Impleading victim’s parents is key to bail in POCSO Act cases, says Madurai Bench

The Madurai Bench of the Madras High Court has held that involving the parents of victim, de facto complainant, or guardian is essential for deciding on regular as well as appeal bail applications and suspension of sentence applications filed by individuals accused of offences under the Protection of Children from Sexual Offences (POCSO) Act.

It held that impleading victims or their parents/guardians is not mandatory in criminal appeals. However, if they wished to participate, they should be permitted to do so and be heard alongside the public prosecutor and defence counsel.

At the same time, Justice K. Murali Shankar made it clear that it would be crucial to ensure that the victim was not made a party in any proceedings or applications. “No direct notice should be served on them. When involving the victim’s family or de facto complainant, their identity and details should be protected and only necessary information should be disclosed…,” he said.

The judge clarified that involving victims or their parents is not necessary in criminal appeals challenging the convictions under the Act. However, their impleadment is essential in regular bail applications under Section 483 of the BNSS (Section 439 of Cr.P.C.) and suspension of sentence application under Section 430 of the BNSS (Section 389 of  Cr.P.C.).

Notice should be served on the victim’s parents or complainant through the address provided by State counsel. To protect the victim’s interests, courts may direct the District Legal Services Authority or the State Legal Services Authority or the High Court Legal Services Committee to provide legal assistance through their panel advocates, the judge clarified.

Before suspending the sentence, it is essential to hear the victim’s family on any potential harassment, threats, or coercion by the accused after conviction. Without notice and hearing, the appellate court may remain uninformed about crucial developments. The court acknowledged that some victims’ families may be traumatised and unwilling to participate, while others may actively engage to ensure justice is served. Therefore, hearing the victim’s side is necessary before granting appeal bail, the court observed.

Generally, in criminal cases instituted by the police, the victim/de facto complainant is not made a party. In criminal trials under the IPC, the POCSO Act, or any other special Act, impleading the victim/de facto complainant as a party is uncommon. However, with court permission, they can engage counsel to assist the public prosecutor/assistant public prosecutor in cases in which counsel’s role is limited and prosecution control remains with the public prosecutor/assistant public prosecutor. A judicial magistrate is empowered to permit the de facto complainant to conduct the prosecution independently through private counsel if the de facto complainant demonstrates inadequate prosecution by the assistant public prosecutor, the court observed.

The court passed the common order while hearing criminal appeals seeking suspension of sentence.