In the matter of Shivani Mishra Vs. State of U.P.; the Allahabad High Court on 14.12.2021 observed that “The victim is illiterate and apparently comes from a poor background. The legislature had provided for protection to such class of victims. By denying the aforesaid protection to the victim the State authorities specially Child Welfare Committee has acted in callous and high-handed manner.”
In the instant case, the victim a 12-year-old girl, was allegedly taken away by the Petitioner (Shivani Mishra) to a temple. The Petitioner got one Nitin Mishra to apply sindoor on the victim’s head, and certain ceremonies were performed by Nitin Mishra. Subsequently, the victim girl was given an intoxicating substance due to which she lost consciousness and Nitin Mishra forced himself upon her.
Taking into account the facts of the case and denying bail to the Petitioner, the Court took note of the lapses on the part of the State authorities and noted that directions issued by the Court in Junaid Vs. State of U.P. and another (Junaid’s case) had not been complied with and the protection guaranteed to child victim under the POCSO Act read with Rules have not been provided to the victims in the instant case.
It may be noted that in Junaid’s case, the High Court had, issued the following directions-
- Functions of local police/SJPU
- To inform the CWC about the offence within 24 hours of its registration.
- To serve the notice of bail application upon the child and intimate the date of hearing of the bail application to it.
- Apprise the child of its rights to information and services under the POCSO Act, 2012 and POCSO Rules, 2020.
- Inform the CWC about the need of the child for free legal aid.
- Produce the child before CWC when required under law. Prepare and submit reports as provided under the POCSO Act, 2012 read with POCSO Rules, 2020.
- To provide instructions to the Government Advocate in the High Court and DGC (Criminal) in the trial courts before hearing of the bail application. These will also include the report of service of bail application upon the victim, copies of Form B and information given to CWC, and report of information given to the child regarding entitlements under the POCSO Act, 2012 read with POCSO Rules, 2020 as detailed in Form A.”
- Functions of CWC
- Receive information and documents from the police and take appropriate action thereupon as provided in the POCSO Act, 2012 read with POCSO Rules, 2020.
- To apprise the child of its entitlements under the POCSO Act, 2012 read with POCSO Rules, 2020. Identify the person who would be best suited to protect the interests of the child and receive notices of the legal proceedings on its behalf from amongst the following persons: child’s parents/guardian/any other person in whom the child has trust and confidence or appoint a support person for the child whenever required.
- To prepare reports and coordinate with the police and various government agencies for providing information and services entitled to the child.
- To coordinate with the DLSA and HCLSC to provide free legal aid in appropriate cases to the child at the District Court and High Court respectively.
- Disclose to the High Court as well as the trial court the status of entitled information and services including free legal aid provided to the child and submit relevant reports when the bail application is placed before the Court.”
The Bench of Justice Ajay Bhanot ordered action against the Chairman, Child Welfare Committee of district Pilibhit who failed to follow the above guidelines laid down by the High Court.
The Court also issued a direction to the Police and the Child Welfare Committee to inform the aggrieved/victim party on getting the notice of the bail application of the accused, inform them about their rights, provide legal services, etc. In view of this, the Court directed the Principal Secretary, Department of Women & Child Development, Government of U.P. Lucknow, to take action against the Chairman, Child Welfare Committee of district Pilibhit and file a compliance affidavit before the Registrar General of the Court within a period of one month. Additionally, the Court observed that even the police authorities have not made full compliance of the directions issued in the Junaid case, therefore, the Court directed the Director General of Police, U.P. Lucknow to ensure that appropriate action be taken as per law and an affidavit before the Registrar General of the Court be filed.
– Vaishali Jain, Advocate & Associate – POSH at Work