# Junaid (In Jail) v. State of U.P. & Ors

- **Citation:** (2021) 7 ILRA 297
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-07-09
- **Case number:** Crl. Misc. Bail Application No. 46998 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/junaid-in-jail-v-state-of-u-p-ors-47089
- **Pages:** 29

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 (IA) -
Indian Penal Code, 1860 - Sections 363,
366 , 376(3), 376, 376 AB, 376 DA,
376DB - Service of notice upon the victims
in bail - Special powers of High Court or
Court of Session regarding bail - The
Protection
of
Children
From
Sexual
Offences Act, 2012 - Sections 16/17 ,
Section 33 (7) , 40,45 - The Protection of
Children From Sexual Offences Rules,
20202 - Rule 4(13), 4(14) ,7, (15) - The
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1995
- Section 3(1)(da), 3(1)(dha) and 3(2)(va)
-
The
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 - Section
27, 30 - Legal Services Authorities Act,
1987 - Section 6, 7, 8, 12 & 13.

(B) Criminal Law - Time for maturation of
a bail application before it is placed in
court has to be definite - Task of the Court
-
to
achieve
the
overarching
and
underlying legislative intent by integrating
the various statutes into an unified legal
framework - rights of child come to
fruition
after
the
authorities(local
police/SJPU,CWC,DLSA & HCLSC ,District
Magistrate)

perform
their
functions
respectively.(Para - 14,58,59)

(C) Criminal Law - Timeline and procedure
for maturation of bail application - court
has to correlate and balance the mandate
of statutory rights of the victim, with the
imperative of constitutional liberties of
the accused - bail maturation process has
to be conducive to implementation of the
POCSO Act, 2012 read with POCSO Rules,
2020 - Where time period for performance
of
statutory
duties
not
provided
-
authorities are obligated to perform the
duties in a reasonable time frame - held -
298 INDIAN LAW REPORTS ALLAHABAD SERIES
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
not accepted.(Para - 66,67,71,83)

First information report lodged against the
applicant - bail application of the applicant
rejected by Additional District and Sessions
Judge/Special Judge - not accused of rape or
abduction - did not blackmail the victim - acts
were committed by the main accused Sajjad -
did not accompany the victim and Sajjad in the
bus - statement of the victim squarely
contradicts the FIR insofar as the involvement of
the applicant is concerned. (Para - 93,94,95)

HELD:- The applicant is entitled to be enlarged
on bail.

Bail application allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,905 of 81,796. This is a partial read: ask again with offset=39905 for what follows._

7 All. Junaid Vs. State of U.P. & Ors.
297

12. As such, in the light of dictum of
aforesaid judgments of the Apex Court as
well as the reasons mentioned in preceding
paragraph No.10, the benefit of parity of
order dated 15.06.2021 of co-accused Ameen
Khan cannot be given to present applicant.
Accordingly, the submission of learned
counsel for the applicant for granting bail on
the ground of parity of order dated
15.06.2021 is rejected.

13. In the opinion of this Court, each
and every case depends on its own facts and a
close similarity between one case and another
is not enough, because even a single
significant detail may alter entire aspect of
the case.

14. In view of above, it would be
appropriate to grant time to opposite party to
file counter affidavit in the matter.

15. Let a counter affidavit be filed
within four weeks. Two week's time is
allowed to the learned counsel for the
applicant to file rejoinder affidavit thereafter.

16. List this case on 05.08.2021 before
the appropriate Bench for hearing of this case
on merits.
----------
(2021)07ILR A297
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Crl. Misc. Bail Application No. 46998 of 2020

Junaid ...Applicant (In Jail)
Versus
State of U.P. & Ors. ...Opposite Parties
Counsel for the Applicant:
Sri Mohammad Mustafa

Counsel for the Opposite Parties:
G.A., Sri Maya Pati Pandey

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 439 (IA) -
Indian Penal Code, 1860 - Sections 363,
366 , 376(3), 376, 376 AB, 376 DA,
376DB - Service of notice upon the victims
in bail - Special powers of High Court or
Court of Session regarding bail - The
Protection
of
Children
From
Sexual
Offences Act, 2012 - Sections 16/17 ,
Section 33 (7) , 40,45 - The Protection of
Children From Sexual Offences Rules,
20202 - Rule 4(13), 4(14) ,7, (15) - The
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1995
- Section 3(1)(da), 3(1)(dha) and 3(2)(va)
-
The
Juvenile
Justice
(Care
and
Protection of Children) Act, 2015 - Section
27, 30 - Legal Services Authorities Act,
1987 - Section 6, 7, 8, 12 & 13.

(B) Criminal Law - Time for maturation of
a bail application before it is placed in
court has to be definite - Task of the Court
-
to
achieve
the
overarching
and
underlying legislative intent by integrating
the various statutes into an unified legal
framework - rights of child come to
fruition
after
the
authorities(local
police/SJPU,CWC,DLSA & HCLSC ,District
Magistrate)

perform
their
functions
respectively.(Para - 14,58,59)

(C) Criminal Law - Timeline and procedure
for maturation of bail application - court
has to correlate and balance the mandate
of statutory rights of the victim, with the
imperative of constitutional liberties of
the accused - bail maturation process has
to be conducive to implementation of the
POCSO Act, 2012 read with POCSO Rules,
2020 - Where time period for performance
of
statutory
duties
not
provided
-
authorities are obligated to perform the
duties in a reasonable time frame - held -
298 INDIAN LAW REPORTS ALLAHABAD SERIES
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
not accepted.(Para - 66,67,71,83)

First information report lodged against the
applicant - bail application of the applicant
rejected by Additional District and Sessions
Judge/Special Judge - not accused of rape or
abduction - did not blackmail the victim - acts
were committed by the main accused Sajjad -
did not accompany the victim and Sajjad in the
bus - statement of the victim squarely
contradicts the FIR insofar as the involvement of
the applicant is concerned. (Para - 93,94,95)

HELD:- The applicant is entitled to be enlarged
on bail.

Bail application allowed. (E-6)

List of Cases cited:

1. Reena Jha Vs U.O.I., 2020 SCC Online Del
1389

2. Miss G (Minor) Thru. Her Mother Vs St. of
NCT Delhi, 2020 SCC Online Del 629

3. Arjun Kishanrao Malge Vs St. of Mah., 2020
SCC Online Del 551

4. Tanul Rastogi Vs St. of U.P., Bail No. 4018 of
2020 ( Allahabad High Court at Lucknow
Bench)

5. Ajeet Chaudhary Vs St. of U.P., (2021) 1 ADJ
559

6. Eera through Dr. Manjula Krippendorf Vs St.
(NCT of Delhi) & anr., (2017) 15 SCC 133

7. Alakh Alok Srivastava Vs U.O.I. & ors., (2018)
17 SCC 291

8. St. of Haryana Vs Raghuvir Dayal, (1995) 1
SCC 132

9. Dilip Kumar Sharma Vs St. of M.P., (1976) 1
SCC 560

10. Nazir Ahmad Vs The King-Emperor, AIR
1936 PC 253(2)

11.
D.R.
Venkatachalam
v.
Transport
Commissioner & ors., (1977) 2 SCC 273

12. St. Vs Sanjeev N&a, 2012 (8) SCC 450

13. Public Interest Foundation Vs U.O.I., 2019
(3) SCC 224

14. St. of A.P. Vs Mangali Yadagiri, ( 2016) CriLJ
1415

15. S. N. Srikantia & Co. Vs U.O.I., AIR 1967
Bom 347

16. Noy Vellesina Engineering SPA Vs Jindal
Drugs Ltd., (2021) 1 SCC 382

17. Tanul Rastogi Vs St. of U.P., Bail No. 4018
of 2020, ( Allahabad High Court at Lucknow
Bench)

18. Regional Provident Fund Commissioner Vs K.
T. Rolling Mills Pvt. Ltd., (1995) 1 SCC 181

(Delivered by 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
7 All. Junaid Vs. State of U.P. & Ors.
299
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:

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.
300 INDIAN LAW REPORTS ALLAHABAD SERIES

(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.
7 All. Junaid Vs. State of U.P. & Ors.
301

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
302 INDIAN LAW REPORTS ALLAHABAD SERIES
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;
7 All. Junaid Vs. State of U.P. & Ors.
303

(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,
304 INDIAN LAW REPORTS ALLAHABAD SERIES
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
section376or
section376ABor
section376DAor
section376DBof 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.
7 All. Junaid Vs. State of U.P. & Ors.
305

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
theArbitration 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').
306 INDIAN LAW REPORTS ALLAHABAD SERIES

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:
7 All. Junaid Vs. State of U.P. & Ors.
307

"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 informantKm. 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
308 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Authorities31 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.
7 All. Junaid Vs. State of U.P. & Ors.
309

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.
310 INDIAN LAW REPORTS ALLAHABAD SERIES

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.