With Directions, Without Orders And Wait: Difficulties For Special Courts (POCSO) To Suo-Moto Follow The Bijoy V. State Of West Bengal, 2017?

(III) RECEIPT OF INFORMATION AND RESPONSE ……………

(b) Response of Local Police

SHO and other responsible staff of Delhi Police should immediately respond to a call or complaint involving offences against women or children and treat the entire city as his jurisdiction to begin with. The process of recording a complaint or statement, inspection of spot, getting medical help, identifying the accused and his apprehension (if sufficient evidence) etc. should commence immediately and jurisdiction decided later. All supervisory formations will ensure that constant briefing of police officers is ensured so that a call or complaint is responded to promptly without getting deterred by jurisdictional issue. If a complainant is not duly attended to or prompt police response is not provided on grounds of jurisdiction, strict disciplinary action should be taken.

………………

emphasis supplied

The above standing order of Delhi Police at least on paper, if not in actual as pervasive, universally serves as the panacea for all the practical problems faced in registration of F.I.R. concerning issues of overlapping and mixed jurisdictions, which do otherwise exist as seen across states and union territories. However, the subject matter revolves around the central question when one significant judgement by a Hon'ble High Court gets its application limited to its territorial jurisdiction for want of persuasive acceptability and adoption of such judicial precedent by the other Hon'ble Courts in the country. The situation turns even grimmer when not only the provisions of the law are not put into effect simplicitor as a regular measure of justice dispensation, and the persuasive value of the judicial precedent is not adopted, but a wait is ensued for the direct superior authority to order in that regard to move the wheel of justice ahead, except for instances of forced aberrations as are generally found fed due to public uproar, media glare and one having financial as well as emotional capacity to pursue the quest for justice ferociously. In any case, the reasons could be strong lying in favour of not following the same by the concerned Hon'ble Courts and whether it would so justify that stand, shall be subject to carefully studying the judgments and the directions contained therein.

Well, every story has its highlights, but what missed in the fine lines is always an impending emergency with notice. The judgment of the Hon'ble Supreme Court of India in the matter of Nipun Saxena Vs. Union of India and Ors. (2019) 2 SCC 703 holds the message in true sense, as when one studies the para no. 38 contained therein, another path seems opened up for the implementing agency like police as well as judicial bodies in realizing the provisions of the Protection of Children from Sexual Offences Act, 2012, howsoever the same is remained unpaved presumably due to myriad reasons, one being non-inclination to tide with persuasive non-binding precedent and the other one being the wait for the materialization of binding duty imposed upon the Juvenile Justice Committees of the Hon'ble High Courts (as against the Hon'ble Special Courts themselves) to act in pursuance of such directions contained in Annexure-I to the judgement. The relevant para no. 38 of the judgement is reproduced hereinbelow for ready reference:

38. In the case of Bijoy v. State of West Bengal, the Calcutta High Court has given a detailed judgment setting out the reasons while dealing with the provisions of POCSO and held that neither during investigation nor during trial the name of the victim should be disclosed. The Calcutta High Court has also given other directions to ensure that the provisions of the law are followed in letter and spirit, and the fundamental rights of a child victim and other basic human rights are protected. We are in agreement with all these directions. Though some of the issues dealt with in these directions do not strictly arise in this case, keeping in view the fact that we are dealing with the rights of children, we are annexing the directions issued by the Calcutta High Court as Annexure1 to this judgment. We request all the Chairpersons and Members of all the Juvenile Justice Committee of all the High Courts in the country to go through the judgment of the Calcutta High Court and the directions issued therein and they may issue similar directions, keeping in view the particular needs of each High Court/State.

emphasis supplied

Since the judgement came from the Hon'ble Supreme Court of India without carrying the mandatory direction, the same cannot be ignored for any reason even with the use of the term 'may' which cannot indicative of any alternative choices being set on liberty to be so made or exercised when the Hon'ble Court was found to be in agreement with them as stated explicitly. But without going into the aspect of, as to whether any directions have been so issued by the Juvenile Justice Committees of the Hon'ble High Courts in India, the question arises concerning the feasibility of practical execution of such directions, if Hon'ble Special Courts (POCSO) were to start adopting them as prima facie reliance in a concerted manner, the same being discussed herein against each such direction issued by the Calcutta High Court in the case of Bijoy v. State of West Bengal, 2017 Cri.L.J.3893 through appropriate post decision comments:

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 166B of the Indian Penal Code as the aforesaid offences are cognate and/or pari materia to the Penal Code offences referred to in the said penal provision.

In terms of Section 19 of the Protection of Children from Sexual Offices Act, 2012 (as amended from time to time and as in force and hereinafter referred to as 'POCSO Act' in short), nowhere does the word 'complaint' gets a mention. The same appears only in Section 33 of the Act which is synonymous with Section 200 of the Code of Criminal Procedure, 1973 (as amended from time to time and as in force and hereinafter referred to as 'Cr.P.C.' in short). The same should always be used as 'information' in pari materie with Section 154 of the Cr.P.C. and in continuation thereof, such direction also misses upon the component of 'knowledge that such an offence has been committed' as provided for in Section 19 of the Act. The interesting and much needed inclusion is the furnishing of copy of F.I.R. free of cost, which though gets narrowed down to the 'child and/or his/her parents' only, and therefore the same should be applicable across all informants and provision of copy of F.I.R. to 'child and/or his/her parents' should have been applicable only when the informant is not found to be a child as such. In the end, it is found that Section 166B of the Indian Penal Code, 1860 (as amended from time to time and as in force and hereinafter referred to as 'IPC' in short) has been stated to be applicable in case of non-registration of First Information Report in respect of offences punishable under sections 4, 6, 7, 10 & 12 of POCSO Act, which should actually be Section 166A of IPC titled 'Public Servant disobeying direction under Law', as may get applicable in such scenarios. The Section 166B of IPC titled 'Punishment for non-treatment of victim' has no direct application in this regard as has been sought to be achieved herein.

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 of (sic) care and protection" as defined under Section 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000, [as suitably modified by the Juvenile Justice (Care and Protection of Children) Act, 2015 (sic)] 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.

From co-joint reading of sub-sections (1), (5) and (6) of Section 19 of the POCSO Act, the incidence to forward the child for immediate medical aid per se or otherwise the medical examination provided for under Section 27 of the Act, does not get triggered only upon the registration of F.I.R., as for the latter, Section 27 clearly provides '…notwithstanding that a First Information Report or complaint has not been registered for the offences under this Act' and therefore the same cannot be straight-jacketed and accordingly calls for ready decision making on the field as per the facts and circumstances of each case. Further, sub-sections (5) and (6) of Section 19 of the POCSO Act, duly allows the Special Juvenile Police Unit or local police to make immediate arrangement to give care and protection (including admitting the child into shelter home or to the nearest hospital) within twenty-four hours of the report, as may be prescribed by rules, and to report the same, without unnecessary delay but within a period of twenty-four hours, to the Ld. Child Welfare Committee and the Hon'ble Special Court, especially the '…..and steps taken in this regard.' The same if read with un-amended POCSO Rules, 2012 when the judgement was so passed, would make it particularly difficult to follow the direction in itself wherein it has been clearly mentioned to act 'in accordance with the law', as the law meant otherwise in intention and in letter too.

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.

The probability in terms of possibility as qualified by the term 'Whenever' in the direction issued i.e. 'Whenever a registration of FIR is reported to the Special Court…', is dependent upon as to whether any occasion did arise calling for care and protection to be given to the child, which could not be given effect to, in entirety or otherwise, by the Special Juvenile Police Unit or local police, or in fact such steps were duly taken by them but more such steps were to be taken as required upon the orders of the Ld. Child Welfare Committee or the Hon'ble Special Court, and if understood in terms of the previous two directions, the same goes against the mandate of the law which gives alternatives to approach Ld. Child Welfare Committee or the Hon'ble Special Court, and therefore it might not be possible always that the Hon'ble Special Court would get informed about the registration of FIR and even if so reported, might not be at the stage when such care and protection were to be realized for the child victim. Practically, it is generally found that the Hon'ble Special Court asks the Special Juvenile Police Unit or local police to first approach the Ld. Child Welfare Committee in accordance with the POCSO Rules notified, before coming there by following the same procedural analogy as the Hon'ble Sessions Court (Children's Court) is also the appellate court for the Ld. Child Welfare Committee in terms of Section 101 of the Juvenile Justice (Care and Protection) Act, 2015 (as amended and as in force).

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.

The direction has additionally fastened the burden concerning non-disclosure of identity of the child victim upon the Officer-in-Charge of the concerned police station along with the Special Juvenile Police Unit, although Section 24 of the POCSO Act, 2012 clearly points out that the same lies upon the Police Officer while recording the statement or the Police Officer making the investigation. Further, the place of recording of statement by the police officer, has encompassed within it, a place of choice of victim's parents/custodian whereas no such thing has been provided by sub-section (1) of Section 24 of the Act. The general embargo placed upon the Police Officer concerning the disclosure of the identity of the victim, as per the statutory provisions, is to secure protection of such identity from 'public media', however yet again the said term being still not defined or even described as such.

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.

The general embargo concerning the disclosure of the identity of the victim, is not fastened only upon the police officer as per Section 23 of the POCSO Act and the same applies to anyone and everyone, however the direction keeps the police officer at the focal point because of the said officer having proximity and privilege of possessing and being acquainted with such details at first or only opportunity made available during the course of investigation or otherwise. In terms of the proviso to sub-section (2) of Section 23 of the POCSO Act, it is not only the express permission of the Hon'ble Special Court being required to allow disclosure of the identity of the child, but rather for reasons to be recorded in writing permitting such disclosure. Further, the underlying basis upon which such disclosure can be permitted is not the interest of justice, but rather the interest of the child. It is important to note that a duty is cast upon the Hon'ble Special Court to ensure that the identity of the child is not disclosed at any time during the course of investigation or trial, in terms of sub-section (7) of Section 33 of the POCSO 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.

The use of the phrase 'without unnecessary delay' in the direction, if read co-jointly with Section 35 of the POCSO Act, it is borne out that the necessary delay as ensued or otherwise occurred in recording of evidence of child (also applicable for trial) along with reasons for such delay, if recorded in writing by the Hon'ble Special Court, shall be found to be in accordance with the law. The term 'screening' is used in the direction as against 'exposed' in sub-section (1) of Section 36 of the POCSO Act, which though operates on a thin line, but may create a situation wherein the child is screened out from the accused but may still be exposed to such accused and therefore may defeat the sheer purpose of the law. Not only the evidence per se, but the entire trial should be conducted in-camera in terms of Section 37 of the Act and in presence of parents of the child or any other person in whom the child has trust or confidence, which includes guardian as such, which has been additionally added in the direction. In contrast to sub-section (3) of section 33 of the POCSO Act, the phrase i.e. 'may, if it considers necessary' has been replaced with mandatory 'shall' concerning the permission or provision of frequent breaks for the child during the evidence, as against the trial being mentioned in the Act. The repetitive questioning as mentioned in the direction, may be related with 'child is not called repeatedly to testify in the court' as is appearing in sub-section (5) of Section 33 of the Act but both conveys different meaning altogether. Interestingly, as contained in the direction that 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, the mandate of sub-section (2) of Section 33 of the POCSO Act, itself requires the learned special public prosecutor or the learned counsel for the accused to communicate the questions to be put to the child to the Hon'ble Special Court, which shall in turn put those questions to the child and therefore what comes out clearly is that the term 'communicate' shall not only mean orally.

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.

The direction exemplifies the general concern of the victim child in not being able to attend the court in person, by giving resort to video-conferencing as is already provided for under sub-section (2) of Section 36 of the POCSO Act.

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.

In terms of the sub-section (7) of Section 33 of the POCSO Act, the Hon'ble Special Court is required to ensure that the identity of the child is not disclosed at any time during the course of investigation or trial, unless such disclosure of identity is in the interest of the child. The explanation attached to the said provision, provides that 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, however the direction specifically points out the same regarding the judgment, which is a part of the trial inherently, however with little changed description so as to prevent instances wherein the Hon'ble Special Courts, by inadvertence, may commit such grave errors having irreparable adverse consequences for 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 of Criminal Procedure, 1973 (sic) or any other law for the time being in force through the State Legal Services Authorities or 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.

The direction presumably paves way ahead with the Hon'ble Special Court receiving information as to commission of any offence under the Act by registration of FIR, which if co-related with practical procedural implications at least in Delhi, would negate the same in totality for the very reason that F.I.R.s registered are never sent to the Hon'ble Special Courts before the filing of charge sheet, unless the investigating agency prefers to move the said court for other reliefs or to file replies to the applications preferred by other parties. The practice as seen of the Investigating Officers/Local Police is to get the signatures of the concerned jurisdictional learned judicial/metropolitan magistrate, as due acknowledgements on the F.I.R.s registered, after a considerable delay i.e. more than 24 hours of registration of report or many a times to get such signatures done in batches of F.I.R.s so as to perfunctorily comply with the requirements of the Section 157 of the Code of Criminal Procedure, 1973 which requires the said local police to forward the reports 'forthwith' without any delay and understood to be not later than 24 hours from the time of such registration. The term 'forthwith' generally implies 'immediate and without delay' has not been delineated in terms of a timeline in the code, but the same is found usually practiced as within 24 hours of the registration of the said report. The said undefined timeline from the provision in the code can be inferred wherein a specific procedure is provided to be adopted in case the investigation cannot be completed within the period of twenty-four hours fixed by section 57 of the code and therefore considering the same to be practically executable, no occasion so arises where the police be allowed to transmit the report to the magistrate with any delay and in particular beyond 24 hours of its registration. The Hon'ble Special Court, in any case, is crippled to move suo-moto as delineated in the direction on this count itself and the same is practically not possible as a regular measure. However, the important addition is the liberty granted to the Hon'ble Special Court in terms of victim compensation that it shall not be restricted to the minimum amounts prescribed in the Victim Compensation Fund.

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.

The use of phrase 'as expeditiously as possible' in the direction is different from 'as far as possible' used in the Act, which is laudatory and practically expedient. However, the use of the term 'preferably' with the time period stands not only against the provision, but also in contradistinction to the direction itself. The Hon'ble Special Court enjoys no preference since it is a special court with special jurisdiction and there arise no such occasion to place preference over one against other subject matter. The adoption of provision of not giving unreasonable adjournments is a beneficial addition to the statutory requirements.

In the light of the above attempted comments concerning the directions issued by the Hon'ble Calcutta High Court and presuming that there have been no such directions issued by Juvenile Justice Committees of the Hon'ble High Courts in India, it shall not be wrong to say that conservative stand found generally taken by the Hon'ble Special Courts in not adopting the persuasive directions suo-moto is explainable as well as acceptable until when the directions, suitably modified by the concerned Hon'ble High Court through its Juvenile Justice Committee are passed to be strictly followed by the subordinate Hon'ble Special Courts designated under Section 28 of the Act. The questions also arise simultaneously in comprehending the nature of directions being issued, which are found to be in teeth with the statutory provisions at some places where even the vires of the provisions vis-à-vis the constitution of India did not find a mention at all in the judgment, as under direct or indirect challenge. But since expressing concerns as well as raising contentions do not, in essence, reach out to the solutions for the problems outlined, and therefore the following broad areas concerning the need to have suitable directions are suggested, which may be found relevant for the appropriate decision making authorities to order, with or without modification and/or adoption, in order to achieve the objects of the POCSO Act, and the same are dealt with, in line with the above mentioned directions so issued:

• The Special Juvenile Police Unit or the local police, as the case may be, shall be required to prominently disclose the date and time of reporting of offence and the date and time of registration of offence, in the report generated as per Section 19 of the Act.
• The Special Juvenile Police Unit or the local police, as the case may be, immediately and without any delay, upon registering a report i.e. First Information Report (commonly known as F.I.R.) as per Section 19 of the Act, shall furnish a certified copy of such report, free of cost to the informant, provided that in case of informant being a child, the same may be furnished to any person in whom the child has trust and confidence including his or her parents, besides the child himself or herself.
• The Special Juvenile Police Unit or the local police, as the case may be, which registers the report shall remain duty bound to send the said report, forthwith and in no case later than 24 hours of such registration, to the jurisdictional Special Court designated under Section 28 of the Act, which is empowered to take cognizance of such offence upon a police report in terms of Section 33 of the Act, as sufficient compliance to Section 157 of the Code of Criminal Procedure, 1973 for all purposes. The said report, henceforth, shall not be sent to or otherwise routed through the concerned judicial/metropolitan magistrate, however the Special Juvenile Police Unit or the local police, as the case may be, shall remain at liberty to send additional copy of the report to the concerned judicial/metropolitan magistrate at its own will. The concerned Officer-in-Charge of the local police and/or the Special Juvenile Police Unit, shall remain personally liable to ensure its compliance in toto.
• The Special Juvenile Police Unit or the local police, as the case may be, which registers the report shall also send the said report, forthwith and in no case later than 24 hours of such registration, to the jurisdictional Child Welfare Committee for necessary information, records and appropriate action in accordance with law.
• The Special Juvenile Police Unit or the local police, as the case may be, as the case may be, which registers the report shall additionally send a copy of the report through email on dedicated email address, created or to be created on servers of National Informatics Centre by the State Legal Services Authority, or otherwise through fax as expeditiously as possible and in no case beyond 24 hours of such registration, to the said Authority so as to enable the concerned District Legal Services Authority to act in accordance with Section 40 of the Act without fail.
• The Special Juvenile Police Unit or the local police, as the case may be, shall report the need of the child for care and protection and steps taken by it till then, to the Special Court as well as the Child Welfare Committee in terms of sub-section (6) read with sub-section (5) of Section 19 of the Act, and the said report shall be called and understood as 'Care and Protection Report' for all purposes. The 'Care and Protection Report' may also be sent along with First Information Report to the Special Court and the Child Welfare Committee, but in no case later than 24 hours of registration of First Information Report.
• The Special Court shall initiate suo-moto miscellaneous proceedings, upon the receipt of the 'Care and Protection Report' filed by the Special Juvenile Police Unit or the local police, and make due enquiries to seek and ensure compliance to the requirements of the Act, particularly concerning Section 19 thereof. The said proceedings shall remain co-terminus with the period of investigation undertaken and may continue only upto to the filing of original charge sheet.
• The Special Court shall first assess and then decide to either initiate suo-moto miscellaneous proceedings for grant of interim compensation to the victim or otherwise mark the said report with 'NCSM (Not Considered Suo-Moto)', immediately without delay and in no case later than 24 hours of the receipt of the report forwarded by the Special Juvenile Police Unit or the local police. The proceedings, if initiated suo-moto concerning the grant of interim compensation to the victim, shall be heard on day to day basis and should be disposed as expeditiously as possible but within a maximum period of 7 days thereinafter and the Special Court shall remain duty bound to seek and ensure compliance of the orders so passed, within a further period of 7 days.
• The Special Court should exercise the powers under Section 36 and 37 of the Act, to get the child examined using video-conferencing or by issuance of commissioners in the event, where the victim is found residing or available outside the territory of the country or is otherwise found staying at a far off place in the country or due to supervening circumstances is unable to physically attend the Court to record evidence.
• The Special Court shall scrupulously follow section 35 of the Act in ensuring completion of recording of evidence of child and disposal of case within the period mentioned and shall record reasons for delay in writing, if any, concerning the former, without fail. The Special Court shall adequately reimburse the diet expenses incurred by the child and other witnesses in terms of the prescribed rules.

The author is an advocate at High Court of Delhi and District Courts-Delhi NCR. He primarily practices in the areas of Access to Justice, Access to Information (RTI), Criminal Laws, Child Rights, Education and Consumer Laws and engages in public policy matters. He can be reached at contact@blackrobeslegal.com].

Views are personal.