Child Victims Need Not Be Parties, But Must Be Informed in POCSO Cases: Rajasthan High Court

The Rajasthan High Court rules that in POCSO cases, child victims or their guardians need not be impleaded as parties in proceedings, including bail applications, but must be informed at every stage and provided legal assistance if required.

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JODHPUR: In a ruling for cases under the Protection of Children from Sexual Offences (POCSO) Act, 2012, the Rajasthan High Court recently clarified that the child victim, their parents, guardian, or any person in whom the child has trust and confidence, do not need to be impleaded as parties to proceedings, including bail applications. However, the Court emphasized a mandatory obligation to inform them about all stages of the proceedings, ensuring their right to be heard and access legal support.

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Background of the Case

The case arose when the applicant approached the High Court challenging the rejection of their bail application by the Special Judge (POCSO Act Cases), Hanumangarh. The central issue was whether the child victim, their guardians, or trusted persons must be made parties to bail proceedings under the POCSO Act.

The Legal Issue

The High Court examined whether the victim/child or their guardian/parents must be impleaded as a respondent in POCSO cases, particularly in bail applications.

The applicant cited the Division Bench judgment in Pooja Gurjar & Anr. v. State of Rajasthan (2023), which held that the victim’s presence is not mandatory as a party but that they have a right to be heard at every stage of the proceedings. The Public Prosecutor contended that Rule 4(13) and Rule 4(15) of the POCSO Rules 2020 require the victim/guardian to be impleaded.

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Court’s Reasoning

The Single Bench of Justice Sandeep Shah clarified:

1. Participation through Legal Counsel:
   • Sections 39 and 40 of the POCSO Act guarantee legal assistance to the child’s family or guardian, and if they cannot afford a lawyer, Legal Services Authorities will provide one.
   • This ensures that the victim can participate fully in proceedings without being formally impleaded.
2. Right to Information:
   • Section 39, Section 40, and Rule 4 of the POCSO Rules mandate that the child, their guardians, or trusted persons must be informed of every stage of the proceedings, including:
     • Arrest of the accused
     • Filing of applications, including bail
     • Court hearings and other proceedings
3. No Legislative Requirement for Implementation:
   • Impleading the victim or guardian as a party would contradict legislative intent and the provisions of Sections 23, 33, 37 of the Act, as well as Sections 72 and 73 of the BNS, 2023 (Section 228-A of Cr.P.C.).
4. Balancing Rights:
   • The Court recognized the need to balance the accused’s right to immediate bail hearings with the victim’s right to information and legal assistance.

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Directions Issued by the Court

To streamline the process and protect the rights of all parties, the High Court issued clear directives:

1. Service of Bail Applications:
   • The counsel for the applicant/accused must serve a copy of the bail application and papers to the Public Prosecutor before listing the case.
2. Informing Victim’s Guardians:
   • The Public Prosecutor will send the application to the Investigating Officer (S.H.O.) to inform the child’s guardian/parents or a trusted person.
   • If the victim has a lawyer, they must also be informed.
3. Legal Aid Provision:
   • The S.H.O. must provide the paper book to the District Legal Services Authority or RALSA to ensure that legal assistance is provided to the child’s family if they cannot afford a lawyer.
4. Report on Service Failure:
   • If guardians or trusted persons cannot be located, a report must be submitted to the Public Prosecutor before proceeding with the case.
5. Interim Bail Considerations:
   • In urgent situations, such as interim bail applications, the Court may decide on a case-by-case basis, ensuring that the reasons for proceeding without service are recorded.
6. Guidelines and SOPs:
   • The Registry has been asked to place the matter before the Chief Justice to frame necessary instructions or standard operating procedures (SOPs) for consistent practice across courts.

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Appearance:
Petitioner: Advocate Nishant Motsara
Respondent: Public Prosecutor Hathi Singh Jodha

Case Title:
Sandeep Singh Alias Sonu Versus State Of Rajasthan
S.B. Criminal Miscellaneous Bail Application No. 11482/2025

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