‘Has Adverse Impact On Victim’s Psyche’: Delhi High Court Issues Guidelines On Presence Of POCSO Victims During Bail Hearings

The Delhi High Court has issued a slew of directions regarding the presence of POCSO victims during bail hearings, observing that the same has an adverse impact on the psyche of the victim.

Justice Jasmeet Singh directed that the victim can be produced virtually before the court, either by the IO or a support person, by way of Video Conferencing or by taking assistance of the District Legal Services Authority (DSLSA).

Observing that the victim and accused will not come face to face in this manner and the same can prevent “victim’s re-traumatization,” the court said that hybrid form of hearing of bail applications would suitably address the concerns of the victim while at the same time safeguarding the rights of accused.

The court directed that the concerned IO shall ensure timely service of notice of bail application on the victim so that she gets reasonable amount of time to enter appearance and make her submissions.

“The Investigating Officer while serving notice/summons of the bail application to the victim/ prosecutrix 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 court said.

It added that 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.

Justice Singh said that where the victim has appeared in court on a date of hearing of a bail application, her presence on subsequent dates can be dispensed with and Rape Crisis Cell (RCC) lawyer or counsel or parent or guardian or a support person, representing her, can be permitted to make submissions on her behalf.

"On the day of the first appearance of the victim/prosecutrix, her submissions qua the bail application can be recorded by the Court and the same maybe used for the purpose of adjudicating on the bail application. The victim’s opinion and objections regarding bail application on the first interaction can be mentioned in the order passed on the day of interaction between the Ld. Judge and the victim and this order can then be relied on at the stage of final disposal of bail application," the court added.

The bench further said that 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.

It further clarified that 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.

“Section 12 of the Juvenile Justice (Care and Protection) Act, 2015 delineate separate parameters for considering grant of bail to children in conflict with law and giving an audience to the prosecutrix will not have any bearing on the same,” the court said.

Other directions are as follows:

- 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 shouldn’t be made. A written authorization of the victim authorising another to make submissions on her behalf (after victim is duly identified by the IO) and said authorization is forwarded by the SHO, should suffice.

- Further, 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.

- It would further be in the fitness of things that the Judicial Officers are 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, instead of insisting for appearance of the victim in person (either virtually/physically).

- Judicial Officers maybe sensitized to the extent that Practice Directions issued by the Hon’ble High Court of Delhi on 24.09.2019 and judicial directions in “Reena Jha v. Union of India” and “Miss ‘G’ (Minor) through her Mother v. State of NCT of Delhi” were issued to ensure that victim doesn't remain unrepresented or unheard when the question of granting bail to the accused is being considered. However, it wasn’t meant to invariably call for presence of victim on all dates of hearing in bail application so that the process itself becomes a punishment for the victim by exposing her to the accused/ his counsel frequently and reopening her emotional and psychological wounds.

The court directed the Secretary (Litigation) of DSLSA to circulate the order to all necessary parties and stakeholders.

Previously, the court had expressed concern over a situation wherein POCSO victims are being forced not only to "potentially interact with the accused person" but also be present in court when the arguments regarding the offence are being taken up for hearing.

"The psychological impact on a POCSO victim being present in Court during the arguments is grave as there are allegations, accusations, doubting the integrity, character, etc. of the prosecutrix, her family, etc. 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.

Accordingly, the DHCLSC, DSLSA and Advocate Adit Pujari had been directed to give "suggestive practice directions".

As the "suggestive practice directions" were forwarded to court, Justice Singh agreed with the same and said that the same may help in reducing the trauma of POCSO victims, if implemented in its true letter, spirit and intent.

The court took suo motu note of the of the issue during the hearing of an appeal challenging conviction of an accused in a POCSO case. Justice Singh directed the appeal to be listed in due course.

Title: X v. STATE

Citation: 2023 LiveLaw (Del) 62