came to her house and started talking vulgar and irrelevant things to her, while her mother was lying admitted in the hospital and her younger brother was sleeping. The victim further narrated to the aforesaid Committee that the petitioner/accused rubbed his hand on her mouth, pulled her hand, asked her to sit in his lap, touched her private parts and asked her to accompany him to the roof for making love. The victim went on to narrate that she locked herself in a room and from there, she called the son of the petitioner/accused who came over there and she narrated the whole story to him, but she was abused and threatened by the son of the accused. The victim further narrated that since her mother was hospitalised and his father is serving in the Army at Chennai, she got frightened.”
As a corollary, the Bench then discloses in para 3 that, “Upon receiving the order from the aforesaid Committee, the police registered the subject FIR and started investigation of the case. The statement of the victim under Section164 Cr.PC was recorded and after investigation of the case, offences under Sections 354-A/452/506 IPC and 8 of POCSO Act were found established against the petitioner/accused and he was arrested.”
Truth be told, the Bench then observes in para 4 that, “It appears that on account of outbreak of Covid-19 infection, the petitioner was granted interim bail for a period of one month by the learned trial Court in terms of its order dated 30.03.2020 and the same was extended from time to time up to 09.07.2020. On 08.07.2020, the petitioner moved an application for seeking extension of interim bail, but vide its order dated 10.07.2020, the same was declined by the trial Court and he was directed to surrender before the Jail authorities, whereafter the petitioner is stated to have surrendered and is in custody since then. It further appears that the petitioner after filing of charge sheet before the trial Court on 18.07.2020, again moved an application for grant of bail before the trial Court, but the same was dismissed by the trial Court vide its order dated 29.07.2020.”
While stating the petitioner’s case for bail, the Bench then notes in para 5 that, “The petitioner has sought bail on the grounds that the learned trial Court was not justified in rejecting his bail application when he was already on interim bail and there was nothing on record before the trial Court to show that he had misused the concession of bail; that the petitioner is not involved in a case which entails severe punishment as the offence for which he has been booked carries a maximum punishment up to 7 years and, as such, he is entitled to grant of bail, particularly because the investigation of the case is complete and the challan has been presented before the trial Court; that the petitioner would not flee from justice and he would abide by all the terms and conditions that may be imposed by this Court in case he is admitted to bail.”
As against this, the Bench then notes in para 6 that, “The respondent has resisted the bail application by filing objections thereto. In its objections, the respondent has reiterated the allegations made in the charge sheet against the petitioner. It has been contended that the petitioner is involved in a serious offence which he has committed against a child, as such, he does not deserve the concession of bail. It has been further contended that the order of the trial Court rejecting the bail application of the petitioner is based on cogent and sound reasoning, as such, the petitioner is not entitled to bail and that the petitioner has filed successive bail applications without any change of circumstances and, as such, the present application is not maintainable.”
To be clear, the Bench then clarifies in para 7 that, “Before coming to the other aspects of the case, it is necessary to deal with the contention of the prosecution that the instant bail application is not maintainable because the earlier bail application of the petitioner, after filing of the charge sheet, stands rejected by the trial Court and, as such, there is no change of circumstances.”
To put things in perspective, the Bench then observes in para 8 that, “The question that arises for consideration is whether or not successive bail application will lie before this Court. The law on this issue is very clear that if an earlier application was rejected by an inferior court, the superior court can always entertain the successive bail application. In this behalf, I am supported by the ratio laid down by the Supreme Court in the case titled Gurcharan Singh & Ors vs. State (Delhi Administration), AIR 1978 SC 179 which has been followed by the Bombay High Court in the case of Devi Das Raghu Nath Naik v. State,(1987 Crimes Volume 3 page 363). Thus, the rejection of a bail application by Sessions Court does not operate as a bar for the High Court in entertaining a similar application under Section 439 Cr. P. C on the same facts and for the same offence.”
Pertinently enough, the Bench then seeks to observe in para 9 that, “Having held that the instant bail application is maintainable, let us now proceed to deal with the merits of this application. Before proceeding to analyse the rival submissions, it is necessary to restate the settled legal position about the matters to be considered for deciding the application for bail. These are as under:
(i) Whether there is any prima facie or reasonable ground to believe that the accused has committed offence;
(ii) Nature and gravity of the charge;
(iii) Severity of punishment in the event of conviction;
(iv) Danger of the accused absconding or fleeing after release on bail;
(v) Character, behaviour, means, position and standing of the accused;
(vi) Likelihood of the offence being repeated;
(vii) Reasonable apprehension of the witnesses being tampered with and
(viii) Danger of justice being thwarted by grant of bail.”
Truly speaking, the Bench then observes in para 10 that, “When it comes to offences punishable under a special enactment, such as, POCSO Act, something more is required to be kept in mind in view of the special provisions contained in the said enactment. Section 31 of the said Act makes the provisions of the Code of Criminal Procedure applicable to the proceedings before a Special Court and it provides that the provisions of the aforesaid Code including the provisions as to bail and bonds shall apply to the proceedings before a Special Court. It further provides that the Special Court shall be deemed to be a Court of Sessions. Thus, it is clear that the provisions of Cr.P.C including the provisions as to grant of bail are applicable to the proceedings in respect of offences under the POSCO Act. The present application is, therefore, required to be dealt with by this Court in accordance with the provisions contained in Section 439 Cr.P.C. The other provisions of the POCSO Act, which are also required to be kept in mind, are Sections 29 and 30, which read as under:
“29. Presumption as to certain offences – Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and Section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”
30. Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental stage but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this Section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability”.”
For the sake of clarity, the Bench then observes in para 11 that, “Section 29 quoted above raises a presumption of commission of an offence under Sections 3,5,7 and 9 of the POCSO Act against a person who is prosecuted for commission of the said offence, unless contrary is proved. Similarly, Section 30 quoted above raises a presumption with regard to existence of culpable mental state against an accused in prosecution of any offence under the Act which requires a culpable mental state on the part of the accused. Again, the accused in such a case has been given a right to prove the fact that he had no such mental state.”
What next follows is then stated in para 12 that, “The learned trial Court, while rejecting the bail application of the petitioner, has vide its order dated 10.07.2020 relied upon the provisions contained in Section 29 of the POCSO Act to observe that the culpability of offences under the said Act has a presumption attached to it.”
Interestingly enough, the Bench then holds in para 29 that, “It is true that the offence for which the petitioner has been booked carries punishment less than seven years, but that is only one of the considerations for grant of bail. The other considerations like nature of offence, the position of the accused with reference to the victim and the witnesses and the public interest are some of the other considerations which are also required to be taken into account while considering the bail plea of an accused.”
What’s more, the Bench then adds in para 30 that, “In the instant case, there is material on record to prima facie show the involvement of the petitioner in the alleged crime and in view of Section 29 of the POCSO Act and the material collected by the investigating agency during the investigation of the case, the presumption of innocence is no longer available to the petitioner. Having said so, the gravity of the offences is required to be considered in the backdrop of age of the accused and that of the victim as also their position vis-à-vis each other.”
While squarely blaming the petitioner, the Bench then minces no words to observe in para 31 that, “The petitioner is aged about 57 years, whereas the victim is only 12 years of age. The petitioner is the neighbourer of the victim who would treat her as her uncle. There was fiduciary relationship between the petitioner and the victim, who would repose trust and confidence in him being her neighbourer. By indulging in abhorrent behaviour with the child victim, the petitioner has shaken this trust and confidence and brought bad name to the relationship of a child with her neighbourer who is as good as her father. It is not an ordinary offence where an accused has tried to molest a major woman having no acquaintance with her. It is a case where the petitioner has committed sexual assault upon a girl child who is about 1/5th of his age. The gap in age of the petitioner and the victim makes his alleged act more heinous and it shows an element of perversion in the offence alleged. The position of the petitioner qua the victim makes the offence more heinous.”
In addition, the Bench then notes in para 32 that, “Apart from the above, there are other factors which have come to light during the present proceedings. The father of victim is posted somewhere in Chennai and he remains out of his house being employed in Armed Forces. The mother of the victim, who was undergoing treatment at the time when the alleged occurrence took place, has in the meanwhile passed away and the victim child presently resides with her maternal uncle. All these facts have come to light when a notice was issued to the victim in pursuance whereof, Ms. Vidhi Dubey Member, Child welfare Committee, Samba appeared before this Court through video link. She has submitted that the victim is under a state of shock and after the death of her mother, she is wholly dependent upon her maternal uncle.”
Moving on, the Bench then observes in para 33 that, “Having regard to the fact that the petitioner happens to be the next door neighbourer of the victim whose mother has already died and whose father is posted outside the UT of Jammu and Kashmir, exertion of pressure upon the victim by the petitioner so as to coerce her not to depose against him before the trial Court cannot be ruled out. Therefore, granting bail to the petitioner at this stage, at least till the statement of the victim is recorded before the trial Court, would thwart the course of justice.”
As a corollary, the Bench then holds in para 34 that, “For all the foregoing reasons, I do not find it a fit case where petitioner can be enlarged on bail at this stage. The application is, therefore, dismissed.”
Going ahead, the Bench then concedes in para 35 that, “Before parting, I would like to note here that had this Court not issued notice to the victim and the Member of the Child Welfare Committee, Samba, certain facts like the death of mother of victim and the present mental state of the victim would not have come to light. These facts have been found to be of great relevance for consideration of the instant bail application.”
Simply put, the Bench then elucidates in para 36 that, “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 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 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.”
More significantly, the Bench then states in para 37 that, “The Ministry of Women and Child Development, Government of India has, in exercise of powers under Section 39 of POCSO Act, 2012, issued Model Guidelines. Guideline 2.2(ii) is relevant to the context, which is reproduced as under:
“2.2 (i)……………………………………………………………
(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;
(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. (iii)……………………………………………………………(iv)…………………………………………………………… (v)…………………………………………………………… (vi)……………………………………………………………(v)……………………………………………………………(vi)……………………………………………………………(vii)…………………………………………………………”
Most significantly, the Bench then states in para 38 that, “From a perusal of aforesaid guidelines, it is clear that the victims are 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.”
Finally and far most significantly, the Bench of Justice Sanjay Dhar then holds in the last para 39 that, “In order to give a mandatory colour to the aforesaid guidelines, it is necessary to issue a Circular to all the Special Courts constituted under the POCSO Act within the Union Territories of Jammu and Kashmir and Ladakh, directing them to ensure that the victim/Child Welfare Committee is informed about the proceedings in bail petitions of the persons accused of having committed offences under the aforesaid Act by issuing prior notice to them. The Registrar Judicial is directed to place this judgment before Hon’ble the Chief Justice (Acting) with a request to consider the matter regarding issuance of a Circular in the above terms. Disposed of along with connected applications.”
In essence, the core of this notable judgment by the Jammu and Kashmir High Court is that POCSO-victims are entitled to receive information about court proceedings including status of bail of accused. It is the bounden duty of the concerned authorities to ensure that this is complied with accordingly. There should be no pretext whatsoever to deny complying with it.
Sanjeev Sirohi