Trial Procedure

Under the POCSO Act, Rules and judgments, special provision has been made for trials. Sections 33 to 38 of the POCSO Act contain detailed guidance to Special Courts trying POCSO cases. Some key provisions in the POCSO Act pertaining to trials are set out below:

  1. The Court will try to conclude trial within 1 year from the date of taking cognizance of the offence.
  2. Trial will take place in-camera.
  3. Recording statement through video-conferencing.
  4. Creation of a child-friendly atmosphere.
  5. Child not to be called repeatedly to testify.
  6. Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector.
  7. Police officer to not be in uniform while recording the statement of the child.
  8. The statement of the child to be recorded as spoken by the child.
  9. Assistance of special educator or any person familiar with the manner of communication of the child in case child is disabled.
  10. Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.
  11. In case the victim is a girl child, the medical examination shall be conducted by a woman doctor.
  12. If required, frequent breaks for the child during trial.
  13. No aggressive questioning or character assassination of the child.

This section contains a summary of some of the important judgments on this issue.

Sakshi and Ors. v. Union of India (UOI) and Ors., 2004 (5) SCC 518 [Supreme Court of India, 2 Judge Bench]

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This writ petition was filed under Article 32 of the Constitution by way of public interest litigation, by Sakshi, which was an organisation to provide legal, medical, residential, psychological or any other help, assistance or charitable support for women, in particular those who are victims of any kind of sexual abuse and/or harassment, violence or any kind of atrocity or violation and is a violence intervention center.

The Court upheld the directions that had been passed in the landmark case of State vs. Gurmeet Singh and issued the following directions in addition:

“(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.”

Mahender Chawla and Ors. v. Union of India (UOI) and Ors., 2019 (14) SCC 615 [Supreme Court of India, 2 Judge Bench]

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In this case, a writ petition had been filed before the Supreme Court of India. The Supreme Court was dealing with the law and practice of witness protection in India.

The Court directed the Union of India as well as States and Union Territories to enforce the Witness Protection Scheme, 2018 in letter and spirit.
With regard to the directions issued in the case of Sakshi vs. Union of India, the Court developed on the same observing:

“29. As pointed out above, in Sakshi’s case, the Court had insisted about the need to come up with a legislation for the protection of witnesses. It had even requested the Law Commission to examine certain aspects, which resulted to 172nd review of rape laws by the Law Commission. However, the Court specifically rejected the suggestion of the Law Commission regarding examination of vulnerable witnesses in the absence of Accused. Having regard to the provisions of Section 273 of the Code of Criminal Procedure, which is based on the tenets of principle of natural justice, that the witness must be examined in the presence of the Accused, such a principle cannot be sacrificed in trials and in inquiries regarding sexual offences. In such a scenario examination of these witnesses through video conferencing provides the solution which balances the interest of the Accused as well as vulnerable witnesses.”

Daniel Anandrao Gawai v. State of Gujarat, MANU/GJ/0675/2018 [High Court of Gujarat, Single Judge]

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Facts: In this case, the Applicant was seeking transfer of case so also seeking trial under Section 474 of the Code of Criminal Procedure. The applicant was charged with committing offences under Section 354A IPC and Sections 8, 9(f) and 10 of the POCSO Act. It was alleged that he was unable to defend his case himself, that the situation in the Court was quite hostile. He was unable to proceed with the matter, which otherwise was his indefeasible right.

While affirming the right of fair trial, the Court deemed it fit to give directions by striking a balance for ensuring the right of victim and that of the petitioner laying down the following guidelines for the conduct of the trial:

“(a) let there be an atmosphere for free and fair trial;

(b) requisite number of security personnel shall be deputed at the time of trial;

(c) the directions issued by the Apex Court in the case of Sakshi (supra) shall be followed, which will include in camera trial;

(d) to represent the victim prosecutrix not more that one or two advocates shall be permitted and the petitioner is directed to proceed with the trial without causing any further hurdles. He shall also maintain the decorum of the Court and of the Court proceedings;

(e) Necessary courtesy, which is expected to be shown to the Presiding Officer and the Court official should be shown;

(f) The Presiding Officer shall also ensure that, in no manner, the applicant is physically or otherwise harmed during the process. Any delay on the part of the applicant will entitle the Presiding Officer to close his right.”

Bijoy v. The State of West Bengal, MANU/WB/0140/2017 [High Court of Calcutta, Single Judge]

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Facts: This was an appeal against a conviction of offence punishable under Section 8 of the POCSO Act. The Lower Court had sentenced the Appellant to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 5,000 in default to undergo rigorous imprisonment for three months more.

The conviction was upheld.

Decision: The High Court also observed that in contravention of the prevailing statutory principles and case law on the issue, the identity of the victim had been disclosed.
It followed the principles laid down by the Supreme Court in Sakshi vs. Union of India and State of Punjab vs. Gurmit Singh and issued the following directives:

The following directives are issued to the investigating agencies, prosecutors and the Special Courts so that the aforesaid provisions of law are followed in letter and spirit and fundamental right of dignity of a child victim and other basic human rights are preserved:-

“1. Police Officer or the Special Juvenile Police Unit receiving complaint as to commission or likelihood of commission of offence under the Act shall forthwith register the same in terms of Section 19 of the Act and furnish a copy free of cost to the child and/or his/her parents and inform the child or his/her parents or any person in whom the child has trust and confidence of his/her right to legal aid and representation and if the child is unable to arrange for his/her legal representation, refer the child to the District Legal Services Authority for necessary legal aid/representation under section 40 of the Act. Failure to register First Information Report in respect of offences punishable under sections 4, 6, 7, 10 & 12 of POCSO shall attract penal liability under section 166-B of the Indian Penal Code as the aforesaid offences are cognate and/or parimateria to the Penal Code offences referred to in the said penal provision.

2. The Police Officer on registration of FIR shall promptly forward the child for immediate emergency medical aid, whenever necessary, and/or for medical examination under section 27 of the Act and ensure recording of the victim’s statement before Magistrate under Section 25 of the Act. In the event, the Police Officer or the Special Juvenile Police Unit is of the opinion that the child falls within the definition of “child in need care and protection” as defined under Section 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000, the said Police Officer or the Special Juvenile Police Unit shall forthwith forward the child to the jurisdictional Child Welfare Committee for providing care, protection, treatment and rehabilitation of the child in accordance with law.

3. Whenever a registration of FIR is reported to the Special Court, the Special Court shall make due enquiries from the investigating agency as to compliance of the aforesaid requirements of law as stated in (1) and (2) above and pass necessary orders to ensure compliance thereof in accordance with law, if necessary.

4. Officer-in-Charge of the police station and the investigating officer in the case including the Special Juvenile Police Unit shall ensure that the identity of the victim is not disclosed in the course of investigation, particularly at the time of recording statement of the victim under section 24 of the Act (which as far as practicable may be done at the residence or a place of choice of the victim or that of his/her parents/custodian, as the case may be), his/her examination before Magistrate under section 25 of the Act, forwarding of the child for emergency medical aid under section 19(5) and/or medical examination under section 27 of the Act.

5. The investigating agency shall not disclose the identity of the victim in any media and shall ensure that such identity is not disclosed in any manner whatsoever except the express permission of the Special Court in the interest of justice. Any person including a police officer committing breach of the aforesaid requirement of law shall be prosecuted in terms of section 23(4) of the said Act.

6. Trial of the case shall be held in camera in terms of section 37 of the Act and evidence of the victim shall be promptly recorded without unnecessary delay and following the procedure of screening the victim from the accused person as provided in section 36 of the Act. The evidence of the victim shall be recorded by the Court in a child friendly atmosphere in the presence of the parents, guardian or any other person in whom the child has trust and confidence by giving frequent breaks and the Special Court shall not permit any repetitive, aggressive or harassive questioning of the child particularly as to his/her character assassination which may impair the dignity of the child during such examination. In appropriate cases, the Special Court may call upon the defence to submit its questions relating to the incident during cross-examination in writing to the Court and the latter shall put such questions to the victim in a language which is comprehensible to the victim and in a decent and non-offensive manner.

7. In the event, the victim is abroad or is staying at a far off place or due to supervening circumstances is unable to physically attend the Court to record evidence, resort shall be taken for recording his/her evidence by way of video conference.

8. The identity of the victim particularly his/her name, parentage, address or any other particulars that may reveal such identity shall not be disclosed in the judgment delivered by the Special Court unless such disclosure of identity is in the interest of the child.

9. The Special Court upon receipt of information as to commission of any offence under the Act by registration of FIR shall on his own or on the application of the victim make enquiry as to the immediate needs of the child for relief or rehabilitation and upon giving an opportunity of hearing to the State and other affected parties including the victim pass appropriate order for interim compensation and/or rehabilitation of the child. In conclusion of proceeding, whether the accused is convicted or not, or in cases where the accused has not been traced or had absconded, the Special Court being satisfied that the victim had suffered loss or injury due to commission of the offence shall award just and reasonable compensation in favour of the victim. The quantum of the compensation shall be fixed taking into consideration the loss and injury suffered by the victim and other related factors as laid down in Rule 7(3) of the Protection of Children from Sexual Offences Rules, 2012 and shall not be restricted to the minimum amounts prescribed in the Victim Compensation Fund. The interim/final compensation shall be paid either from the Victim Compensation Fund or any other special scheme/fund established under section 357A of the Code or any other law for the time being in force through the State Legal Services Authorities on the District Services Authority in whose hands the Fund is entrusted. If the Court declines to pass interim or final compensation in the instant case it shall record its reasons for not doing so. The interim compensation, so paid, shall be adjusted with final compensation, if any, awarded by the Special Court in conclusion of trial in terms of section 33(8) of the Act.

10. The Special Court shall ensure that the trial in cases under POCSO is not unduly protracted and shall take all measures to conclude the trial as expeditiously as possible preferably within a year from taking cognizance of the offence without granting unreasonable adjournment to the parties in terms of section 35(2) of the Act.”

Court On Its Own Motion v. State, 2018 (251) DLT 383 [Delhi High Court, Division Bench]

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Facts: Reference was made by Principal Magistrate, Juvenile Justice Board-I, Kingswaycamp, New Delhi, to High Court of Delhi on several legal issues in terms of investigation of sexual assault cases of Women and Children and specifically to the issue of the permissibility and legality of recording of multiple statements/versions of a victim of sexual assault, both women and children, by an investigating officer/judicial officer.

Decision: Result of the Reference:

Q.No. 1: What is the legality of recording a statement or version of the incident enumerated by a victim of sexual offence by an NGO or a private counsellor and filing of such statement or counselling report along with a chargesheet before the trial court under Section 173 of the Cr.P.C.?

(i) A statement under the POCSO Act can be made only to a police officer or a magistrate, and;
(ii) Provisions of the POCSO Act or the JJ Act do not contemplate any report to be made by a counsellor. It further makes it explicitly clear that counselling report/notes of the counsellor (as well as any person or expert recognized under the POCSO Act and Rules of 2012 and the JJ Act) are confidential in nature and the same cannot be made a part of the chargesheet or otherwise on the trial court record.

The Court after discussing detailed scheme of trial under POCSO Act, have observed that:

“75. The aforesaid provisions of Acts make it explicitly clear that counselling report/notes of the counsellor (as well as any person or expert recognized under the POCSO Act and Rules of 2012 and the JJ Act) are confidential in nature and the same cannot be made a part of the chargesheet.

76. The counsellor at best has the duty of facilitating the victim and disclosure of any kind made by the victim to the counsellor is confidential in nature. The notes prepared during the counselling by the counsellor as well as his report are completely confidential and cannot be made part of the chargesheet or the record of the trial court in a case under POCSO Act, 2012.”

Q.No. 2: What is the permissibility and legality of recording of multiple statements/versions of a victim of sexual assault, both women and children, by an investigating officer/judicial officer?

(i) The law allows the investigating agencies to record multiple statements of the victims. There is no prohibition on recording multiple statements by the police.
(ii) A seemingly contradictory initial account is not a reason in itself to disbelieve the subsequent accounts by the victims. The multiple statements placed by the investigating agency should be carefully scrutinized by the Trial Courts in order to ensure that complete justice is done.

The Court observed in this regard that:

“84. Where children are concerned, the disclosure normally would tend to be a process, rather than a single incident or episode. It would take multiple interviews for an investigator or an interviewer to even establish trust in the mind of the child. Unfortunately, we have been unable to evolve any guidelines with regard to investigation and prosecution of cases of child sexual abuse which are the subject matter of POCSO Act, 2012, though the Central Government has suggested the following in the POCSO Model Guidelines :

“The dynamics of child sexual abuse are such that often, children rarely disclose sexual abuse immediately after the event. Moreover, disclosure tends to be a process rather than a single episode and is often initiated following a physical complaint or a change in behaviour. In such a situation, when the child finally discloses abuse, and a report is filed under the POCSO Act, 2012 more information will have to be gathered so that the child‟s statement may be recorded.
Information so obtained will become part of the evidence.

Child Sexual Abuse and Disclosure- NSW Government – Family and Community Service – Dr Catherine Esposito, Practice Research Office of the Senior Practitioner Programs and Service Design – Chapter 2: Definitions, typologies and models of disclosure. (Allnock & Miller, 2013).
However, given the experience that the child has gone through, he is likely to be mentally traumatized and possibly physically affected by the abuse. Very often, law enforcement officers interview children with adult interrogation techniques and without an understanding of child language or child development. This compromises the quality of evidence gathered from the child, and consequently, the quality of the investigation and trial that are based on this evidence.
The interviewing of such a child to gather evidence thus demands an understanding of a range of topics, such as the process of disclosure and child-centred developmentally-sensitive interviewing methods, including language and concept formation. A child development expert may therefore have to be involved in the management of this process. The need for a professional with specialized training is identified because interviewing young children in the scope of an investigation is a skill that requires knowledge of child development, an understanding of the psychological impact sexual abuse has on children, and an understanding of police investigative procedures.

Such a person must have knowledge of the dynamics and the consequences of child sexual abuse, an ability to establish rapport with children and adolescents, and a capacity to maintain objectivity in the assessment process. In the case of a child who was disabled/ physically handicapped prior to the abuse, the expert would also need to have specialized knowledge of working with children with that particular type of disability, e.g. visual impairment, etc.”….”

89. We may at this stage also advert to the provisions of Section 164 (5)(A) of the Cr.P.C. which mandates that the statement of a victim under Section 354, 354A-D, 376(1) and (2) as well as Section 376A-E or Section 509 of the IPC shall be recorded as soon as the commission of the offence is brought to the notice of the police.

90. A seemingly contradictory initial account is not a reason in itself to disbelieve the subsequent accounts by the victims. The multiple statements placed by the investigating agency should be carefully scrutinized by the Trial Courts in order to ensure that complete justice is done.”

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