Tuesday, June 28, 2022

Allahabad High Court asks new Advocate General to take remedial measures for POCSO accused’s bail

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The Allahabad High Court has asked the newly-appointed Advocate General of the state to take appropriate remedial measures so that under the POCSO Act, the government file of the bail application of the accused reaches the court. This is necessary so that the court can get cooperation and precious time of the court is not wasted.

A single bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Criminal Misc Bail Application filed by Sanjay Kumar @ Pintu.

This is a case where the applicant is facing trial for the offence under POCSO Act also. In Junaid vs State of Uttar Pradesh and another, 2021(6) ADJ 511, important and relevant directions were passed by a Coordinate Bench this Court including to make High Court Legal Services Committee (HCLSC) constituted under Section 8A of the Legal Services Authorities Act, 1987 as one of the respondent in any bail application arising out of POCSO Act and thereafter counsels are appearing on behalf of said Committee with the solemn object that HCLSC will provide service of a legal counsel to the victim on free of cost, upon recommendations of Child Welfare Committee in bail proceedings before the Court.

Further to inform the Court about the legal status of the legal aid provided to the victim and the requisition of the Chief Welfare Committee.

Advocate Abhinav Jaiswal appeared before the Court on behalf HCLSC. However, the Court observed that the Committee’s endeavour to protect right of the victims under POCSO Act is not taking real shape as there is no communication between the Committee and the victim as well as there is no communication with Child Welfare Committee and Special Juvenile Police Unit which has various duties as provided under Rule 4 of Protection of Children from Sexual Offences Rules, 2020.

Abhinav Jaiswal submitted that he will take all endeavour to come up with better instructions on merit as well as instructions from the victim, in order to provide her legal assistance to put her case before this Court on free of cost under the provisions of Legal Services Authorities Act, 1987, otherwise appearance on behalf of HCLSC would be an empty formality.

The Court said that there is another aspect, which is a matter of concern. The files of State Law Officers are not with them despite the fact that their office is just across the premises of the High Court. This is a bail application which requires immediate consideration as it concerns the liberty of an accused. It is informed that the process of appointment of new Advocate General is completed, therefore, he is directed to take appropriate remedial measures to avoid any inconvenience so that valuable time of the Court may not be wasted.

“Taking a lenient view, put up this application on 30th May, 2022 with the hope that respondents shall take appropriate instruction as well as positively inform the victim/informant about the bail application and will provide her legal assistance in terms of Act, 1987 and as per directions passed in judgment of the Court in Junaid (supra) as well as by Supreme Court in Nipun Saxena and others vs Union of India and others (2019) 2 SCC 703 and also the decision of the Court passed in Criminal Misc Bail Application No 26289 of 2020 (Soib vs. State of UP) dated 04.08.2021 wherein direction was passed to frame guidelines so that State Law Officers may get reasonable time to prepare the case in order to give proper assistance to the Court while hearing bail applications and in other ancillary issues,” the order reads.

In pursuance of said order the Additional Advocate General filed an affidavit to the following effect:

“In order to give proper assistance to the Court while hearing the bail applications and any ancillary issue, all the State Law Officers (criminal), posted in the Court having jurisdiction of bail, are directed to prepare the cases one day before, after 04.00 PM in the State Office premises where files shall be duly provided, as directed by the Court, order dated 04.08.2021, passed in Criminal Misc Bail Application No 26289 of 2020 (Soib vs State of UP)”

However, it appears that the same is not followed in its letter and spirit, the Court noted.

A.G.A is directed to place a copy of the order before Advocate General, State of Uttar Pradesh, the Court ordered.

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