Rajasthan HC Issues Guidelines For Test Identification Parade In POCSO Cases, Orders Lower Courts For Immediate Implementation in POCSO Trials

The court ruled that special Judges of POCSO Act cases and all the District & Sessions Judges of the State shall ensure the immediate implementation of this order amongst all the judicial officers and all courts in their respective jurisdiction, which are conducting the trial of POCSO Cases

Justice Farjand Ali, while issuing the guidelines for TIP, rejected the bail application of the accused and ordered,

"This order shall be conveyed by the Registry of this Court to all learned special Judges of POCSO Act cases and all the District & Sessions Judges of the State, who shall ensure the immediate implementation of this order amongst all the judicial officers and all courts in their respective jurisdiction, which are conducting the trial of POCSO Cases."

The court observed that though the victim is not supposed to be confronted with the accused and every endeavour should be made to avoid exposure of the victim. The court opined that whenever a situation arises, the identification of the accused should be made through a different mechanism. The accused may be kept in a veiled area and his face should be shown to the prosecutrix on a monitor or screen installed at a distant portion so that the victim can be protected from being frightened after seeing the accused and thereafter the screen can be shut down, added the court.

It was noted by the court that Section 42A of the POCSO Act envisages that the provisions of the special Act shall be in addition to the other existing laws. The court pointed out that in case of inconsistency in between the special law and general law, the provision of the special Act would have an overriding effect upon the general law.

It was added that the latin maxim, 'Generalis Specially bus Non-derogant' which means that general laws do not have an overriding effect over special laws or the general law does not detract from specific law. In other words the maxim' means that for the purposes of incorporation of two statues in apparent conflict, the provisions of a general statutes must yield to those of a special one, added the court.

The court noted that for every problem, there is a solution and in furtherance, remarked,

"For a moment; leave apart the factual and legal aspect of this matter, imagine that a victim have no acquaintance or does not know the accused and she is molested or ravished by an unknown accused then what procedure should be followed? Whether the accused can be left scot-free for the deficit evidence of identification or he should be tried and punished adequately."

Considering it appropriate to lay down a guideline to be followed by the Courts below whenever the fact situation arises like the present matter, until the law is made on this issue, the court remarked,

"The Courts are meant to impart justice and only for that very purpose, it is established. When a situation arises that the victim below 18 years old does not know the accused who ravished her, then of course it is the duty of the Court to evolve a mechanism for the solution of the problem. Certainly, the mechanism must not be in conflict with the special and general law and in all circumstances the same should be in consonance with the prevailing law and criminal jurisprudence."

Guidelines

The court issued following guidelines in respect of Test Identification Parade (TIP) in cases of POCSO Act:

a. In every case where the witness/ victim is a child below the age of 18 years TIP proceedings shall be held in one of the court rooms during the course of trial. No pre-trial identification would be mandatory.

b. Installation of CCTV cameras, computer screen or mechanism in a room where TIP proceedings will be conducted so that the child witness is not confronted face to face with the accused participating in the TIP proceedings.

c. Person accused of the offence and the others having some resemblance with the features of accused; who may be participating in the TIP will be explained the procedure and the manner of TIP proceedings to be held in a case of child witness.

d. The child and the accused should not be at one place in the courtroom, it must be separate, so that he or she may not be exposed directly or confronted.

e. The presiding officer of the court shall show the live streaming of accused standing with other persons in a separate area; to the victim on the monitor/screen. The presiding officer then ask the victim to identify the accused among the others standing with him. As soon the process is done, the screen shall be shut down. The presiding officer then note down the response as well demeanor of the witness in the case file.

f. So far as possible only female officers may be deployed wherever the witness happens to be a girl child for the purposes of identifying the accused person.

g. No police official shall be seen in a uniform right from the stage when the child enters the TIP Room and till he/she leaves the premises after the completion of TIP proceedings. The child witness shall be entitled to accompany his parents/guardians or any of his close relatives so as to make the child comfortable before participating in identifying the accused in the Test Identification Parade.

h. The child friendly atmosphere will be created in a room where the child is brought first and the stay of the child will be made most comfortable so that the child finds the place to be attractive and conducive to his/her requirements.

i. Necessary arrangements for light refreshment to the general liking of children below the age of 16 years shall also remain in place to keep the mood of the child upbeat.

Facts

While hearing the bail plea of the petitioner Suresh, court noticed that the prosecutrix of 16 years old in her statement has stated that the accused was not known to her. During the course of investigation, a photograph was shown by the police just to ascertain his identity, instead of producing him from jail. She has been examined in the trial on 10.08.2021 as PW1 wherein it is deposed by her that a boy named Suresh took her away and raped her.

In this regard, the court had previously inquired why no steps were taken for the purpose of ascertainment of the identity of the accused as well as why the examination was not deferred until the production of the accused. Thereafter, taking resort of Section 36 and 37 of the POCSO Act and relying on M.Kanan v. State of Tamil Nadu [2018 Criminal Law Journal Page 116], it was apprised that for the purpose of maintaining the privacy of the victim of 16 years of age as well as in order to ensure fairness of the trial, she was not exposed to the accused and therefore, the identification was not conducted.

Adv. R.S. Tanwar appeared for the petitioner, while Adv. M.S. Saini, PP. appeared for the state-respondent.

Case Title: Suresh v. State Of Rajasthan, Through Pp

Citation: 2022 LiveLaw (Raj) 80