# Rohit v. State of U.P. & Anr

- **Citation:** (2021) 8 ILRA 436
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-06
- **Case number:** Bail No. 8227 of 2021
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohit-v-state-of-u-p-anr-47221
- **Pages:** 6

## Headnote

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 363, 366 & 376 -
The Code of criminal procedure, 1973 -
Section 439(1-A) - Protection of Children
from Sexual Offences Act, 2012 - Section
2(1)(d) , 3 /4 , 33(7) , 40 - Right of child
to take assistance of experts, etc.- The
Protection
of
Children
from
Sexual
Offences Rules, 2020 - Rules 4(13) &
4(15) - Procedure regarding care and
protection of child - A proper and effective
legal assistance can be given to a person
only when such a person is made aware of
the pending proceedings - If the person is
not made aware of the proceedings, no
legal assistance can be given to him - it is
the duty of the SJPU or local police to
keep
the
child
and
his/her
parent/guardian or other person in whom
the
child
has
trust
and
confidence,
informed
about
the
developments
including the arrest of the accused,
applications
filed
and
other
Court
proceedings. (Para - 10,12)

(B) Protection of Children from Sexual
Offences Act, 2012 - Section 40 - family or
guardian of the child is entitled to
assistance of a legal counsel of their
choice - if they are unable to afford a legal
counsel, the Legal Services Authority is
duty
bound
to
provide
a
legal
counsel.(Para - 20)

Applicant impleaded complainant as opposite
party no.2 - Registry while reporting raised an
objection - applicant deleted the name of the
complainant as opposite party no.2 - questions
before Court - (i) whether the complainant or
any person on behalf the child victim is to be
made a party to the proceedings (ii) what
should be the mode of service upon such a
person, as the Court is required to ensure that
the identity of the child victim is not disclosed at
any time during the course of investigation or
trial. (Para -3)

HELD:- The applicant is permitted to implead
the complainant as opposite party no.2. (Para -
24)

Issue notice to opposite party no.2 . (E-6)

## Text

436 INDIAN LAW REPORTS ALLAHABAD SERIES
spending the money but when money is
obtained by corrupt means, such person
may not have any problem spending. A
criminal of economic offences has larger
amount of proceed of crime, he may use it
and affect the investigation and win over
witnesses. In Himanshu Chandravadan
Desai v. State of Gujrat - AIR 2006 SC
170 the appellant - accused was one of
Directors of a Bank and together with other
Directors and Managing Director of Bank
siphoned off crores and crores rupees fund
of the Bank by bogus loans and fictitious
letters of credit in the name of their friends,
relatives,
associates
and
name-lender
companies either without any securities or
with wholly inadequate security. The Court
of Session and the High Court rejected bail
and then the appellant-accused moved the
Hon'ble Supreme Court. The accused was
remaining in custody for longer period
since his surrender on 24.10.2002. The
Hon'ble Supreme Court decided that having
regard to huge amounts involved in the
systematic fraud, there is danger of the
appellants absconding, if released on bail,
or attempting to tamper with the evidences
by pressurizing witnesses. The Hon'ble
Supreme Court refused to grant bail. In
socioeconomic offences always the court
considers monetary position of the accused
and amount involved in criminal case.
More the accused is economically sound
and more the amount involved in criminal
case; it cause more the chance of affecting
the requirements of criminal justice, more
the accused is unfit for bail, thereby, more
the chance of refusal to grant bail.

42. In socio-economic offences proceed
of crimes are larger and further, offenders are
economically sound, therefore, in releasing
them on bail/anticipatory bail probability of
abscondance not within country but beyond
country is more probable. Usually socioeconomic offenders abscond to some other
country and after that it becomes difficult to
bring them back and complete the criminal
proceeding against them. Further, their
monetary
sound
condition
particularly
proceed of crime obtained not by honest
working but by deceiving others causes more
prone situation for influencing witnesses and
other evidences. Furthermore, status and
position of offender provides opportunity to
influence investigation and prosecution.

43.

For
the
discussions
made
hereinabove and keeping in view the
principles settled by the Hon'ble Supreme
Court, this Court finds no merit in the
application under Section 438 Cr.P.C. filed
by the applicant. Consequently, the instant
anticipatory bail application is rejected.

44. It is made clear that observations
made
hereinabove
are
exclusively
for
deciding
the
instant
anticipatory
bail
application and shall not affect the trial in any
manner.

45. I may put on record an appreciation
for my law clerk Mr. Keshav Dwivedi, who
has assisted me in my research to enable me
to decide the matter with promptness.
----------
(2021)08ILR A436
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.08.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

 Bail No. 8227 of 2021

Rohit ...Applicant
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
8 All. Rohit Vs. State of U.P. & Anr.
437
Sri Piyush Kumar Singh

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 363, 366 & 376 -
The Code of criminal procedure, 1973 -
Section 439(1-A) - Protection of Children
from Sexual Offences Act, 2012 - Section
2(1)(d) , 3 /4 , 33(7) , 40 - Right of child
to take assistance of experts, etc.- The
Protection
of
Children
from
Sexual
Offences Rules, 2020 - Rules 4(13) &
4(15) - Procedure regarding care and
protection of child - A proper and effective
legal assistance can be given to a person
only when such a person is made aware of
the pending proceedings - If the person is
not made aware of the proceedings, no
legal assistance can be given to him - it is
the duty of the SJPU or local police to
keep
the
child
and
his/her
parent/guardian or other person in whom
the
child
has
trust
and
confidence,
informed
about
the
developments
including the arrest of the accused,
applications
filed
and
other
Court
proceedings. (Para - 10,12)

(B) Protection of Children from Sexual
Offences Act, 2012 - Section 40 - family or
guardian of the child is entitled to
assistance of a legal counsel of their
choice - if they are unable to afford a legal
counsel, the Legal Services Authority is
duty
bound
to
provide
a
legal
counsel.(Para - 20)

Applicant impleaded complainant as opposite
party no.2 - Registry while reporting raised an
objection - applicant deleted the name of the
complainant as opposite party no.2 - questions
before Court - (i) whether the complainant or
any person on behalf the child victim is to be
made a party to the proceedings (ii) what
should be the mode of service upon such a
person, as the Court is required to ensure that
the identity of the child victim is not disclosed at
any time during the course of investigation or
trial. (Para -3)

HELD:- The applicant is permitted to implead
the complainant as opposite party no.2. (Para -
24)

Issue notice to opposite party no.2 . (E-6)

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Heard learned counsel for the
applicant Sri Piyush Kumar Singh, Sri
Anurag Verma, Sri Jayant Singh Tomar
and Sri Shaunak Singh learned AGA for
the State and Sri Rahul Kumar Singh as
amicus curiae, who has also assisted the
Court by placing relevant laws before the
Court.

2. The present bail application is filed
by the accused-applicant-Rohit, who is
involved in F.I.R./Case Crime No.0091 of
2021, under Sections 363, 366 and 376
I.P.C. and Sections 3 /4 of Protection of
Children from Sexual Offences Act, 2012
(POCSO Act), Police Station-Achalganj,
District-Unnao.

3. In this bail application, the
applicant had initially impleaded the
complainant by name as opposite party
no.2. The Registry while reporting raised
an objection that the complainant is made a
party and, thus, learned counsel for the
applicant
deleted
the
name
of
the
complainant
as
opposite
party
no.2.
Therefore, two questions arose before the
Court for consideration; (i) whether the
complainant or any person on behalf the
child victim is to be made a party to the
proceedings; and (ii) if any such person is
to be made opposite party in the bail
application, what should be the mode of
service upon such a person, as the Court is
required to ensure that the identity of the
child victim is not disclosed at any time
during the course of investigation or trial.
438 INDIAN LAW REPORTS ALLAHABAD SERIES

4. With regard to the first question,
whether the complainant or any other
person on behalf of the child victim is
required to be heard in the bail application
is concerned, so far as a child up to the age
of 16 years is concerned, suffice would be
to refer to Section 439(1-A) of the Criminal
Procedure Code, 1973 (Cr.P.C.). The
aforesaid Section 439(1-A) of Cr.P.C. is
incorporated by amendment made by Act
No.22 of 2018 w.e.f. 21.4.2018. It reads:

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

(1-A)
The
presence
of
the
informant or any person authorised by him
shall be obligatory at the time of hearing
of the application for bail to the person
under sub-section (3) of Section 376 or
Section 376-AB or Section 376-DA or
Section 376-DB of the Indian Penal Code
(45 of 1860)."

5. Sections 376(3), 376-AB, 376-DA
and 376-DB of I.P.C. refer to sexual offences
against a child below the age of 16 years and
12 years. Thus, as per sub-section (1-A) of
Section 439 of Cr.P.C., the presence of the
informant or any person authorized by him is
mandatory at the time of hearing of the bail
application with regard to sexual offences.
Thus, in all such cases, it is incumbent upon
the Court to ensure service of notice of bail
application upon the informant.

6. A question still arises, that, as to
whether under the POCSO Act, with regard
to sexual offences against the child up to the
age of 18 years, any person on behalf of the
child victim is required to be given an
opportunity to oppose the bail application.
Section 2(1)(d) of the POCSO Act defines a
child as ''a person below the age of 18 years'.

7. Section 40 of the POCSO Act reads:

"40. Right of child to take
assistance of experts, etc.- 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."

8. Learned counsel for the applicant
submits that under Section 40 of the
POCSO Act, only assistance of a legal
counsel is provided to the child. It does not
give any power of hearing to them for
opposing the bail application. The said
Section does not give any special right to
the guardian or family of the child or puts
any obligation upon the Court as Section
439(1-A) of Cr.P.C. does.

9. Opposing the contention of learned
counsel for the applicant, learned AGA and
Sri Rahul Kumar Singh advocate submit
that Section 40 of the POCSO Act read
with the Rules of 2020 makes it incumbent
upon the Court to give an opportunity of
hearing to the family/guardian of the child
victim at the time of hearing of the bail
application.

10. A perusal of Section 40 of the
POCSO Act, if made cursorily, would only
indicate that it provides entitlement of legal
assistance through a counsel of their choice
or through Legal Services Authority, to the
family or guardian of the child. However,
such legal assistance would be meaningless
if the family or guardian of the child is not
8 All. Rohit Vs. State of U.P. & Anr.
439
aware of the said legal proceedings. A
proper and effective legal assistance can be
given to a person only when such a person
is made aware of the pending proceedings.
If the person is not made aware of the
proceedings, no legal assistance can be
given to him.

11. The Protection of Children from
Sexual Offences Rules, 2020 (for short ''the
Rules of 2020') are framed to give effect to
the purpose of the POCSO Act. Rules 4(13)
and 4(15) relevant for the purpose of this
case, which read:

"4. Procedure regarding care
and protection of child-

(13) It shall be the responsibility
of the SIPU, 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 Court proceedings.

(14) ...........

(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;

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

(x) the sentence imposed on an
offender."

12. A perusal of Rule 4(13) itself
shows that it is the duty of the SJPU or
local police to keep the child and his/her
parent/guardian or other person in whom
the child has trust and confidence, informed
about the developments including the arrest
of the accused, applications filed and other
Court proceedings. The "applications filed
and the other Court proceedings" is a wide
worded phrase which also includes within
its ambit bail applications filed before any
Court whatsoever. Therefore, the bail
applications filed, either before the Special
Court or before the High Court, are also
included in the same and, thus, it is the duty
of the SJPU or the local police to inform
the parent/guardian of the child victim with
regard to the same. Similarly, Rule 15 subrules (vii) and (viii) also makes it
incumbent upon the SJPU and local police
440 INDIAN LAW REPORTS ALLAHABAD SERIES
to inform the child and parent or guardian
with regard to the schedule of the Court
proceedings that the child is either required
to attend or is entitled to attend and bail,
release and detention status of the offender
or suspected offender.

13. Therefore, from the reading of
Section 40 of POCSO Act as well as Rule
4(13) and 4(15) of the Rules of 2020, it is
clear that this Court is required to ensure
that the SJUP or the local police informs
the family or guardian of the child and also
provide them legal assistance as required
with regard to all proceedings, including
the bail applications filed by the accused.
Thus, it is necessary to implead the
complainant, and in case the complainant is
not a family member or guardian of the
child, then the family member or guardian
of the child as opposite party along with the
complainant in the bail applications filed
before this Court.

14. There is yet another reason to
serve notice of the bail application in every
POCSO
offence
case
upon
the
parent/guardian of the child. A perusal of
provisions of POCSO Act and Rules of
2020 casts a duty upon every person
involved with the matter including the
courts
to
provide
circumstance
and
atmosphere wherein the victim child and
his family feels safe and secure. Providing
complete knowledge of judicial proceeding
and opportunity to participate in the same
would be a step in right direction in making
the victim child and his family to maintain
its faith in the justice delivery system of the
society and thus feel safe and secure.

15. So far the second question, with
regard to the manner in which notices is to
be served, ensuring that identity of the
child is not disclosed is concerned, such a
duty is cast upon the Special Court under
Section 33(7) of the POCSO Act. Section
33(7) reads as under:

"33. Procedure and powers of
Special Court-

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

16. This Court as well as the Supreme
Court repeatedly, in number of judgments,
have emphasized to protect the identity of the
child in every possible manner by every
person concerned. Therefore, in case the
guardian or family member or any other
person of the child is made opposite party by
name and notices are served upon them in
normal course, there is every possibility that
the identity of the child may get revealed to
the public at large.

17. In view thereof, it would be
appropriate that the complainant, and where
complainant is not a family member, along
with him, parent/guardian is made opposite
party in the following format:

"Complainant in Case Crime No.
.............., Police Station-..............., District-
.................,
service
of
notice
through
Investigating Officer/S.H.O. of the Police
Station"

or as per the requirement in a case
along with complainant, "Parent/Guardian of
the victim in Case Crime No. .........., Police
Station-..............., District-............, service of
notice through Investigating Officer/S.H.O.
of the Police Station."

18. Notice in every case shall be
served
through
Investigating
8 All. Munna Ram Vs. State of U.P.
441
Officer/S.H.O.
of
the
Police
Station
concerned upon such complainant and/or
parent/guardian
of
the
child.
The
Investigating Officer/S.H.O. of the Police
Station concerned shall ensure that identity
of the child does not get disclosed in any
manner whatsoever during investigation,
trial or during service of notice.

19. It has also come in the knowledge
of this Court that in large number of cases,
due
to
poverty
or
other
similar
circumstances, the parents of the victimchild are unable to engage a counsel and
make a proper representation before the
Court.

20. Under Section 40 of the POCSO
Act, the family or guardian of the child is
entitled to assistance of a legal counsel of
their choice or if they are unable to afford
a legal counsel, the Legal Services
Authority is duty bound to provide a legal
counsel.

21. In the given circumstances, since
in large number of cases, family members
are unable to engage a counsel and
represent in the bail applications, the notice
shall also include in hindi language, that, in
case the person so desires, he will get free
assistance including a lawyer to represent
him from the Legal Services Authority at
High Court, Lucknow Bench, Lucknow and
for the same he can contact:

"Dr. Satyabhan Singh, H.J.S.,

Registrar(J)(Listing)/Secretary,

High Court Legal Services SubCommittee,

Chamber
No.9,
High
Court,
Lucknow Bench, Lucknow.

Mobile No.9935299286,

Email:-
''hclssclko@allahabadhighcourt.in'"

22. Every notice issued to the
complainant or to the family/guardian of
the child shall also include the aforesaid
details in Hindi language to enable him, in
case he so desires, to take assistance from
the Legal Services Authority.

23. The Senior Registrar of this Court
shall ensure compliance forthwith.

24. In view of the aforesaid, in the
present case, learned counsel for the
applicant is permitted to implead the
complainant as opposite party no.2 during
the course of the day, in the manner
provided in this order.

25. Issue notice to opposite party no.2
returnable in week commencing 31.8.2021.

26. List in week commencing
31.8.2021.

27. Meanwhile, learned A.G.A. may
file counter affidavit.
----------
(2021)08ILR A441
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2021

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. Bail Application No. 12172 of
2021

Munna Ram ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Manvi Duxit Sharma, Sri Vinayak Nath
Singh,
Sri
Irshad
Husain,
Sri
Manu
Srivastava, Sri Anil Babu, Sri Ashwini Kumar
Awasthi, Sri Manish Tiwari