Published on :19 Jan, 2023, 10:32 am
The Delhi High Court recently issued a set of guidelines to shield survivors under the Protection of Children from Sexual Offences Act (POCSO Act) who have to physically appear in court during arguments on bail and face the accused [Babu Lal v State].
Justice Jasmeet Singh said that the psychological impact on a POCSO survivor being present in court during the arguments is grave as there are allegations, accusations and aspersions case on the integrity and character of the prosecutrix and her family.
“The presence of the prosecutrix victim in Court at the time of arguments, according to me, has an adverse impact on the psyche of the prosecutrix. The prosecutrix is forced to be present in Court with the accused, who is the same person who has allegedly violated her. It was felt that it would be in the interest of the victim that she is not traumatized again and again by re-living the said incident by being present in Court proceedings,” the Court said.
The judge, after taking into consideration the suggestions from the advocate Adit S Pujari, Delhi High Court Legal Services Committee (DHCLSC) and Delhi State Legal Services Authority (DSLSA) issued the following guidelines:
- The investigating officer (IO) shall ensure timely service of notice of bail application on the victim/ prosecutrix, so that she gets reasonable amount of time to enter appearance and make her submissions;
- The IO, while serving notice/summons shall make relevant inquiries about the victim and her circumstances and shall document the same in order to assist the court in the hearing of the bail application and to facilitate effective representation and participation on behalf of the victim. The IO should ensure that while making such enquiries the victim is not made to feel uncomfortable or questioned like an accomplice to a crime;
- The victim can be produced virtually before the Court (either by the IO/ Support person before the Court) (by way of Video Conferencing) or by taking assistance of the DLSA District Legal Services. Victim and the accused shall not come face to face in this manner and this can prevent the re-traumatization of the victim;
- If the victim gives it in writing that her counsel/ parent/guardian/ support person shall appear on her behalf and make submissions on the bail application, insistence on physical or virtual presence of the prosecutrix should not be made. A written authorization of the victim authorising another to make submissions on her behalf (after victim is duly indentified by the IO) and said authorization is forwarded by the SHO, should suffice.
- If the victim has appeared in court on one date of hearing of a bail application, her presence on subsequent dates can be dispensed with.
- In certain exceptional cases, in- chamber interaction with the victim can be done and her submissions qua the bail application can be recorded in the order sheet passed on that day, so that the same maybe considered at a later stage.
- While recording the submissions/ objections/ statement of the victim qua the bail application, appropriate questions may be put to the victim to elicit her responses instead of bluntly asking her “Do you want bail to be given to the accused or not?” Rather questions can be put to her to ascertain what her apprehensions and fears are in case the accused is granted bail in the matter, for bail is to be granted by the Court concerned based on overall appreciation of facts and circumstances of the case and in the light of well settled principles governing the grant of bail.
- Whenever the victim comes to court for a hearing on the bail application, the support person provided to her should be present with her so as to provide the necessary psychological or logistical support to the victim/prosecutrix.
- Victim’s presence may not be insisted on in cases under POCSO Act, where the accused is a child in conflict with law, because the considerations for grant of bail to the child in conflict with law are not dependent on the apprehensions of the prosecutrix.
- After the bail application is disposed of, the copy of the order should be mandatorily sent to the victim. This becomes important since the victim’s main concern is her safety in case the accused is enlarged on bail. By providing her a copy of the bail order the victim is made aware about the status of the accused and the conditions of the bail and her right to approach the court for cancellation of bail in case of breach of conditions of bail.
Judicial Officers should be sensitized about the need to reduce interface of victim with the accused in court to the minimum possible and to permit victim to be represented through an authorised person in court at the time of hearing of bail application.
Justice Singh directed the Secretary (Litigation) DSLSA to the circulate the order to all the necessary parties and stakeholders.
Advocates Adit S Pujari and Aparajita Sinha represented the appellant in the case.
State was represented through Additional Public Prosecutor (APP) Manjeet Arya
Advocate Astha appeared for the prosecutrix.
Secretary (Litigation) DSLSA, Harshita Mishra also joined the proceedings.
