Protection of Children from Sexual Offences Act [POCSO]
The Act seeks to protect children from offenses such as sexual assault, sexual harassment, and pornography. This Act was amended recently in 2019 where the death penalty was introduced for aggravated penetrative sexual assault in Section 6 of the Principal Act and the minimum punishment was modified to 20 years of rigorous imprisonment.
POCSO Victim: A case analysis of Babu Lal v. State
It was recently stated by the High Court of Delhi in the case of Babu lal v. State that a POCSO victim in the case of sexual assault may not physically appear before the court during the hearing of a bail application filed by the accused facing charges under the Protection of Children from Sexual Offences (herein after referred to as the ‘POCSO’) Act.
It was observed by the High Court that “The psychological impact on a POCSO victim being present in Court during the arguments is grave as there are allegations, accusations, doubting the integrity, character, etc. of the prosecutrix, her family, etc. The presence of the prosecutrix victim in Court at the time of arguments, according to me, has an adverse impact on the psyche of the prosecutrix”.
Justice Singh in the aforesaid case said that the prosecutrix is compelled to appear in court alongside the accused, who is the same person who allegedly violated her. He opined that “it would be in the interest of the victim that she is not traumatized again and again by re-living the said incident by being present in Court proceedings”.
Impact of proceedings on a child psyche
The High Court said that the psychological impact on a POCSO case victim being present in court during the arguments is grave as there are allegations and accusations doubting the integrity and character of the survivor and family. The prosecutrix is forced to be present in court with the accused, who is the same person who has allegedly violated her.
Justice Jasmeet Singh added that it would be in the interest of the victim to not force them to be present in the court again and again to explain the said incident in court proceedings. The Judge said that “…I am in agreement that the said directions, if implemented in true letter, spirit and intent, may help in reducing the trauma of POCSO victims. In this view of the matter and in addition to the practice directions issued earlier, it is further directed that during bail hearings of a POCSO case, the following guidelines shall also be adhered to…,”.
Issuance of guidelines by the High Court
The High Court issued certain guidelines to reduce the trauma of POCSO victims, by providing hybrid and in-chamber hearings, and the Court noted that the victims had to face the accused during the proceedings when they appear physically or virtually in court for bail application hearings of the accused. The Judge said that the directions are to be implemented in their true letter, spirit, and intent may help in reducing the trauma of POCSO victims.
Major Guidelines
- The Investigation Officer (hereinafter referred to as the ‘IO’) needs to ensure that timely service of notice of bail application must be made to the Victim/Prosecutrix to ensure that the victim gets a reasonable time to appear and make her submissions.
- The production of the victim before the Court (either by the IO/ Support person before the Court) may be done virtually or by taking assistance from the District Legal Services Authority, to ensure that the victim does not have to undergo any mental trauma.
- A hybrid hearing of the bail applications would address the concerns of the victim and it shall safeguard the rights of the accused.
- To ensure that that victim will not have to suffer any trauma, it must be taken into consideration that the victim and the accused must not come face to face to prevent the re-traumatization of the victim.
- If the victim gives it in writing that her counsel/ parent/guardian/ support person shall appear on her behalf and make submissions on the bail application, insistence on the physical or virtual presence of the Prosecutrix shouldn’t be made. A written authorization of the victim authorising another to make submissions on her behalf (after victim is duly identified by the IO) and said authorization is forwarded by the SHO, should suffice.
- In exceptional cases and circumstances, in-chamber interaction with the victim can be done and the submissions of the victim with regard to the bail application can be recorded in the order sheet of the court passed on that day so that the same may be considered at a later stage.
- While recording the submissions/ objections/ statement of the victim qua the bail application, appropriate questions may be put to the victim to elicit her responses. The victim should be questioned pertaining to the apprehensions and fears that are there in case the accused is granted bail in the matter, for bail is to be granted by the Court concerned on the basis of overall appreciation of facts and circumstances of the case and in the light of well settled principles governing the grant of bail.
- It may further be clarified that the victim’s presence may not be insisted on in cases under the POCSO Act, where the accused is a child in conflict with the law because the considerations for grant of bail to the child in conflict with the law are not dependent on the apprehensions of the prosecutrix. Section 12 of the Juvenile Justice (Care and Protection) Act, 2015 provides separate parameters that must be considered while granting bail to children in conflict with the law, and the High Court of Delhi noted that giving an audience to the Prosecutrix will not have any bearing on the same, while issued several more practice direction in POCSO Case.
- After the bail application is disposed off, the copy of the order should be mandatorily sent to the victim. The main concern should be the victim’s safety if the accused is released on bail and hence the victim must be sent an order copy. By providing her a copy of the bail order the victim is made aware about the status of the accused and the conditions of the bail and her right to approach the court for cancellation of bail in case of breach of conditions of bail.
- Judicial Officers may be sensitized to the extent that Practice Directions issued by the Delhi High Court of Delhi in the case of “Reena Jha v. Union of India” and “Miss ‘G’ (Minor) through her Mother v. State of NCT of Delhi” wherein the Court stated that it must be ensured that victim doesn’t remain unrepresented or unheard when the question of granting bail to the accused is being considered.
Conclusion
The High Court of Delhi has rightly observed the trauma of a victim during the litigation, when the prosecutrix has to appear again and again either to quote the incident or to answer the questions being asked during the course of litigation.
The High Court has issued the aforesaid guidelines to ensure that the victim should not feel traumatized due to the proceedings and victim’s safety including their psyche must be taken into consideration. This is a very apt. approach of the Court to consider the trauma of the victims and issuing effective guidelines that shall be very helpful for the victim under the POCSO Act.
Court proceedings definitely impact the visitors especially when she is of a tender age. Her child psyche must be taken care of at any cost. Protection of the victim is must. Court has provided good guidelines so as to take care of the victim of the crime.
Death penalty and modifying the minimum punishment to 20 years of rigorous imprisonment is a good step for creating deterrence .
The court has aptly taken of the adverse psychological impact on the victim being present during the arguments, including allegations and accusations doubting the integrity and character of the survivor and family. The victim’s well-being has been nicely taken care of by the court.