# Sandeep Joshi v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 795
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-15
- **Case number:** Crl. Misc. Bail Application No. 3574 of 2023
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-joshi-v-state-of-u-p-ors-49843
- **Pages:** 4

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 376, 323 & 506 - The
Protection
of
Children
From
Sexual
Offences Act, 2012 - Section 3/4 - Section
40 - Right of child to take assistance of
experts, etc. - entitlement of legal
assistance through a counsel of their
choice
or
through
Legal
Services
Authority, to the family or guardian of the
child - legal assistance is required and the
concerned SHO/Special Juvenile Police
Unit (SJPU) will inform the victim or the
complainant of the case - The Protection
of Children From Sexual Offences Rules,
2020 - Rules 4(13) & 4(15) - Procedure
796 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding care and protection of child -
audi alteram partem .(Para - 4)
Complainant or any person on behalf of child
victim - to be made a party to the proceedings -
if any person made opposite party in bail
application - mode of service upon such a
person - Court required to ensure - identity of
child victim not disclosed - at any time during
course of investigation or trial.(Para - 3)
HELD:-Notice
should
be
issued
to
the
complainant/victim to inform them of the date
of the registered application filed in High
Court.(Para - 7)

Bail application pending. (E-7)

List of Cases cited:

Rohit Vs St. of U.P. through Secy. Home Lko. ,
Bail No.8227 of 2021

## Text

3 All. Sandeep Joshi Vs. State of U.P. & Ors.
795
decision would have been founded on facts
and would have addressed the genuine
concerns of the parties. In that the Court
may also have considered if supply of a
transcript of the conversation or any
portion or part thereof may serve the need
of the defence. Certainly, the volume of the
document is not an issue here as the entire
document would fit on a pen drive.

17. The reasoning of the learned court
below based on Section 327 Cr.P.C. may not
be correct. That provision basically requires
the trial such as this (involving offence under
section 376 IPC), to be conducted in camera.
Sub-section (3) of section 327 Cr.P.C.
prohibits printing or publication of any matter
in relation to such proceeding, except with
leave of the Court. Plainly, that provision
would have no application to the request of the
accused person to be made available copy the
document existing on the case diary for the
purpose of setting up a defence. That provision
applies
primarily
against
printing
or
publication by third party, outside the Court
proceedings. In any case, by virtue of Section
327 Cr.P.C., it would remain with the Court to
restrain the accused person from making any
publication, through any means of any part of
such material, outside the Court proceedings.

18. Further another defect appears to
exist in the order learned court below
inasmuch as in the earlier part of the order it
has been suggested that the copy of the
desired document had already been made
over to the applicant. That part of the
reasoning would conflict with the later
reasoning that such clone copy of pen-drive
is not required to be given to the accused
person, arising from concerns of privacy of
the victim.

19. Whichever way the matter is
looked at, at present the order passed by
the learned court below is found to be
deficient in reasoning. In view of the
discussion made above, the said order
cannot be sustained. It is set aside. The
matter is remitted to the learned court
below to pass a fresh order, keeping in
mind the observation made above. Such
exercise may be completed within one
month from the date of communication of
the order to the learned court below.

20.

Accordingly,
the
present
application is disposed of.
----------
(2023) 3 ILRA 795
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Crl. Misc. Bail Application No. 3574 of 2023

Sandeep Joshi ...Applicant
Versus
State of U.P. & Ors. ...Respondent

Counsel for the Applicant:
Pradeep Kumar Tripathi

Counsel for the Respondent:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 376, 323 & 506 - The
Protection
of
Children
From
Sexual
Offences Act, 2012 - Section 3/4 - Section
40 - Right of child to take assistance of
experts, etc. - entitlement of legal
assistance through a counsel of their
choice
or
through
Legal
Services
Authority, to the family or guardian of the
child - legal assistance is required and the
concerned SHO/Special Juvenile Police
Unit (SJPU) will inform the victim or the
complainant of the case - The Protection
of Children From Sexual Offences Rules,
2020 - Rules 4(13) & 4(15) - Procedure
796 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding care and protection of child -
audi alteram partem .(Para - 4)
Complainant or any person on behalf of child
victim - to be made a party to the proceedings -
if any person made opposite party in bail
application - mode of service upon such a
person - Court required to ensure - identity of
child victim not disclosed - at any time during
course of investigation or trial.(Para - 3)
HELD:-Notice
should
be
issued
to
the
complainant/victim to inform them of the date
of the registered application filed in High
Court.(Para - 7)

Bail application pending. (E-7)

List of Cases cited:

Rohit Vs St. of U.P. through Secy. Home Lko. ,
Bail No.8227 of 2021

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Heard learned counsel for the
applicant, Sri Rajesh Kumar Singh learned
AGA for the State.

2. Present application for bail is filed
by the applicant to enlarge him on bail in
case crime No.434 of 2023 under Section
376, 323, 506 IPC and 3/4 of Protection of
Children from Sexual Offence Act, PS
Hargaon, district Sitapur.

3. Two questions before this Court
emerged in the case bearing Bail No.8227
of 2021 (Rohit. Vs. State of U.P. through
Secy. Home Lko.):

"(i) whether the complainant or any
person on behalf of 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."

4 The Court while discussing the
aforesaid two issue, has passed the detailed
order and the Court has opined in
paragraph-10
of
the
said
case
that
entitlement of legal assistance through a
counsel of their choice is mandatory and
also second question has been answered by
the Coordinate Bench. While issuing
directions, the Court has passed the order
that legal assistance is required and the
concerned SHO/Special Juvenile Police
Unit (SJPU) will inform the victim or the
complainant of the case. The relevant
paragraphs of the said judgment in the case
of Rohit (supra) are quoted below:-

"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
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
3 All. Sandeep Joshi Vs. State of U.P. & Ors.
797
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.

X X X

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.

X X X

18. Notice in every case shall be
served
through
Investigating
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.

X X X

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."

5. Sri Rajesh Kumar Singh learned
AGA-I has made submissions that Section
40 of the POCSO Act, 2012 is statutory
798 INDIAN LAW REPORTS ALLAHABAD SERIES
mandate which envisages that the victim
has right to represent her cause before the
Court. Section 40 of the POCSO Act is
quoted below:-

"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."

6. On specific query I have been
informed by the Sri Rajesh Kumar Singh,
learned AGA-I that as soon as notice is
received by the Office of the GA, the
information is sent to the concerned
police station and the concerned police
station
informs
the
victim
or
the
complainant
as
the
case
may
be.
However, he has submitted that while
giving information, the police informs the
complainant/victim that the case is filed
in
High
Court,
and
this
is
only
information given to the victim or the
family member. It is the practice that
after ten days of notice, the applications
are filed but the victim or the family
member does not know the date fixed by
the Court only the notice number
registered in the G.A. Office is informed
without further details of the number of
the application registered in the Office of
High Court.

7. Section 40 of the Protection of
Children
from
Sexual
Offence
Act
mandates that right of a child to take
assistance of a legal practitioner is
necessary and I am of the opinion that
specific date fixed in the registered
application filed in High Court should be
informed to the complainant or the victim
as the case may be. In my opinion applying
the principles of audi alteram partem
coupled with Section 40 of the POCSO Act
I am of the view that notice is liable to be
issued to the complainant/victim.

8. Therefore, I issue notice to O.P.
No.2 returnable on or before the date fixed.

9. List this case on 10.4.2023 within
top 20 cases.

10. Before parting with the case, I
appreciate the legal assistance provided by
Sri Rajesh Kumar Singh, learned AGA-I.
----------
(2023) 3 ILRA 798
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.03.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Crl. Misc. Bail Application No. 3794 of 2023

Vishwanath ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Tripuresh Mishra

Counsel for the Respondent:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 323,504,506 & 304 -
Four accused - allegation of assault - deceased
received one injury on his head - other two
injuries received on non-vital parts of the body -
one of the accused granted bail - case of
applicant at par with case of co-accused - no
previous criminal history -- no possibility of