No Requirement Of Impleading Victim Or Her Guardian/Parents As Party To POCSO Cases But They Have To Be Informed About Proceedings: Rajasthan High Court

The applicant had filed the application against the order of the Special Judge (POCSO Act Cases), Hanumangarh, whereby the bail application filed by the applicant had been rejected.

The Single Bench of Justice Sandeep Shah held, “Thus the question is answered accordingly that while holding that there is no requirement of impleading the child/victim, parents of child, guardian or any other person in whom the child has trust and confidence, as a party to the proceedings, however, there is a mandate of informing them of the pending proceedings including the arrest of accused, applications filed, including the bail application and other Court proceedings. As also the child/victim through parents of child, guardian or any other person in whom the child has trust and confidence and also through the legal counsel, has a right to be heard in all such proceedings pending before the Court concerned, be it trial Court or High Court.”

“Considering the fact that the issue raised has been answered while observing that there is no requirement of impleading the victim or her guardian/parents or person in whom child has trust and confidence as a party to the proceedings…”, it added.

Advocate Nishant Motsara represented the Petitioner while Public Prosecutor Hathi Singh Jodha represented the Respondent.

Issue

The issue raised before the Bench was whether the victim/child or her guardian/parents or person in whom the child has trust and confidence is mandatorily required to be impleaded as a party respondent in cases under the Prevention of Children from Sexual Offences Act, 2012, more particularly in bail applications.

Arguments

It was the applicant’s case that the Division Bench in Pooja Gurjar & Anr. v. State of Rajasthan (2023), while considering the provisions of Section 439 (1A) Cr.P.C. as well as Sections 437 to 439 Cr.P.C. has held that there is no requirement of impleading the victim as a party to the proceedings and emphasized that the victim has a right of audience at every stage of proceedings but there is no requirement of impleading her/him as a party respondent in bail applications under Sections 437, 438 and 439 of Cr.P.C.

The Public Prosecutor, on the other hand, asserted that impleadment of the victim or her guardian/parents as per Rule 4(13) & Rule(15) of the POCSO Rules 2020, is necessary.

Reasoning

Referring to the provisions of the POCSO Act, the Bench noted that Sections 39 and 40 make it mandatory to provide the assistance of a legal counsel of their choice to the family or the guardian of the child, and if the family or the guardian are unable to afford legal counsel, the Legal Service Authorities shall provide a lawyer to them. It was noted that this provision itself mandates that the victim/child has been given a right to participate in the legal proceedings through the counsel.

“A conjoint reading of Sections 39, 40 and Rule 4 of the POCSO Rules clearly specify the legislative intent of providing complete information to the child, his guardian/ or person in whom he deposes trust and confidence about the safeguards available and to ensure that his interest is protected including information about each and every stage of the Court proceedings i.e. from the arrest of the accused, filing of applications including bail applications and entire details uptil the conclusion of the Courts proceedings. Not only this, there is a mandate of providing a lawyer through legal aid in case the child or his family members/ guardians are not in a position to afford one”, it added.

The Bench further explained that as per Sections 39 & 40 of the Act of 2012 as well as Rule 4 of the Rules of the 2020, the parents of child, guardian or any other person in whom the child has trust and confidence has to be informed mandatorily with regard to filing of bail applications and other Court proceedings, be it filed by the prosecution or the accused also. “However, there is no need for impleading the victim of his/her parents/guardian as party to the proceedings. Rather asking them to impleaded would amount to adding something into the provision which the Legislature itself has not provided for and would further be in teeth of the provisions of Sections 23, 33 & 37 of the Act of 2012 as well as Sections 72 and 73 of BNS, 2023 (Section 228-A of Cr.P.C.)”, it added.

The Bench further noted that guidelines are required to be laid down to balance the right of the accused for immediate hearing of the bail applications as well as the right of the victim/child or her guardian/parents or persons whom child has trust and confidence, about setting the information of filing of the bail applications as also the appointment of counsel and providing legal aid to the victim/child or her guardian/parents or persons whom child has trust and confidence.

The Bench thus allowed the application for waiving the defect filed by the counsel for the applicant.

The Bench issued a set of directions, including the following:

• Immediately on filing of any bail application or any other application under the POCSO Act, the counsel for the appellant/applicant/accused shall serve a copy of the bail application along with the requisite papers to the Public Prosecutor, in advance prior to listing of the case.
• The Public Prosecutor, on the other hand, shall immediately send a copy of the same to the Investigating Officer/S.H.O. (Station House Officer) concerned for sending of an information to her guardian/parents of child/victim or persons whom child has trust and confidence and in case they have engaged a counsel, to the legal counsel concerned, inform the fact about filing of the application.
• The S.H.O. concerned shall also supply one copy of the set of paper book to the District Legal Services Authority or to the RALSA to ensure that in compliance with Sections 39 and 40 of the Act of 2012, the family members of the victim are provided with assistance of a legal counsel and in case they are unable to afford legal counsel, the State Legal Service Authorities shall provides them a lawyer.
• In the event, the service cannot be effected or the guardian/ parents of the victim/child or the person in whom the child has trust and confidence cannot be found, a report in this regard shall be made by the concerned Investigating Officer or person authorised by him before submitting the same to the Public Prosecutor.
• The Court concerned shall thereafter ensure that information is sent to the guardian/parents of the victim/child or person in whom the child has trust and confidence, and thereafter proceed to hear the bail matters and other applications.
• In cases where service could not be effected for the reason that the victim, family members, guardians or informant could not be traced, or in cases where the Courts are deciding the interim bail applications, such contingencies can be decided by the Court on case to case basis to secure ends of justice, after recording the reasons for proceeding with the adjudication, awaiting service of notice upon the family members, guardians of the child, etc.

The Bench has also asked the Registry to place the matter before the Chief Justice for issuance of necessary instructions/guidelines/SOP in this regard.

Cause Title: Sandeep v. State Of Rajasthan [Neutral Citation: [2025:RJ-JD:44482]

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