Snchayita Lahkar

The Madras High Court at Madurai, Single Bench of Justice K. Murali Shankar held that in cases under the Protection of Children from Sexual Offences (POCSO) Act, it is not necessary to involve the victims or their parents in criminal appeals challenging convictions. However, the Court directed that the victim, their family, or the de facto complainant must be notified and heard in applications for regular bail or suspension of sentence. Justice Murali Shankar further clarified that victims should not be directly involved in such proceedings, and any notice must be routed through the address provided by the State Counsel, ensuring confidentiality and protection of their identity.

The case arose from three criminal appeals filed by individuals convicted under the Protection of Children from Sexual Offences (POCSO) Act by different Special Courts in Sivagangai, Theni, and Dindigul districts. Each appellant sought suspension of sentence and release on bail pending the disposal of their respective appeals. The central issue considered by the Court was whether, in such proceedings under the POCSO Act, the de facto complainant or the victim’s parents or guardians must be treated as necessary parties and whether notice to them is mandatory during appeal and bail hearings.

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Counsel for the appellants argued that neither the POCSO Act nor the rules framed under it required notice to the victim or their family during appeal or bail proceedings, and that the State, represented by the prosecution, sufficiently represented the interests of the victim. The State, represented by the Government Advocate, contended that notice to the victim or their authorized representative is necessary in light of Section 439(1-A) of the Code of Criminal Procedure, which mandates the presence of the informant during bail hearings in specified sexual offence cases.

In examining the issue, the Court referred to several precedents, including decisions of the Supreme Court and various High Courts, such as those from Rajasthan, Bombay, Chhattisgarh, and Karnataka, which addressed the rights of victims and their participation in proceedings under the POCSO Act. The Court also examined relevant provisions, including Sections 39 and 40 of the POCSO Act, Rules 4(13) and 4(15) of the POCSO Rules, and Section 439(1-A) of the Code of Criminal Procedure.

After analyzing these materials, the Court determined that while the victim or their parents need not be impleaded as parties in criminal appeals, notice to them—through the State Counsel—is essential in applications for bail and suspension of sentence, to ensure their participation without compromising their privacy and protection

Justice Murali Shankar observed that “the Hon’ble Supreme Court has categorically held that the victim has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.” However, he clarified that such participation does not necessarily translate into impleadment as a party.

Referring to the Rajasthan High Court’s interpretation of Jagjeet Singh, the Court recorded that “the mandate of Jagjeet Singh’s case that the victim has unbridled participatory rights in criminal proceedings does not mean that the victim must replace or substitute the State as the prosecuting agency nor that the victim must be impleaded as a party to the proceedings so as to make the victim answerable in all aspects.” The Court accepted that victims must be given the right to be heard without being made formal parties.

To contextualize its reasoning, the Court extracted and analyzed Sections 39 and 40 of the POCSO Act, Rule 4 of the POCSO Rules, and Section 439(1-A) CrPC. It noted that Rule 4(13) and Rule 4(15) require the police to inform the victim’s family or guardian about developments in the case, including the arrest, filing of charges, bail applications, and trial proceedings. The Court also referred to the Model Guidelines issued by the Ministry of Women and Child Development, which state that children have “the right to be heard in any judicial and administrative proceedings affecting them.”

The judgment discussed several precedents. The Bombay High Court’s decision in Arjun Kishanrao Malge v. State of Maharashtra was cited to affirm that the victim’s family or legal counsel must be notified of all applications made by the accused. Similarly, the Chhattisgarh High Court in Akash Chandrakar v. State of Chhattisgarh had directed that notice of applications for suspension of sentence be served on the victim’s parent or guardian. The Karnataka High Court’s judgement in Bibi Ayesha Khanum v. Union of India was also referenced for recognizing the duty to notify victims of bail proceedings.

The Court contrasted these with the Calcutta High Court’s decision in Ganesh Das v. State of West Bengal, which held that victims are not necessary parties in appeals challenging convictions. It noted that “trial, conviction, and sentence are matters primarily between the accused and the State,” and thus an appeal does not become defective for want of impleadment.

Justice Shankar reconciled these judgements by holding that while impleadment is not compulsory, notice and hearing rights of victims or their guardians cannot be ignored. He recorded that “given the availability of prosecution and defense evidence, the appellate court can decide on the conviction’s validity by hearing the prosecutor and defense counsel,” but added that “the victim’s parents or guardian should be permitted to participate if they wish.”

On the question of suspension of sentence and bail pending appeal, the Court stated that “notice to the victim’s parents, guardian, informant, or support person would be absolutely necessary in the ends of justice while hearing and considering the application for suspension of sentence in pending appeal.” It relied on Section 31 of the POCSO Act, which applies the CrPC’s procedural provisions to POCSO cases, and Section 42, which provides that where an act is punishable under both POCSO and IPC, the law prescribing higher punishment applies.

The Court issued a set of detailed directives clarifying the procedural protocol in future POCSO-related appeals and bail matters. It held that impleadment of victims or their families is “not mandatory in criminal appeals challenging convictions under the POCSO Act.” However, such involvement becomes essential when the accused seeks bail or suspension of sentence.

“Before suspending the sentence, it is essential to hear the victim’s family regarding any potential harassment, threats, or coercion by the accused post-conviction.” He cautioned that without such notice; courts may remain uninformed about critical developments affecting the victim’s safety.

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“It is clarified that involving the victim or their parents is not necessary in criminal appeals challenging the convictions under the POCSO Act. However, their impleadment is essential in regular bail applications under Section 483 BNSS (Section 439 Cr.P.C.) and suspension of sentence application under Section 430 BNSS (Section 389 Cr.P.C.).” The Court further directed that notices should be served to the victim’s parents or complainant through addresses provided by the State Counsel rather than directly to the child victim. “To protect the victim’s interest. The Courts may direct the District Legal Services Authority or State Legal Services Authority or the High Court Legal Services Committee to provide legal assistance through their panel Advocates.”

“It is crucial to ensure the victim is not made a party in any proceedings or applications under the POCSO Act, and no direct notice should be served to them.”

Advocates Representing the Parties

For the Petitioners: Mr. G. Karuppasamypandiyan, Advocate; Mr. A. Karthick Kumar, Advocate; Mr. D. Venkatesh, Advocate
For the Respondent: Mr. B. Thanga Aravind, Government Advocate (Criminal Side)

Case Title: Venkateshwaran v. State of Tamil Nadu and connected matters
Case Number: Crl.M.P.(MD)Nos.7809, 11825, and 11926 of 2025 in CRL.A(MD).Nos.136 of 2023 and 936, 949 of 2025
Bench: Justice K. Murali Shankar