POCSO: Victim’s identity shall not be disclosed by anyone
Kolkata, March 9: The High Court of Calcutta issued additional directives to conduct investigation and trial under the Prevention of Children from Sexual Offences (POCSO) Act, 2012, on Thursday.
The court has issued the directives while hearing an appeal against a judgment passed in July 2016. Wherein the appellant was convicted for sexually assaulting an 11-year-old girl.
The court noted that any minor deviation in the evidence of the witnesses, as to which part of the anatomy of the victim was touched, would not bring the act of the accused outside the purview of the offence of sexual assault under Section 7 of the POCSO Act.
The court awarded a compensation of Rs. 75,000 to the victim, to be paid to her parents by the state Legal Services Authority. The court has also modified the sentence awarded to the accused. It awarded him rigorous imprisonment for three years, in view of the fact that he was aged 19 years then, and did not have any criminal antecedent.
The court has noted, with “utmost displeasure”, that certain information on the identity of the victim had been disclosed in the judgment made by the trial court.
“The aforesaid legislative mandate as interpreted by judicial pronouncements create a humanizing impact on the adversarial trial processes in child sex abuse cases and make it imperative that the privacy and other basic human rights of the child victim are scrupulously protected so as to achieve the goal of access to justice to the most vulnerable section of society, namely, children subjected to sexual abuse, in the truest sense,” Justice Joymalya Bagchi thereby observed, while issuing the following directives to the investigation team:
Failure to register FIR
The police officer or the special juvenile police unit, or who ever in a responsible office are entitled to perform certain duties. It is said that on receiving a complaint of offence under the Act, shall register the same in terms of Section 19 of the Act. A copy of the FIR shall be furnished free of cost to the child or his/her parents. The victim may also be referred to the district Legal Services Authority for necessary legal aid/representation under section 40 of the Act. It is also noted that failure to register an FIR for offences punishable under Sections 4, 6, 7, 10 & 12 of the POCSO Act shall attract penal liability under Section 166-B of the Indian Penal Code.
The trial shall be held in camera, in terms of Section 37 of the Act, and the evidence of the victim shall be promptly recorded. The evidence of the victim shall be recorded by the court in a child-friendly atmosphere in the presence of his/her parents, guardian or any other person in whom the child has trust and confidence. Aggressive questioning shall not be permitted in any circumstances. In certain cases, the defense team may be directed to submit its questions for cross-examination to the court, which shall then put forward such questions to the victim, in a language which is understandable to him.
If the victim is unable to attend the court to record the evidence, the same shall be recorded by way of video conferencing.
Immediate Medical AID and Examination
While registering an FIR, the police officer shall immediately proceed with sending the child for medical aid, and/or medical examination under Section 27 of the Act. The Officer is also entitled to ensure that the child’s/victim’s statement is recorded under Section 25 of the Act. If the officer or the investigation team feels and is in 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 child shall be sent to the jurisdictional child welfare committee for providing care, protection, treatment and rehabilitation, abide by law. The special court, on being reported about the FIR, shall make due inquiries from the investigating agency and shall pass necessary orders.
Never disclose victim’s identity
Any officer or the officer-in-charge of the police station shall ensure that the identity of the victim is not disclosed to anyone in any circumstances. This include the investigating officer and the special juvenile police unit. They 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, 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. The recording of statement under Section 24 shall be done, so far as practicable, at the residing place or a place of choice of the victim or that of his/her parents/custodian. The victim’s identity shall not be disclosed in any media, except with the expressed permission of the special court only in the interest of justice. Any person, including a police/investigation officer, disclosing the identity of the victim, shall be prosecuted under Section 23(4) of the Act.
Further, the victim’s identity, particularly his/her name, parentage, address or any other particulars that may reveal the victim’s 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/victim.