MADURAI: The Madurai bench of the Madras High Court recently clarified that it is necessary to add parents or guardians of victims as a party in regular bail applications or petitions seeking suspension of sentence filed by the accused or convicts in cases involving the Protection of Children from Sexual Offences (Pocso) Act, 2012.
“But the victim should not be directly involved or served notice in any proceedings. Instead, notice should be served to the victim’s parents or complainant,” Justice K Murali Shankar said. When involving the victim’s family or the de facto complainant, their identity and details should be protected, and only necessary information should be disclosed without revealing their identity, he added.
To protect the victim’s interest, the courts may direct the district or state legal service authority or the HC Legal Services Committee to provide legal assistance, Justice Shankar further said.
The judge made the observations while hearing a batch of suspension of sentence applications filed by three persons who were convicted under the Pocso Act in Sivagangai, Theni and Dindigul districts. During the course of the hearing, the judge had raised a query whether the de facto complainant is a necessary party in the criminal appeals challenging convictions under the Pocso Act and the corresponding applications seeking suspension of sentence in those convictions.
While the counsel for the appellants (convicts) had submitted that notice is not necessary as per the Pocso Act and Rules, the government counsel had contended that notice is necessary since the amended Section 439 (1-A) of CrPC mandated notice before granting bail to a person accused of an offence under Section 376 (3) or 376-AB or Section 376-DA or 376-DB of IPC.
After an elaborate discussion, the judge concluded that impleading the victim or their parents/guardians is not mandatory in criminal appeals. However, if they wish to participate, they should be permitted to do so and be heard alongside the public prosecutor and defence counsel, he added.
As regards the suspension of sentence and bail applications, the judge said the principle under Section 439A of CrPC — requiring notice to the informant for specific IPC offenses against children — should logically extend to both regular and appeal bail applications under the Pocso Act.
Especially, before suspending a sentence, it is essential to hear the victim’s family about any potential harassment, threats, or coercion by the accused post-conviction, he opined.
“Without notice and hearing, the appellate court may remain uninformed about crucial developments. While acknowledging that some victims’ families may be traumatised and unwilling to participate, others may actively engage to ensure justice is served. Therefore, hearing the victim’s side is necessary before granting appeal bail,” he added.