Nipun Saxena V Union Of India: An Emphasis On Section 23 Of The POCSO Act 2012

Date:
11 December 2018

Bench:
Deepak Gupta, Madan B Lokur

Parties:
Petitioner: Nipun Saxena
Respondent: Union of India and Ors

Subject

The Supreme Court has laid down certain guidelines upon violation of Section 23 of the POCSO act 2012 to safeguard the interest and self-respect of a minor victim.

Important Provisions

The important provisions in this regard section 23 of POCSO Act 2012 and 228A IPC 1860. The petition was filed to ensure non-disclosure of name and identity of victims affected by crimes under 376A, 376AB,376B,376C,376D,376DA,376DB,376E both major and minor victims. The proceedings to be conducted in camera and in case of children victims in children friendly courts.

Issue

How to ensure non-disclosure of Identity of child victims under section 23 of POCSO act 2012 to be read with section 228a of IPC 1860 along with section 24(5)and 33(7) of POCSO Act 2012.

Analysis

1. The judgement states the delicacy and care the minor victims have to be dealt with, while delivering justice to them. Since they cannot handle the social ostracization, humiliation, implications and complexities the way major victims do, the concerned authorities need to be even more careful.
2. According to section 23 of POCSO Act 2012, news reporters should not comment or identify the victim in any way in any form of media. No whereabouts of the victim that would eventually lead to divulging of identity would be published. The identity of the child must be published only when it is done for the best interest of the child and that has to be reasoned out in writing by the special court. The publisher of such sensitive information will be jointly and severally liable with the owner of the media house for divulging identity of the victim.
3. The section states penal provision for offenders as follows: Six months of imprisonment which may extend to one year or fine or both. Serving crime reports is one of the duties of the media houses, but they should be careful while observing their duty, they must not sensitize the news to generate Television Rating Points out of them. The media should refrain from talking to the victim often as it would trigger traumatic experience and be detrimental to the psyche of the victim.
4. The special courts should be children friendly (Section 33 (4) of POCSO Act 2012) and be friendly to the litigant as the actual court atmosphere causes the litigant to be scared. They tend to get unnerved and the truth is not brought before the court. The statute here means “living child”, that is, the identity of a living child victim to be hidden. Butthat does not allow dead victim’s identity to be divulged on grounds to generate public sentiment or mass resentment against the crime committed. Dead victim’s posthumous dignity should be reserved. The identity of victim of unsound mind or dead should not be divulged upon authorization by next kin unless given by chairman or secretary of social welfare organization(Sec 228A (c) IPC 1860). The guidelines for safeguarding the interests and identity of child victims has been laid down in Bijoy v State of West Bengal. The guidelines were as follows:

• Child victims (the person whom they trust , have confidence) should be given a free copy of the registered Fir, by the police officer or special juvenile police unit (Section 19). They should be provided with legal assistance by the District Legal Services Authority they are unable to arrange for one(Section 40).
• The police officer upon an FIR sent the victim to immediate medical examination under section 27 of the POCSO Act and ensure recording of victims statement under section 25 of the act.Incase, the child is sick, the special juvenile police unit will send the child for rehabilitation and medical examination.
• Officer in charge of police station and investigating officer shall not disclose the identity of the victim and the recording of statement of the victim should take place in his/ her place of convenience (Section 24, 25, 27). The proceedings should be in camera and the identity of the victim could be divulged only under express permission of the Special court for the interest of justice.
• The evidence of the victim should be promptly recorded, screening the victim from the accused (section 36). The evidence should be recorded in a child-friendly atmosphere, with breaks in between, in presence of parents, without delay. The defence, should submit its questions for cross examination in writing to the court and these questions should be asked in a non-offensive manner, in a descent way easily comprehensible by the victim. There should be no character assassination, of the victim, that would in turn cause emotional harm to the child.
• If, the child is unable to physically attend the hearing of the court or stays far off, the statement would be recorded through the means of video conferencing.
• The special court upon an FIR or commission of an offence under the act should enquire about the immediate needs of the victim for rehabilitation, relief or interim compensation. In case the offender is absconding and cannot be traced, whether convicted or not, the court is satisfied that that the victim has faced reasonable loss is entitled to compensation. The quantum of compensation is determined by the nature of loss injury suffered by the victim laid down in Rule 7(3) of POCSO rules 2012 and should not be restricted to minimum limits in Victim Compensation Fund.
• The case proceedings should not be protracted and the trial should be concluded within a year from taking cognizance.

Conclusion

The landmark judgement has laid down important pointers not only in favor of non-disclosure of victim identity, but also laid guidelines to ensure litigant -friendly atmosphere to child victims. “BHAROSA” in Hyderabad is one such step towards achieving a “one stop center” which is litigant friendly for the child as well as women victims of sexual offences.

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