Calcutta HC Issues Slew Of Directions To Special Courts To Ensure Smooth & Prompt Examination Of Minor Victims

CAUSE TITLE:
Soumen Biswas @ Litan Biswas Vs State Of WB

DATE OF ORDER:
23 August 2022

JUDGE(S):
JUSTICE JOYMALYA BAGCHI AND JUSTICE ANANYA BANDYOPADHYAY

PARTIES:
Petitioner: SOUMEN BISWAS
Respondents: STATE OF W.B

SUBJECT

This order pertains to a bail application filed by accused charged under section 8 of POCSO Act on the ground that the prosecutrix (minor victim) has not supported the prosecution case in her cross examination. The court issued certain guidelines for treatment of Minor victims of sexual assault in trials.

IMPORTANT PROVISIONS

Protection of Children from Sexual Offences Act

Section 8- Punishment for sexual assault.

Whoever commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

Section 33- Procedure and powers of Special Court

• A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.
• The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross-examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.
• The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.
• The Special Court shall create a child-friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.
• The Special Court shall ensure that the child is not called repeatedly to testify in the court.
• The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.
• The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:

Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.

Explanation.--For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed.

• In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.
• Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session.

BRIEF FACTS

• The accused charged under section 8 of the POCSO Act (hereinafter referred to as ‘act’) had filed a bail application contending that the victim had come up with a different version of the incident during her cross-examination. Hence, not supporting the prosecution case.
• The Additional Public Prosecutor opposed the bail saying that the victim had explicitly narrated the entire incident during her examination in chief. He further addressed that a prayer was made to adjourn the proceedings to cross-examine her which was mechanically allowed. She came up with a different version after 15 days on the day of adjournment. Under these circumstances, the Public Prosecutor made a request to recall the witness which was not allowed.
• The victim is a 13-year-old girl, who during her examination-in-chief stated that the petitioner used to show her obscene pictures and put his hand in her private parts. However, in her cross-examination, she referred to a monetary dispute between her mother and the petitioner and denied the suggestion that he used to sexually exploit her.
• However, the bail was rejected as the trial was at a crucial stage. It was found that it can adversely affect the case as the relatives of the minor victim were yet to be examined. The bail application was rejected.
• The court additionally observed that the examination of the minor victim was not done in accordance with the procedure laid down by Section 33 of the Act.
• The court observed that the section provides for the creation of a child-friendly atmosphere. The examination should be conducted in presence of a guardian. The victim should not be intimidated by asking embarrassing questions. The court is put under a duty to ensure that a child is not repeatedly called for examination.
• The court observed that the trial court lost sight of this procedure. Even the investigating agency failed in its duty as no effort was made to protect her and her family.

ANALYSIS

• The special courts while conducting the trial must keep in mind and implement the safeguards enshrined in section 33 of the act.
• Whenever a minor is brought to court, the judge should strive to ensure that he/ she is examined on the same day itself.
• Along with the witness being won over, long adjournments and the exercise of repeatedly bringing minors to the court to depose about an incident of sexual predation by itself amounts to secondary victimization and created trauma.

CONCLUSION

The court issued some

guidelines which are explained below:

1. The examination of victim shall take place keeping in mind the mandate of section 33 of the act.
2. No adjournment shall be given to any party for examination of the minor victim.
3. Examination of minor shall not be postponed due to cessation of work due to lawyer’s strike if she is present in the court.
4. In the event, that an adjournment is given owing to circumstances pertaining to the minor or beyond the control of the Court, the reason for adjournment must be explicitly stated in the order sheet and it should not span for more than 2-3 days.

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