Bibi Ayesha Khanum vs. Union Of India

- 1 -
WP No.2318/2022
®

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

RD
DATED THIS THE 23 DAY OF FEBRUARY, 2022

PRESENT

THE HON’BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

AND

THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

WRIT PETITION NO.2318 OF 2022 (GM-POLICE)

BETWEEN:
1. BIBI AYESHA KHANUM
AGE 28 YEARS
W/O BABA ABDUL NABI KHAN
PRESENTLY AT D6, DONA CYNTHIA
35 PRIMROSE ROAD,
BANGALORE-560025

2. DIVYA CHRISTINE
AGED 56 YEARS
W/O JOE LAZAR
PRESENTLY AT D6, DONA CYNTHIA
35 PRIMROSE ROAD, BANGALORE-560025

3. PENCHILAMMA
AGED 38 YEARS
W/O PENCHILA NARASIMHALU
PRESENTLY AT D6, DONA CYNTHIA
35 PRIMROSE ROAD
BANGALORE-560025
...PETITIONERS
(BY SRI. ROHAN KOTHARI, ADVOCATE)

AND:
1. UNION OF INDIA
THROUGH ITS SECRETARY
MINISTRY OF LAW AND JUSTICE
TH
4 FLOOR, A-WING SHASTRI BHAWAN
NEW DELHI-110001


- 2 -
WP No.2318/2022
2. STATE OF KARNATAKA
THROUGH ITS SECRETARY
HOME DEPARTMENT
VIDHANA SOUDHA
DR. AMBEDKAR VEEDHI
BANGALORE-560001
3. KARNATAKA STATE POLICE
THROUGH THE DIRECTOR-GENERAL
AND INSPECTOR GENERAL OF POLICE
NRUPATUNGA ROAD, BANGALORE-560001

4. KARNATAKA STATE LEGAL SERVICES AUTHORITY
ST
1 FLOOR, NYAYA DEGULA BUILDING
H. SIDDAIAH ROAD, BENGALURU-560027
… RESPONDENTS
(BY SRI. KUMAR.M.N, CGC FOR R1;
SMT. VANI.H, AGA FOR R2 & 3;
SRI. SHRIDHAR PRABHU, ADVOCATE FOR R4)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE
DIRECTIONS TO RESPONDENTS TO ENSURE EFFECTIVE
IMPLEMENTATION OF THE POCSO ACT, 2012 AND THE POCSO
RULES, 2020 AND ETC.

THIS PETITION COMING ON FOR ORDERS THIS DAY,
SURAJ GOVINDARAJ J MADE THE FOLLOWING:

ORDER

1. Sri.M.N.Kumar, learned CGSC accepts notice for
respondent No.1. Smt.H.Vani, learned Additional
Government Advocate accepts notice for
respondents No.2 and 3.
Sri.Shridhar Prabhu, learned counsel accepts
notice for respondent No.4.



- 3 -
WP No.2318/2022

2. The petitioners are before this Court seeking for
the following reliefs:
a. Issue directions to Respondents to ensure effective
implementation of the POCSO Act, 2012 and the
POCSO Rules, 2020.

b. Declare that Section 40 of the POCSO Act read with
Rule 4 of the POCSO Rules mandates that the child
victim/parent/guardian/complainant as the case
may be shall be informed through the issuance of a
notice regarding any application for bail preferred
by an accused person.

c. Declare that Section 40 of the POCSO Act read with
Rule 4 of the POCSO Rules mandates that the legal
representative of the child victim/parent or
guardians/complainant as the case may be, is
heard before granting of bail to the accused;

d. Issue directions to the effect that all the relevant
documents required for the
victim/complainant/informant to effectively
represent themselves during hearing of bail
applications filed by the accused shall be provided
to them by the concerned police or SJPU;

e. Issue directions to all criminal courts to exercise
their jurisdiction with a view to secure efficient and
effective participation of child victims/their
caregivers through their legal representatives at all
stages of the judicial process;

f. Issue directions to Respondents No.1 to 3 to
ensure that the interests of child victims of sexual
abuse/their families are protected with particular
reference to Section 40 of the POCSO Act and Rule
4 of the POCSO Rules;


g. Issue directions to the effect that in cases where
child sexual offences have been perpetrated by a
close family member, a notice regarding filing of
bail application by an accused also be issued by the
concerned police or SJPU the concerned Child
Welfare Committee and a copy of such
notice/information be also sent to Respondent
No.4;



- 4 -
WP No.2318/2022
h. Direct Respondents No.3 and 4 to develop a
mechanism to monitor compliance of Section 40 of
the POCSO Act, Rule 4 of the POCSO Rules;

i. Pass any other orders/directions that this Hon’ble
Court deems fit in the circumstances of the present
case.


3. In this Public Interest Litigation, the petitioners
are seeking for effective implementation of the
Protection of Children From Sexual Offences Act
2012 (‘POCSO Act’ for short) and the Protection
of Children from Sexual Offences Rules, 2020
(‘POCSO Rules’ for short) as also the amended
provisions of Section 438 and 439 of the Code of
Criminal Procedure, 1973.


4. The grievance of the petitioners is that in
prosecution for offences under the POCSO Act
when the accused were to move the Court for
grant of bail, the defacto complainant and/or
caregiver of the minor victim are not informed of
the application filed for bail, thereby an
opportunity to the complainant/victim or
informants/caregiver to place their contentions
and/or oppose an application for bail is denied.


- 5 -
WP No.2318/2022


5. The petitioners are stated to be mothers of
children who have been subjected to sexual
offences punishable under the POCSO Act, the
petitioners being the complainants or informants
in the complaints registered under the provisions
of POCSO Act, the petitioners being the
complainants or informants in the complaints
registered under the provisions of the POCSO Act
have gone through an harrowing time inasmuch
as in the proceedings which had been initiated
against the accused, the petitioners were not
provided with an opportunity to object to the
same and as such the accused having been
granted bail without consideration of any
objections that they had. It is with an intention
that similar situations are not faced by the
mothers who are the complainants or informants
and/or other complainants and informants in
POCSO matters that the present petition has
been filed.



- 6 -
WP No.2318/2022

6. It is the contention of the petitioners that any
orders that may be passed in the present petition
may not enure to the benefit of the petitioners
inasmuch as in respect of the complaints filed by
the petitioners, where bail had already been
granted any directions passed in favour of the
petitioners would have no effect on the said
orders already passed.


7. Sri. Rohan Kothari, learned counsel for the
petitioners would submit that:


7.1. POCSO Act is a special enactment for
protection of children from offences of
sexual assault, sexual harassment, etc.
which constitutes a heinous offence and in
such circumstances, it is required that when
a bail application of an accused is being
considered, the complainants/victims and or
caregivers of the victims be made aware of
such an application being filed so as to


- 7 -
WP No.2318/2022
enable them to appear in the said
proceedings and oppose application for bail;


7.2. Criminal Law Amendment Act, 2018 has
amended Section 439 by including Section
439(1)(A) which has come into effect from
20.04.2019 and in terms thereof, a Court
while considering an application for bail, is
required to issue notice not only to the
State, the dejure complainant but also to
the defacto complainants so as to provide
them with an opportunity to place their
objections.


7.3. By relying upon Section 40 of the POCSO
Act he submits that it is a provision made to
enable the victim child to avail legal
assistance and if they are not able to afford
a legal counsel, the Legal Services Authority
is obligated to provide such legal assistance.
Legal representation and assistance is
required even at the stage of consideration


- 8 -
WP No.2318/2022
of bail application, it is not restricted to the
stage of trial or arguments in a proceedings.


7.4. By way of Criminal Law Amendment Act,
2018, Section 376(3), 376(ab), (da), (db)
of the Indian Penal Code have been
amended by which offences as regards
women under 16 years and/or 12 years are
made punishable. It is on that basis that he
submits that the provisions of Section
439(1-A) which are applicable to offences
under Section 376 are also to be made
applicable to offences under the POCSO Act.


7.5. On the basis of the above he submits that
necessary directions are required to be
issued by this Court for effective
implementation of the POCSO Act and Rules
to the courts handling matters relating to
offences under the POCSO Act, Police
Stations more particularly the Special


- 9 -
WP No.2318/2022
Juvenile Police Units (SJPU) as also the
Prosecutors.

7.6. In similar Public Interest Litigation having
been filed before the High Court of
Judicature at Bombay, directions have been
issued which he submits is required to be
issued in the present matter also.

8. Shri M G Kumar, Learned Counsel for Respondent
No.1- Union of India, submits that most of the
directions are sought for against the State
Authorities and not against the Union, he
however submits that the Union will comply with
any directions that may be issued in this regards.

9. Ms. Vani, learned Additional Government
Advocate, submitted that the State Authorities
are issuing notices to the complainant in respect
of the aforesaid offences and as such following
the mandate of law. In view of the same, there
may not be a requirement for issuance of any


- 10 -
WP No.2318/2022
fresh directions. However, directions if any issued
will be followed by the State and its authorities.

10. Heard Shri Rohan Kothari, learned counsel for the
Petitioners, Shri M.G. Kumar, learned Counsel for
the Respondent No.1- Union of India and Ms.
Vani, learned AGA for Respondent No. 2 to 4 the
State authorities.

11. Section 439(1-A) is reproduced hereunder for
easy reference:
(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 section 376 or section
376AB or section 376DA or section 376DB of the
Indian Penal Code (45 of 1860).


12. 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 (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.



- 11 -
WP No.2318/2022

13. The amended Provisions of Sections 376(3),
376(AB), (DA), (DB) of the Indian Penal Code

376 (AB) Punishment for rape on woman
under twelve years of age

Whoever, commits rape on a woman under
twelve years of age shall be punished with
rigorous imprisonment for a term which shall not
be less than twenty years, but which may extend
to imprisonment for life, which shall mean
imprisonment for the remainder of that person’s
natural life, and with fine or with death:
Provided that such fine shall be just and
reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any fine imposed under
this section shall be paid to the victim.
376 (DA) Punishment for gang rape on
woman under sixteen years of age
Where a woman under sixteen years of age is
raped by one or more persons constituting a
group or acting in furtherance of a common
intention, each of those persons shall be deemed
to have committed the offence of rape and shall
be punished with imprisonment for life, which
shall mean imprisonment for the remainder of

that person’s natural life, and with fine:


- 12 -
WP No.2318/2022
Provided that such fine shall be just and
reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any fine imposed under
this section shall be paid to the victim.
376 (DB) Punishment for gang rape on
woman under twelve years of age
Where a woman under twelve years of age is
raped by one or more persons constituting a
group or acting in furtherance of a common
intention, each of those persons shall be deemed
to have committed the offence of rape and shall
be punished with imprisonment for life, which
shall mean imprisonment for the remainder of
that person’s natural life, and with fine, or with
death:
Provided that such fine shall be just and
reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any fine imposed under
this section shall be paid to the victim.


14. None can have any doubt that offenses under the
POCSO Act are heinous in nature and are more
often than not committed by depraved persons.

15. The benefit of Article 21 of the constitution is not
only available to the accused but also to the
victims and their families of any criminal offence.
For an orderly society to exist it is but required
that the victims of criminal offences more


- 13 -
WP No.2318/2022
particularly heinous offences have a say in the
criminal prosecution of the accused.

16. Though the prosecution of such offences rests
with the State, who is to act impartially, the
prosecution system is overburdened, many a time
prosecutors not having been appointed, leading
to inordinate delay. If a victim or complainant
wants to and can effectively assist the
prosecution, the same is required to be
permitted, albeit with the caveat that the
prosecutor would always be in charge of the
prosecution and would be the deciding authority
as regards the mode and manner of conducting of
the prosecution. For this to happen it is essential
that the complainant/Victim is aware of the
proceedings in court.

17. We have perused the Judgment of the High Court
of Judicature at Bombay in PIL No.5/2021 (Arjun
Kishanrao Malge -v- State of Maharashtra
and Others dated 08.04.2021), as also the


- 14 -
WP No.2318/2022
judgement of the Hon’ble Delhi High Court in
Reena Jha v- Union of India (W.P. (C)
5011/2017). The Division Bench of the Hon’ble
High Court of Judicature at Bombay as also the
Single Judge of the Hon’ble High Court of Delhi
have extensively dealt with this matter and
issued directions which in our opinion could also
be issued by this Court. Hence, we issue the
following directions:

17.1. The Investigation officer or the SJPU shall
inform the Victim’s
parents/caregiver/guardian as also the legal
counsel if appointed, about any application
for bail or any other application having been
filed by the accused or the prosecution in
the said proceedings.

17.2. The public prosecutor shall serve a copy of
any application or objections to be filed in
the said proceedings on the Victim’s
parents/caregiver/guardian as also the legal


- 15 -
WP No.2318/2022
counsel if appointed and issue notice of
hearing of such application on them, along
with all relevant documents and records
necessary for their effective participation in
the proceedings, in this regard the
prosecutor is entitled to take the assistance
of the Investigating Officer or the SJPU and
file necessary proof of service of copies and
notice of hearing. In the unlikely event of
service not being effected it shall be the
duty of the Prosecutor to inform the reasons
in writing to the relevant court.

17.3. The Accused or the counsel for the accused
shall serve a copy of any application or
objections to be filed in the said proceedings
on the Victim’s parents/caregiver/guardian
as also the legal counsel if appointed and
issue notice of hearing of such application
on them, along with all relevant documents
and records necessary for their effective
participation in the proceedings. The


- 16 -
WP No.2318/2022
Accused or the Counsel for the Accused to
file necessary proof of service of copies and
notice of hearing. In the unlikely event of
service not being effected it shall be the
duty of the Accused or Counsel for the
Accused to inform the reasons in writing to
the relevant court.

17.4. In the event of the accused being a close
family member or an acquaintance of the
family, in addition to the above a copy of
any application or objections to be filed in
the said proceedings shall be served on the
jurisdictional Child Welfare Committee
(CWC) and issue notice of hearing of such
application on CEC, along with all relevant
documents and records necessary for their
effective participation in the proceedings;

17.5. The concerned Court, before proceeding to
hear the application, shall ascertain the
status of service of notice, and if it is found


- 17 -
WP No.2318/2022
that notice has not been issued or though
issued has not been served, the Court may
make such reasoned order as it deems fit to
secure the ends of justice, taking into
account any emergent circumstances that
warrant dealing with the application in the
absence of the Victim’s parents/caregiver/
guardian or legal counsel.

17.6. Despite service of the above notice, if none
were to appear, the Court may proceed
further or issue a fresh notice, as the Court
may deem fit and proper, considering the
interest of justice.

17.7. When the proceedings under the POCSO Act
also involve offences under Sections 376(3),
376-AB, 376-DA or 376-DB of the Indian
Penal Code, the notice to the victim shall be
issued under Section 439(1-A) read with
Rule 4(13) and 4(15).


- 18 -
WP No.2318/2022

17.8. Whenever an accused who is charged under
Sections 376(3), 376-AB, 376-DA or 376 DB
of the IPC or the provisions of the POCSO
Act, moves an application for bail be it
regular, interim, transit or any other
classification, notice shall be issued by the
Accused to the Investigating officer, SJPU,
Public Prosecutor as also any counsel on
record for the victim/
complainant/informant;

17.9. The victim/complainant/informant who
appears before the Court may be
represented by own counsel or by a counsel
appointed by the Karnataka State Legal
Service Authority or the concerned District
Legal Services Authority/Taluka Legal
Services Authority.

17.10. The state Government to provide for
sufficient funds in order to make payments
to the counsel so appointed.


- 19 -
WP No.2318/2022

17.11. On service of notice on the Victim’s
parents/caregiver/guardian as also the legal
counsel, they are to be informed about the
protection available under Witness
Protection Scheme, 2018 and enquire if
they require any such protection, if there is
a request made for police protection, the
same shall be considered and granted in
terms of the Witness Protection Scheme
2018. In the event of information being
provided by a whistleblower necessary
protection to be provided in terms of The
Whistle Blowers Protection Act, 2014.

18. The Registrar General is directed to forward a copy
of this order

18.1. to all Sessions Judges and Special Court
Judges (POCSO Court) in the State of
Karnataka for due compliance.


- 20 -
WP No.2318/2022

18.2. to the Director Karnataka Judicial Academy,
to incorporate the above directions in the
concerned training programs.

18.3. to the Director-General of Police, State of
Karnataka, who in turn is directed to
forward it to all Station House officers,
Special Juvenile Police Units and all
concerned with offences under the POCSO
Act in the Police Department. The Director
General of Police, State of Karnataka is also
directed to get conducted necessary
programs to sensitize the police personnel
and train them to comply with the above
directions. The Director-General of Police,
State of Karnataka is also directed to set up
a suitable system for monitoring and
reporting on the compliance of the above by
the concerned police personnel.

18.4. to the Director of Prosecution, State of
Karnataka, who is in turn directed to


- 21 -
WP No.2318/2022
forward the same to all prosecutors in the
state with a direction to them to comply
with this order.

18.5. to the Member Secretary, Karnataka State
Legal Services Authority who in turn is
directed to forward it to all District Legal
Services Authority Officers and Taluka Legal
Services Authority Officers within the State
of Karnataka with a further direction to
make available legal aid whenever
requested, free of cost.

19. Writ Petition stands disposed with above directions



Sd/-
CHIEF JUSTICE




Sd/-
JUDGE

ln