Madras High Court
All India Democratic Women'S vs The State Of Tamil Nadu on 4 July, 2014
Bench: V.Ramasubramanian, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.07.2014
CORAM
THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN
and
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
Writ Petition (MD) No.6106 of 2014
All India Democratic Women's
Association Rep. by its District
Secretary S.K.Ponnuthai,
24, Sarvodhaya Nagar,
Mahaboob Palayam, Madurai-6. ...Petitioner
Vs.
1.The State of Tamil Nadu, rep.by
the Home Secretary,
Fort St., George, Chennai.
2.The Superintendent of Police,
Madurai District.
3.The Deputy Superintendent of Police,
Samayanallur, Madurai District.
4.S.Arokiasami
5.K.Amali Rose
6.Shanmuga Kumarasami ...Respondents
Petition filed under Article 226 of the Constitution of India praying
for issuance of a Writ of Mandamus, directing the 1st respondent to issue
guidelines regarding trial procedures to be followed in pending trials of
child sexual abuse cases in tune with the POCSO Act and Rules 2012 to the
investigating and prosecuting agencies.
!For Petitioner : Ms.U.Nirmalarani
For Respondents 1-3 : Mr.B.Pugalenthi, SGP
For Respondent-4 : Mr.J.Selvam
For Respondents 5 & 6 : Mr.M.Gnanagurunathan
:O R D E R
(Order of the Court was made by V.RAMASUBRAMANIAN,J) The All India Democratic Women's Association, which is known through out the country by its acronym AIDWA and which spearheads the movement for emancipation of women through out India, has come up with the above writ petition, in public interest, seeking the issue of a Writ of Mandamus to direct the first respondent to issue guidelines regarding trial procedures to be followed in pending trials of child sexual abuse cases in tune with the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act).
2. We have heard Ms.U.Nirmala Rani, learned counsel for the petitioner, Mr.B.Pugalenthi, learned Special Government Pleader for the respondents 1 to 3, Mr.J.Selvam, learned counsel for the fourth respondent and Mr.M. Gnanagurunathan, learned counsel for the respondents 5 and 6.
3. A complaint of child sexual abuse was lodged in Crime No.331 of 2011 on the file of the Koodal Nagar Police Station against the fourth respondent herein at the instance of the mother of a girl student. After about two months, the victim's father filed two writ petitions in W.P. (MD) Nos.8355 and 12572 of 2011 on the file of this Court, praying inter alia
(i) for the constitution of a Special Investigation Team for effective investigation of the case in the light of the guidelines issued by the Supreme Court in two cases and
(ii) for the grant of compensation of Rs.2 lakhs to his daughter, for rehabilitation.
4. In the first instance, the learned Judge, before whom both the writ petitions came up for hearing, directed the Child Welfare Committee, Madurai to investigate into the matter, after taking the assistance of a Child Psychiatrist and to file a report before this Court. The State was also directed to file a report with regard to the constitution of State Commission in terms of the Commission for Protection for Child Rights Act, 2005.
5. The Child Welfare Committee investigated into the matter and filed a report. Based upon the report and the counter affidavit filed by the respondents as well as the submissions made by all the counsel, K.Chandru,J disposed of both the writ petitions by a common order dated 7.3.2012. The order contains several directions with regard to (i) change of investigation
(ii) appointment of Special Public Prosecutor, (iii) payment of compensation to the victim and (iv) certain directions for monitoring of the case.
6. Thereafter, the investigation was completed and a final report was filed before the Third Additional Sessions Court, (PCR) Madurai. The charge sheet was taken on file by the Court in S.C.No.51 of 2013. The Court issued summons to the victim for the commencement of the trial on 3.2.2014. It appears that the District Secretary of the petitioner Association as well as the counsel for the petitioner accompanied the children to the Court. But, the case was adjourned on the ground of non appointment of a Special Public Prosecutor. The infrastructure in the Court of the Third Additional Sessions Judge, were grossly inadequate to take care of these child victims of sexual abuse.
7. Therefore, taking advantage of the recent Enactment of the POSCO Act and the issuances of Rules thereunder, the petitioner has come up with the above writ petition, seeking the following relief:-
?Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus directing the 1st respondent to issue guidelines regarding trial procedures to be followed in pending trials of child sexual abuse cases in tune with the POCSO Act and Rules 2012 to the investigating and prosecuting agencies?.
8. In the above writ petition, we directed the learned Special Government Pleader to take notice and get instructions on the question as to why the appointment of Special Public Prosecutor has been delayed. In the meantime, we also ordered notice to the private respondents. After service of notice, the private respondents have entered appearance through counsel.
9. In so far as the appointment of Special Public Prosecutor is concerned, it is represented by Mr.B.Pugalenthi, learned Special Government Pleader that the District Collector has recommended the appointment of one Special Public Prosecutor and that the Government is likely to pass an order very soon. Therefore, one portion of the prayer made in the writ petition is likely to get redressed very soon from the Government itself.
10. The other portion of the relief sought for by the petitioner relates to the issue of proper guidelines regarding trial procedures, in tune with the POCSO Act and the Rules framed thereunder.
11. But, in so far as this aspect is concerned, it is contended by the learned Special Government Pleader as well as the learned counsel for the private respondents that the guidelines issued by the Supreme Court in Delhi Democratic Working Women's Forum Vs. Union of India [(1995) 1 SCC 14] and Sakshi Vs. Union of India [(2004) 5 SCC 518], which are extracted by K.Chandru,J in the common order dated 7.3.2012 are themselves sufficient. Moreover, it is contended that the penal law like the POCSO Act, 2012 cannot be given retrospective application to an offence committed much before the Enactment and in respect of which, the charges have already been framed before the Criminal Court.
12. However, it is contended by Ms.U.Nirmala Rani, learned counsel for the petitioner that though the detailed procedure prescribed in the POCSO Act, 2012 and the Rules framed thereunder cannot be simply adopted, there is no prohibition in law for amplifying the guidelines already issued in Sakshi, so that the accused-friendly atmosphere in a courtroom could be neutralized. The learned counsel invited our attention to a decision of the Delhi High Court in Virender Vs. State of NCT of Delhi, [delivered on 29.9.2009 in Crl.A.No.121 of 2008] and the ?Guidelines for Recording of Evidence of Vulnerable Witnesses in Criminal Matters prepared by the United Nations Office on Drugs and Crime?.
13. The learned counsel for the respondents 5 and 6 submitted that any guideline or procedure evolved by this Court should not create inroads into the rights of the accused to a fair trial guaranteed under Article 22 of The Constitution. The learned counsel submitted that the participation of the accused in the trial with full rights to cross examine the witnesses, is part and parcel of the right for a fair trial. Therefore, the learned counsel for the contesting respondents requested this Court to throw this writ petition out on the ground that the guidelines already issued in Sakshi were sufficient to take care of the rights of the victims.
14. We have carefully considered the rival submissions.
15. We have specifically restrained ourselves from narrating the facts that led to the filing of the first writ petition in W.P(MD)No.8355 of 2011. Since the trial is about to commence, we thought fit not to make any reference to the facts leading to the charge sheet, lest it may be contended that the Trial Court was influenced by any reference made by us in this order.
16. Therefore, keeping the factual matrix of the case assailed, what is to be decided in this case is as to whether this Court should issue more detailed guidelines to the Criminal Court for the conduct of the trial by drawing inspiration from the guidelines contained in the POCSO Act, 2012 or not.
Guidelines issued by Courts
17. Before the advent of the POSCO Act, 2012, the guidelines issued by the Supreme Court in State of Punjab v. Gurmit Singh [1996 (2) SCC 384] and the directions issued in Sakshi [(2004) 5 SCC 518] alone held the field.
18. In State of Punjab Vs. Gurmit Singh [1996 (2) SCC 384], the Supreme Court held as follows:-
"The expression that the inquiry into and trial of rape "shall be conducted in camera" as occurring in Sub-Section (2) of Section 327 Cr.P.C. is not only significant but very important. It casts a duty on the Court to conduct the trial of rape cases etc. invariably "in camera". The Courts are obliged to act in furtherance of the intention expressed by the Legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327 (2) and (3) Cr.P.C. and hold the trial of rape cases in camera. It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar a surroundings. Trial in camera would not only be in keeping with the self- respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood. The High Courts would therefore be well advised to draw the attention of the trial courts to the amended provisions of Section 327 Cr.P.C. When trials are held in camera, it would not be lawful for any person to print or publish any matter in relation to the proceedings in the case, except with the previous permission of the Court as envisaged by Section 327 (3) Cr.P.C. This would save any further embarrassment being caused to the victim of sex crime. Wherever possible it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the Courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases. The Courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout. In the present case, the trial court has repeatedly used the name of the victim in its order under appeal, when it could have just referred to her as the prosecutrix. We need say no more on this aspect and hope that the trial Courts would take recourse to the provisions of Sections 327 (2) and (3) Cr.P.C. liberally. Trial of rape cases in camera should be the rule and an open trial in such cases an exception."
19. After quoting with approval, the aforementioned directions issued in Gurmit Singh, the Supreme Court improved upon those guidelines, in its decision in Sakshi. Paragraphs 32 and 34 of the decision in Sakshi, which were incorporated by K.Chandru,J in his order dated 7.3.2012, read as follows:-
"32. The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation, he or she may not be able to give full details of the incident, which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the Presiding Officer of the Court, who may put the same to the victim or witnesses in a language, which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of Sub-Section (2) of Section 327 Cr.P.C should also apply in inquiry or trial of offences under Sections 354 and 377 IPC.
.........
34. The writ petition is accordingly disposed of with the following directions:
(1) The provisions of Sub-Section (2) of Section 327 Cr.P.C., shall, in addition to the offences mentioned in the Sub-Section, also apply in inquiry or trial of offences under Sections 354 and 377 IPC.
(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;
(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident, should be given in writing to the Presiding Officer of the Court, who may put them to the victim or witnesses in a language, which is clear and is not embarrassing;
(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required. These directions are in addition to those given in State of Punjab Vs. Gurmit Singh."
20. Taking clue from the directions issued by the Supreme Court in Gurmit Singh and Sakshi, the Delhi High Court issued more elaborate guidelines in Virender v. State of NCT of Delhi [Crl.A.No.121 of 2008 dated 18.9.2009]. In paragraph 50 of the said decision, the Delhi High Court pointed out that the courtrooms are normally crowded places, whose occupants include hardened criminals as well. The courtroom environment is unfamiliar and unfriendly to a child, who is required to testify as a witness. The trauma of the child victim gets aggravated by the atmosphere prevailing in the courtroom and hence, the testimony of such a witness is prone to be brittle, facilitating a skilful defence lawyer to make a mincemeat of the evidence. In such circumstances, the Delhi High Court issued a set of directions to the police as well as to Courts trying such offences. Some of the directions given by the Delhi High Court to the Trial Courts are as follows:
?i) to provide separate rooms within the premises where the statement of the witness could be recorded.
ii) in case of any disability of the victim impairing communication skills, assistance of an independent person could be taken.
iii) the trial should invariably be in camera, even if no request is made in this behalf.
iv) the child witness should be permitted to testify from a place in the courtroom, which is other than the one normally reserved for other witnesses.
v) To minimise the trauma of a child victim or witness, the testimony may be recorded through video conferencing or by way of a closed circuit television. If this is not possible, a screen or some arrangement be made so that the victims or the child witness do not have to undergo seeing the body or face of the accused. The screen, which should be used for the examination of the child witness or a victim, should be effective and installed in such manner that the witness is visible to the Trial Judge to notice the demeanour of the witness. Single visibility mirrors may be utilised, which, while protecting the sensibilities of the child, shall ensure that the defendant's right to cross examination is not impaired. (Ref : Sakshi Vs. UOI).
vi) As far as possible, avoid disclosing the name of the prosecutrix in the court orders to save further embarrassment to the victim of the crime;
anonymity of the victim of the crime must be maintained as far as possible throughout.
vii) The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in writing. (Ref : Court On Its Own Motion Vs. State of N.C.T. of Delhi).
(viii) The Trial Judge may permit, if deemed desirable, to have a social worker or other friendly, independent or neutral adult, in whom, the child has confidence to accompany the child, who is testifying [Ref : Sudesh Jakhu Vs. K.C.J. & Ors (1998 Crl.L.J. 2428)]. This may include an expert, supportive of the victim or child witness, in whom the witness is able to develop confidence, to be permitted to be present and accessible to the child at all times during his/her testimony. Care should be taken that such person does not influence the child's testimony.
(ix) Persons not necessary for proceedings including extra court staff be excluded from the courtroom during the hearing.
(x) Unless absolutely imperative, repeated appearance of the child witness should be prevented.
(xi) It should be ensured that questions, which are put in cross examination, are not designed to embarrass or confuse victims of rape and sexual abuse (Ref : Sakshi Vs. UOI).
(xii) Questions to be put in cross examination on behalf of the accused, in so far as they relate directly to the offence, should be given in writing to the Presiding Officer of the court, who may put them to the victim or witnesses in a language, which is clear and is not embarrassing. (Ref :
Sakshi Vs. UOI).
(xiii) The examination and cross examination of a child witness should be carefully monitored by the Presiding Judge to avoid any attempt to harass or intimidate the child witness.
(xiv) It is the duty of the Court to arrive at the truth and subserve the ends of justice. The Courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses. The Judge has to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, the Court can control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The Court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency. Upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the Judge must exercise the vast powers conferred under Section 165 of the Evidence Act and Section 311 of the Cr.P.C., to elicit all necessary materials by playing an active role in the evidence collecting process. [Ref : Zahira Habibulla H.Sheikh & Anr. Vs. State of Gujarat & Ors.(2004 (4) SCC 158)].
(xv) The Court should ensure that there is no use of aggressive, sarcastic language or a gruelling or sexually explicit examination or cross examination of the victim or child witness. The Court should come down heavily to discourage efforts to promote specifics and/or illustration by any of the means offending acts, which would traumatise the victim or child witness and affect their testimony. The Court should ensure that no element of vulgarity is introduced into the courtroom by any person or the record of the proceedings.
(xvi) In order to elicit complete evidence, a child witness may use gestures. The Courts must carefully translate such explanation or description into written record.
(xvii) The victim of child abuse or rape or a child witness, while giving testimony in Court, should be allowed sufficient breaks as and when required. (Ref : Sakshi Vs.UOI) (xviii) The Judge should be balanced, humane and ensure protection of the dignity of the vulnerable victim. There should be no expression of gender bias in the proceedings. No humiliation of the witness should be permitted either in the examination in chief or the cross examination. (xix) A case involving a child victim or child witness should be prioritised and appropriate action taken to ensure a speedy trial to minimise the length of the time, for which, the child must endure the stress of involvement in a court proceeding. While considering any request for an adjournment, it is imperative that the Court considers and gives weight to any adverse impact, on which the delay or the adjournment or continuance of the trial would have on the welfare of the child?.
21. It appears that despite the existence of the guidelines and directions issued by the Supreme Court in the aforesaid two cases, the Delhi High Court felt obliged to issue more elaborate guidelines, which we have extracted in the preceding paragraph, by drawing inference from the "UN Model on Justice in Matters Involving Child Victims and Witnesses of Crime"
published by the United Nations Office on Drugs and Crime, Vienna.
22. A broad outline of the guidelines contained in the United Nations Model Law is furnished as follows:
(1) These guidelines define several expressions such as ?Court House Tour, Descriptive Aids, Live Link, Special Measures, Testimonial Aids, Secondary Victimization, etc. (2) Paragraph 7 of the guidelines deals with identification of stress causing factors of adversarial Criminal Justice System. They are as follows:
?7. Identification of stress causing factors of adversarial Criminal Justice System:-
Factors, which cause stress on child witness, rendering them further vulnerable witnesses and impeding complete disclosure by them shall, amongst others, include:-
(i) Multiple depositions and not using developmentally appropriate language.
(ii) Delays and continuances
(iii) Testifying more than once
(iv) Prolonged/protracted court proceedings
(v) Lack of communication between professionals including police, doctors, lawyers, prosecutors, investigators, psychologists, etc.,
(vi) Fear of public exposure
(vii) Lack of understanding of complex legal procedures.
(viii) Face to face contact with the accused
(ix) Practices are insensitive to developmental needs
(x) Inappropriate cross examination
(xi) Lack of adequate support and victims services
(xii) Sequestration of witnesses, who may be supportive to the child
(xiii) Placement that exposes the child to intimidation, pressure or continued abuse
(xiv) Inadequate preparation for fearless and robust testifying
(xv) Worry about not being believed especially when there is no evidence other than the testimony of the vulnerable witness (xvi) Formality of court proceedings and surroundings including formal dress of members of the judiciary and legal personnel.?
(3) Paragraph 13 of the guidelines provides for a pre-trial visit of the witnesses to the Court along with a support person to enable the witnesses to familiarise themselves with the layout of the Court, the location of the accused in the dock, the role of the officials, the location of the witness box and run-through of basic court procedure, etc. (4) Paragraph 14 entitles a Judge to meet a vulnerable witness suo motu, in the presence of the prosecution and defence lawyer or in their absence, before they give an evidence for explaining the court process.
(5) Paragraph 18 obliges the Court to allow the presence of support persons. If the support person happens to be a witness, his or her testimony should be recorded as per paragraph 19, ahead of the testimony of the child.
(6) Paragraph 20 requires the Court to appoint a facilitator to assist the vulnerable witnesses effectively. Paragraph 23 obliges the Court to provide a waiting area for vulnerable witnesses along with the support person and the lawyer. Paragraph 24 imposes a duty upon the Court to provide vulnerable environment. It requires to be reproduced. Hence, it is reproduced as follows:
?24. Duty to provide comfortable environment:-
It shall be the duty of the Court to ensure comfortable environment for the vulnerable witness by issuing directions and also by supervising the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child witnesses, support persons, guardian ad litem, facilitator and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies, may be turned to facilitate his testimony, but the opposing party and his counsel must have a frontal or profile view of the child even by a video link, during the testimony of the child. The witness chair or other place from which the child testifies, may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. While deciding to make available such environment, the Judge may be dispensed with from wearing his judicial robes?.
(7) Paragraph 26 requires a reasonable period of relief to the vulnerable witness while making deposition. The guidelines also provide measures to protect the privacy and well being of the child victim and witnesses.
(8) Paragraphs 28 to 31 deal with directions for Criminal Court Judges, the necessity to allow proceedings to be conducted in camera and provision of screens, one way mirrors etc. Paragraphs 28, 29 and 31 are extracted as follows :
?28. Directions for Criminal Court Judges:-
i) Vulnerable witnesses shall receive high priority and shall be handled as expeditiously as possible, minimizing unnecessary delays and continuances (Whenever necessary and possible, the court schedule will be altered to ensure that the testimony of the child victim or witness is recorded on sequential days, without delays).
ii) Judges and court administrators should ensure that the developmental needs of vulnerable witnesses are recognized and accommodated in the arrangement of the courtroom.
iii) Separate and safe waiting areas and passage thereto should be provided for vulnerable witnesses
iv) Judges should ensure that the developmental stages and needs of vulnerable witnesses are identified, recognized and addressed throughout the court process by requiring usage of appropriate language, by timing hearings and testimony to meet the attention span and physical needs of such vulnerable witnesses by allowing the use of testimonial aids as well as interpreters, translators, when necessary.
v) Judges should be flexible in allowing the vulnerable witnesses to have a support person present while testifying and should guard against unnecessary sequestration of support persons.
vi) Hearings involving a vulnerable witness may be scheduled on days/time when the witness is not inconvenienced or is not disruptive to routine/regular schedule of child.
29. Allowing proceedings to be conducted in camera
i) When a vulnerable witness testifies, the Court may order the exclusion from the courtroom of all persons, who do not have a direct interest in the case including members of the Press. Such an order may be made to protect the right to privacy of the vulnerable witness or if the court determines on the record that requiring the vulnerable witness to testify in open court would cause psychological harm to him, hinder the ascertainment of truth or result in his inability to effectively communicate due to embarrassment, fear or timidity.
ii) In making its order, the Court shall consider the developmental level of the vulnerable witness, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires and the interests of his parents or legal guardian.
iii) The Court may, motu proprio, exclude the public from the courtroom, if the evidence to be produced during trial is of such character as to be distressing, personal, offensive to decency or public morals. .........
31. Provision of screens, one-way mirrors, and other devices to vulnerable witness from accused:-
The Court may, suo motu or on an application made even by the prosecutor or the guardian ad litem, order that the chair of the vulnerable witness or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying. The Court shall issue an order stating the reasons and describing the approved courtroom arrangement?.
(9) Paragraph 33 deals with the mode of questioning, which reads as follows:
?33. Mode of questioning :
To facilitate the ascertainment of the truth, the Court shall exercise control over the questioning of vulnerable witness.
i) ensure that questions are stated in a form appropriate to the developmental level of the vulnerable witness;
ii) protect vulnerable witness from harassment or undue embarrassment and
iii) avoid waste of time by declining questions, which the Court considers unacceptable due to their being improper, unfair, misleading, needless, repetitive or expressed in language that is too complicated for the witness to understand.
iv) the Court may allow the child witness to testify in a narrative form
v) questions shall be put to the witness only through the Court.?
23. Thus, in the non-statutory regime, we had the benefit of the guidelines and directions issued by the Supreme Court in two cases and the guidelines issued by the Delhi High Court in Virender. But, in the year 2012, the POSCO Act came into force and together with the guidelines issued by the Ministry of Women and Child Development, in terms of Section 39 of the Act, the provisions of the Act imposed an obligation upon the Courts to follow the procedure laid down therein. Therefore, let us now turn our attention to the guidelines contained in the provisions of the POCSO Act, 2012. Provisions of POCSO, Act 2012
24. After nearly 20 years of adoption of Convention on the Rights of the Child by the United Nations General Assembly in December 1992, the Parliament came up with Act 32 of 2012 with the object of protecting children from offences of sexual assault, sexual harassment, pornography and providing for the establishment of Special Courts for trial of such offences. One of the objects stated in the Statement of Objects and Reasons is that it was necessary for the proper development of the child that his or her right to privacy and confidentiality is protected and respected by every person by all means and through all stages of a judicial process involving the child.
25. Chapter I of the Act contains provisions relating to the application of the Act and the definitions. Chapter II deals with sexual offences against the children and the punishment prescribed therefor. Chapter III deals with offences relating to the use of children for pornographic purposes and the punishment prescribed therefor. Chapter IV deals with abetment and attempt to commit offences under the Act. Chapter V deals with the procedure for reporting of cases. Chapter VI lists out the procedure for recording the statement of the child, both before the police officer and before the Magistrate under Section 164 of the Cr.P.C. Chapter VII deals with constitution of Special Courts. Section 29 of the Act, which is incorporated in Chapter VII, creates a presumption that a person accused of committing an offence under Sections 3, 5, 7 and 9 had in fact committed the offence, unless contrary is proved. Section 30 creates a presumption of the existence of a culpable mental state. Section 31 makes the provisions of the Code of Criminal Procedure, 1973 applicable to the proceedings before the Special Court to the extent not excluded by the Act. Section 32 obliges the State to appoint a Special Public Prosecutor.
26. Chapter VIII of the Act prescribes the procedure and powers of Special Courts and the recording of evidence. This Chapter contains six Sections from Sections 33 to 38. In brief, the procedure prescribed under Chapter VIII of the Act, from Sections 33 to 38 could be summarised as follows:
?1) The Special Court can take cognizance of offence, without the accused being committed to it for trial, either upon receiving a compliant of facts, which constitute such offence, or upon a police report of such facts.
2) The questions in chief examination, cross examination, and re-
examination, put to the child either by the Special Public Prosecutor or by the counsel for the accused, should be handed over to the Special Court and the Special Court, in turn, should put those questions to the child.
3) The Special Court may permit frequent breaks for the child during trial.
4) The Special Court should create a child- friendly atmosphere by allowing a family member, a guardian, a friend, or her relative, in whom the child has trust or confidence, to be present in Court.
5) The Special Court should ensure that the child is not called repeatedly to testify in the Court.
6) The Special Court should not permit aggressive questioning or character assassination of the child. The dignity of the child should be maintained at all times.
7) The Special Court should ensure that the identity of the child is not disclosed at any time either during investigation or during trial, except for reasons to be recorded, the Special Court feels that such disclosure is in the interest of the child itself.
8) The Special Court shall have all the powers of a Court of Session and follow the procedure prescribed by the Code, in addition to the procedure prescribed in the Act.
9) The evidence of the child should be recorded within 30 days of the Special Court taking cognizance of the offence.
10) The Special Court should complete the trial as far as possible within one year from the date of taking cognizance.
11) The Special Court should ensure that the child is not exposed in any way to the accused at the time of recording of the evidence, even while ensuring that the accused is in a position to hear the statement of the child and communicate with his advocate.
12) The Special Court may record the statement of the child through video conferencing or by utilising single visibility mirrors or curtains or any other device.
13) All cases are to be tried in camera and in the presence of the parents of the child or any other person in whom the child has trust or confidence. If the Special Court is of the opinion that the child needs to be examined at a place other than the court, it shall proceed to issue a commission in accordance with Section 284 of the Code of Criminal Procedure, 1973.
14) Wherever the assistance of a translator or interpreter is necessary, if the child has a mental or physical disability, the Special Court may take the assistance of a special educator or any person familiar with the manner of communication of the child.?
27. Apart from incorporating the above procedure in Chapter VIII of the Act, the Act also contains certain other important provisions. They are as follows :-
?1) The State Government is obliged to prepare guidelines for the use of non Governmental organisations, professionals and experts or persons having knowledge of psychiatric social work, physical health, mental health and the child development to be associated with the pre- trial and trial state to assist the child.
2) Subject to the proviso to Section 301 of the Cr.P.C, the family or the guardian of the child is entitled to the assistance of a legal counsel of their choice and if they cannot afford a legal counsel, the Legal Services Authority should provide a lawyer.
3) The National and State Commissions for Protection of Child Rights are made obliged to monitor the implementation of the provisions of the Act.?
28. The Ministry of Women and Child Development has also issued model guidelines under Section 39 of the Act. These guidelines emphasize the need for a multi-sectorial approach. In Chapter 2 of those guidelines enlisting the general principles for use of professionals and experts assisting the child at the pre-trial and trial stages, it is pointed out that the child victims have a right to be protected from hardship during the judicial process. The judicial process should not become secondary victimisation.
29. Chapter 8 of these guidelines deal with various aspects relating to the judicial process, such as free legal aid, appointment of public prosecutor and adoption of child-friendly procedures. These guidelines can be summarised as follows:
(1) Paragraph 1.4 of Chapter 8 indicates that the District Legal Services Authority should draw a panel of qualified and experienced advocates to represent the child victims of sexual abuse. These persons should have conviction, commitment and experience in the field of child rights.
(2) Paragraph 2 of Chapter 8 contains detailed guidelines as to what should be done at the pre-trial stage as well as at the trial stage.
Paragraph 2.2 contains the following directives to be followed at the time of trial :
?i) Children have the right to be heard in any judicial and administrative proceedings affecting them
ii) Children have the right to information about the case, in which, they are involved
iii) Ensure ahead of time that equipment is working, recordings can be played and that camera angles will not permit the witness to see the accused
iv) Explain that the Judge or Magistrate can always see the witness over the live video link:
v) Request the Public Prosecutor himself to put questions to the child before the trial and to answer his/her questions:- Judges and Magistrates may also ask, if the child would like to meet them before the trial starts, to help to establish rapport and put the child at ease. Under the POCSO Act, 2012, questions to the child will be routed through the Judge and it would be useful for the child to be familiar with their manner of conversation and vice versa.
vi) Encourage the children to let the Court know, if they have a problem: They may not understand a question or questions that are too fast, or they may need a break. However, many children will not say they do not understand, even when told to do so. Professional vigilance is, therefore, always necessary to identify potential miscommunication and it is the child's counsel, who will have to be mindful of any instance where the child is losing concentration, feeling ill, etc.
vii) Do not ask the child at trial to demonstrate/intimate touching on his/her own body:- This may be construed as abusive. The child can instead be asked to point to a body outline diagram?.
(3) Paragraph 4 of Chapter 8 deals with child-friendly courtrooms and waiting areas, as many children find the courtroom experience intimidating and this intimidation can create stress in child victims. Under these circumstances, a child can be a poor witness and the process of navigating the criminal justice system can compound a child's trauma. The POCSO Act, 2012 provides for a number of child-friendly procedures to be followed in the Special Court. In addition to this, some measures can be put in place in the Special Court to ensure that the child is not defeated by the circumstances.
However, the rights of the accused, for example that of cross-examination of the child, must be protected, while balancing against the rights and needs of these child victims. One of the ways to ensure the child's comfort is that screens are permanently in place in the Special Courts for the witness, who stands for the children. Additionally, the child-friendly courtrooms can be equipped with closed circuit television capabilities, which allow the child to testify in a separate room from the accused. Special waiting rooms should be provided within the court premises to allow the families to wait in privacy throughout the court proceedings.
The case on hand
30. As we have pointed out earlier, the case on hand relates to sexual abuse of minor girls studying in a School. The father of one of the victims himself had earlier come up with two writ petitions in W.P.(MD).Nos.8355 and 12572 of 2011 seeking the constitution of a Special Investigation Team, the payment of compensation and effective prosecution of the accused. Both the writ petitions were disposed of by K.Chandru,J, by an order dated 07.3.2012.
31. The salient features of the order passed by K.Chandru,J, are as follows:
(i) The investigation has to be done by a Women Police Officer not below the rank of Deputy Superintendent of Police;
(ii) The child victims are to be protected as per the directions contained in paragraphs 32 and 34 of the decision of the Supreme Court in Sakshi;
(iii) Due to the sensitivity that is expected of the Court while dealing with the child victims, the Investigating Officer need not all over again record the statements already recorded under Section 161(3);
(iv) The Court should not allow the children to be brought again and again;
(v) The Court should prevent the accused or the counsel for the accused from cross examining the child victims directly;
(vi) The guidelines set out in paragraph 34 of the decision in Sakshi should be borne in mind;
(vii) The Government should appoint a Special Public Prosecutor as per the mandate of Section 26 of the Commissions for Protection of Child Rights Act, 2005; and
(viii) The Superintendent of Police, Madurai Rural, should personally monitor the progress of the case by calling for fortnightly reports from the Investigating Officer.
32. As we have pointed out earlier, POSCO Act, 2012, came into effect only after the decision of K.Chandru,J. The Act contains several important provisions, some of which are substantial in nature and the others procedural in nature. As we have pointed out from paragraph 24 onwards, the provisions of the Act go to the extent of creating a presumption not only of the commission of offence, but also of the existence of culpable mental state. The provisions of such a serious nature impinging upon the valuable rights of the accused, cannot take retrospective effect. Therefore, there cannot be a blanket direction to the trial Court to follow all the provisions of the POSCO Act, 2012, while dealing with this case. But, some of the procedural aspects, which are found in Chapter 8 of the Act, have already been incorporated in the decisions of the Supreme Court in Gurmit Singh and Sakshi. They have already become the law of the land by virtue of Article 141 of the Constitution. Therefore, we are of the considered view that without directing the trial Court to follow all the provisions of the POSCO Act, 2012, certain directions could be issued, which will be in tune with the directions already issued by the Supreme Court in Gurmit Singh and Sakshi and which was followed by K.Chandru,J, in his order dated 07.3.2012.
33. Therefore, the writ petition is disposed of, with the following directions:
(i) The Principal District Judge, Madurai, shall assign the case for trial to one of the Additional Courts, which is presided over by a woman Judicial Officer of great sensitivity to handle cases of this nature;
(ii) The proceedings shall take place in camera;
(iii) Since in many of the trial Courts in this State, it has become the practice (virtually a malpractice) for the lawyers to gather around the witness stand while the cross examination of victims of sexual abuse takes place, the Judicial Officer shall ensure that such things do not happen and intimidatory tactics are not adopted by the counsel for the accused;
(iv) The Court shall allow frequent breaks for the child during the trial and create a child friendly atmosphere by allowing a family member, a guardian, a friend or her relative in whom the child has trust or confidence, to be present when the evidence of the victims is recorded. Since the counsel for the petitioner herein appears to have gained the confidence of the children, she may be permitted to be present during trial;
(v) The Court shall ensure that the child is not repeatedly summoned for testifying in the Court. Once a date is fixed for the cross examination of the child victims, the counsel for the accused shall deem it as part of his duty towards Court and towards society to go ahead with the cross examination;
(vi) The Court shall not permit aggressive questioning or character assassination of the child. The Court shall protect the dignity of the child at all times;
(vii) The Court shall ensure that the identity of the child is not disclosed;
(viii) The media shall be prevented from either photographing the child victims or publicising the names or other particulars about the victims;
(ix) The Court shall ensure that the child is not exposed to the accused at the time of recording of the evidence. Probably, a screen shall separate the victim from the accused. But, it shall be ensured that the accused is in a position to hear the statement of the child, so that the accused can give necessary instructions to his counsel; and
(x) The Court shall complete the trial as far as possible within a period of six months.
No costs. Consequently, MP(MD) No.1 of 2014 is closed.
To
1.The Home Secretary, Government of Tamil Nadu, Fort St. George, Chennai.
2.The Superintendent of Police, Madurai District.
3.The Deputy Superintendent of Police, Samayanallur, Madurai District..