Delhi Commission for Women v. Delhi Police [Delhi High Court, Division Bench] W.P.(Crl.) 696 of 2008
Facts: The Delhi High court in this order, issued guidelines related to effective tackle sexual offenses to doctors, police, session courts etc.
Guardian is defined as including, besides natural guardian, support person or any person appointed by child welfare committee for a specified period to handle the case of victim during the pendency of the trial.
The rape victim, 11-year-old, was living with her sister at her aunt’s house. Considering the aunt herself had a large family, the victim was recommended to be moved to private shelter home under the recommendation of Child Welfare committee, where the aunt, will be given the visitation rights and will be the guardian of the child.
Another 4-year old, who was raped by her father, was also moved to shelter home along with her mother.
Delhi High Court’s ‘Guidelines for Recording of evidence of vulnerable witnesses in criminal matters’
(See guideline 15)
In order to improve the response of the justice dispensation system to vulnerable witnesses (a child who has not completed 18 years of age), the Delhi High Court has issued guidelines which will be applicable to every criminal court in Delhi. Under these guidelines the court can appoint guardian ad litem as a support person to accompany and assist the vulnerable witness to testify and attend judicial proceedings. The guardian ad litem may be a member of the bar/ practicing advocate (including parent of the child, if qualified) who is familiar with the judicial process, social service programs, and child development.
It is the duty of such as guardian to: attend all trial proceedings in which the vulnerable witness participates; considering the impact of the proceedings on the child, make recommendations to the court regarding well-being of the child; explain to the vulnerable witness all legal proceedings and assist the witness and their family in coping with the emotional effects of crime & subsequent proceedings the child is involved in; and remain with the vulnerable witness while the vulnerable witness waits to testify. Further, the guardian can make appropriate requests to the court concerning the protection, privacy, and well-being of the child witness; apply to the court seeking orders that the testimony of the child be taken in a room outside the courtroom; and may view audio or video tapes of a vulnerable witness which is under a protective order.
Facts: In this case, the Petitioner submitted that her daughter who was stated to be sixteen years of age, was in wrongful confinement and custody of a shelter home. The daughter of the petitioner had allegedly complained to the police station against her brother, that he had raped her. The statement of the minor daughter of the petitioner was also recorded before the Court. The daughter of the petitioner was also produced before the Child Welfare Committee at Mayur Vihar. Since then, the minor daughter has been housed in a shelter home. The petitioner sought her release being the natural guardian.
The Court directed the release of the minor girl to the petitioner.
Decision: The Court observed as follows:
“10. It may be noticed that the UN Office on Drugs and Crime, Vienna, UN, New York 2009 has published ‘The UN Model Law on Justice in matters involving Child Victims and Witnesses of Crime’ wherein Guidelines for recording of evidence of vulnerable witnesses in criminal matters have been formulated to enable them to give their best evidence in criminal proceedings. Paras 15 and 16 of the guidelines provide for ‘Appointment of Guardian ad litem’ and ‘Duties of Guardian ad litem’, respectively, read as under:
“15. Appointment of Guardian ad litem.-
The Court may appoint any person as guardian ad litem as per law to a witness who is a victim of, or a witness to a crime having regard to his best interests after considering the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of bar / practicing advocate, except a person who is a witness in any proceeding involving the child.
16. Duties of guardian ad litem:
It shall be the duty of the guardian ad litem so appointed by court to:
(i) attend all depositions, hearings, and trial proceedings in which a vulnerable witness participates.
(ii) make recommendations to the court concerning the welfare of the vulnerable witness keeping in view the needs of the child and observing the impact of the proceedings on the child.
(iii) explain in a language understandable to the vulnerable witness, all legal proceedings, including police investigations, in which the child is involved;
(iv) assist the vulnerable witness and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved;
(v) remain with the vulnerable witness while the vulnerable witness waits to testify;”
11. Additionally, as per guideline no.17, a vulnerable witness would be entitled to legal assistance.
12. Having regard to the facts of the present case, taking into consideration the submission made by counsel for the parties and in view of the Guidelines for recording of evidence of vulnerable witnesses in criminal matters, we direct that the custody of the minor daughter of the petitioner shall be handed over to the petitioner forthwith, however, having regard to the guidelines for recording of evidence of vulnerable witnesses in criminal matters, more particularly guidelines no.15 and 16, which are reproduced in the paragraphs aforegoing, we appoint Ms.Somy Harshan, Welfare Officer, as a guardian ad litem for the minor daughter of the petitioner. Ms.Somy Harshan would be entitled to take all necessary steps to safeguard the interest of the minor daughter of the petitioner. She would be guided by Rule 16 of the aforestated guidelines. In view of Guidelines no.17, we authorise Ms.Somy Harshan, guardian ad litem, to approach the Delhi High Court Legal Aid Society for legal assistance for the minor daughter of the petitioner. We are also informed that an NGO being ‘Counsel to Secure Justice’ is providing legal assistance to the daughter of petitioner. We further direct the parents of the minor daughter to permit and grant free access to the minor daughter to visit a counsellor once in every two weeks for a period of two months and thereafter once in a month or as and when the child deems proper.
13. We also direct W/ASI Urmila, No.4284/D, P.S. Chanakya Puri, to visit the house of the petitioner once in fifteen days for a period of two months to make an assessment of the well being of the minor daughter of the petitioner and in case she finds that the child is being harassed she would be entitled to approach the Welfare Officer for proper remedy. W/ASI Urmila will submit a report to the concerned SHO.”
Facts: In this case, a minor girl aged 12 years and her brother aged 9 years were in the care and custody of the petitioner guardian appointed by the CWC. A case under Section 376, IPC and Section 6, POCSO Act had been filed against the minor girl’s father. By an application, the petitioner sought setting aside of orders dated 21st December, 2016 and 26th October, 2016 whereby the application for inspection of records filed by the petitioner on behalf of Minor ‘X’ was dismissed by the Additional Sessions Judge on the ground that the petitioner had no locus standi to make such application and inspect the records, as the petitioner was not the natural guardian. Thereafter, again an application for inspection of record was filed before the learned Additional Sessions Judge, bringing on record the order dated 9th November, 2016 of CWC appointing the petitioner as the Guardian of Minor ‘X’, which was also dismissed vide the impugned order dated 21st December, 2016.
“20. In the present case, since the father of Minor ‘X’ was the accused and the mother had abandoned the family and remarried, the Child Welfare Committee (CWC) had rightly appointed the petitioner as the guardian of Minor ‘X’ as there was no natural guardian. The Learned Additional Sessions Judge opined that CWC had the power to appoint a guardian only for the proceeding before it which is contrary to the interpretation of the word “guardian” as now defined under Section 2 (31) of the JJ Act, 2015 wherein the words ‘before that authority’ have been consciously deleted. Even if the Learned ASJ was of the opinion that a guardian appointed by the CWC cannot act as a guardian in the proceedings before it, the Court should have appointed a Guardian Ad Litem for the proceedings going on before it. Despite the fact that the learned Additional Sessions Judge was under a constitutional obligation and bound by the decisions of the Supreme Court and this Court laying down guidelines to be followed and mandated the Court to ensure that the victim had a guardian ad litem and was given legal representation, the learned Additional Sessions Judge failed to comply with the same by not only not recognizing the guardian so appointed by the Child Welfare Committee but also by not appointing a guardian ad litem.
21. The repeated advertence of the learned Additional Sessions Judge in the impugned orders that the guardian was not a family member fails to notice that the mother of the victim had abandoned her and the father was the accused. Learned Additional Sessions Judge also not only failed in its constitutional and statutory obligation but also failed to exercise its parens patriae jurisdiction for watching the best interest of the child victim.
22. Consequently, the impugned orders passed by the learned Additional Sessions Judge are set aside. Ms. Lavanya Anirudh Verma who is Director of Samarpan Homes for Girls which fact has been verified by the State will act as guardian ad litem for the child victim and would thus be permitted to exercise all rights in the interest of the child victim. At any stage of the proceedings if the Trial Court finds that the ‘Guardian Ad Litem’ is either not taking due care of the legal proceedings or acting contrary to the best interest of the child, the court would then pass appropriate orders as per the mandate noted above.”