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How Lawful Is The Legal Representation Of Victim Child By Multiplicity Of Stakeholders Before Special Courts Designated Under POCSO Law?

Mohit Kumar Gupta
2 Nov 2020 5:02 AM GMT
How Lawful Is The Legal Representation Of Victim Child By Multiplicity Of Stakeholders Before Special Courts Designated Under POCSO Law?
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A child never remains a child anymore, when a crime or series of crime is committed against him[1] for he has seen the other side of the known and unknown perpetrators, although the former rules the statistics. The government, civil society and institutions hailed the implementation of new law i.e. The Protection of Children from Sexual Offences Act, 2012 as amended by The Protection of Children from Sexual Offences (Amendment) Act, 2019[2] (hereinafter referred to and called as 'POCSO Act') read with The Protection of Children from Sexual Offences Rules, 2012 as amended by The Protection of Children from Sexual Offences Rules, 2020 (hereinafter referred to and called as 'POCSO Rules') which, for the first time, as per government notification, issued by Press Information Bureau for the Ministry of Women and Child Development, Government of India on 19th December 2014[3] recognized the significance thereof in the words that "The Act is a comprehensive law to provide for the protection of children from the offenses of sexual assault, sexual harassment and pornography, while safeguarding the interests of the child at every stage of the judicial process by incorporating child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through appointment of Special Public Prosecutors and designated Special Courts." The Hon'ble Supreme Court of India too acknowledged the need for such legislation as an utter necessity to maintain social order through the following observations:

[4]"The very purpose of bringing legislation of the present nature is to protect the children from sexual assault, harassment, and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well-being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual, and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that the interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing the child-friendly procedures. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy a seminal place in the text of the POCSO Act."

The crucial and conspicuous provision of the new law is the designation of special sessions courts as per Section 28[5], to not only try the offences under the POCSO Act, but also to take cognizance thereof, directly upon the receipt of complaint of facts constituting such offence or otherwise upon the police report of such facts, as per Section 33(1)[6]. The practice of law, as against the much celebrated and skewed one towards the accused in criminal cases, if undertaken for or on behalf of the victim and/or complainant, due legal recognition of provision contained in Section 40[7], would bring to fore certain significant and substantial questions of law for determination by hon'ble constitutional courts in due time including review of the previous and briefly decided issues pertaining to matters falling within the domain area of POCSO law, the same being crystallized herein below for discussion and opinion. The questions constructed are believed to be substantial in nature and are likely to pass the test laid down by the Hon'ble Supreme Court of India in the matter of Chunilal v. Mehta[8] wherein it was stated that:

"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views."

(i) Whether consent and/or permission shall be a pre-requisite and paramount consideration in the appointment of legal counsel to represent the victim child through the family or the guardian of the child as per Section 40 of POCSO Act read with Rule 7 of POCSO Rules in matters of seeking compensation especially and what is the extent of the assistance of legal practitioner allowed in trial of POCSO offences?

(ii) Whether the consent and/or permission needs to be 'informed'?

(iii) Who is referred to, in the term 'guardian' as appearing in Section 40 of POCSO Act and the implication of the phrase 'by or on behalf of the child' as appearing in Rules 7(1) and 7(2) of POCSO Rules?

(iv) Whether making a complaint under Section 33(1) would absolve the complainant of the liability of mandatorily reporting of offence to the Special Juvenile Police Unit (SJPU) or the local police u/ss 19/21 POCSO Act?

(v) Whether investigating agency being the local police or the Special Juvenile Police Unit (SJPU), in appropriate cases or as a matter of usual course of official business, can make an application before the Special Court and/or DSLSA/DLSA seeking compensation for or behalf of the victim child?

The victim of an offence has been accorded a privilege to engage a private pleader for prosecuting a case under the directions of the Public Prosecutor/Assistant Public Prosecutor as per Section 301 Cr.P.C.[9] and as held in Dhariwal Industries Ltd.[10], the magisterial courts have been possessed of with the power to allow private pleader to independently conduct prosecution under Section 301/302 Cr.P.C., with a clarification that the role of the informant or the private party is limited during the prosecution of a case in a Court of Session and the counsel engaged by him is required to act under the directions of the public prosecutor. That being the case, the legislature, in essence has not been able to remove such deficiency, in POCSO Act, but by way of Section 40 therein, which is subject to proviso to Section 301 Cr.P.C., has brought to fore lucidly that the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under the act.

A close examination of the provisions mentioned hereinbefore provides that the family, in the first place or the guardian in the second place, is entitled to the assistance (unlike carrying out prosecution/complete legal representation) of a legal counsel of their choice, who shall have to act under the directions of the Special Public Prosecutor as appointed by the state under Section 32[11] of Cr.P.C., who shall be deemed to be a Public Prosecutor within the meaning of Section 2 of Cr.P.C. and accordingly for Section 301/302 of the said code. However, considering the fact that the special court is invested with the power to take cognizance of any offence under Section 33(1) of the POCSO Act, upon receiving a complaint of facts which constitute such offence, creates a dichotomy with a parallel correlation/reference to a complaint being made under Section 200[12] read with Section 2(d)[13] of the Cr.P.C. and Section 42A[14] of the POCSO Act, which ensues complete independence to the person approaching the court to conduct prosecution without any intervention and interference by the state prosecution and/or the investigating agency. The special court, in its constitution acts both as a magistrate court as well as sessions court for the inter-play of different provisions of the act. Therefore, the intent of the legislature as borne out from the above, is premised upon investing complete choice to the family, in the first place or the guardian, in the second place in case of unavailability of the family, to engage a counsel of their choice to have legal assistance subject to usual restrictions imposed under Section 301 Cr.P.C., if the case is prosecuted upon the police report while there shall be no such restriction upon the said counsel in prosecuting a case instituted upon a complaint constituting such offence.

The practice of law, in its core, the legal representation of parties before the courts, is founded upon the basic ingredient of having due acknowledgement, consent/permission and terms settled, which may be called 'written authority' as per an analogy drawn from Section 301 Cr.P.C., between the legal practitioner and the concerned part(ies) in the form of Vakalath/Vakalatnama or in the form of 'Memo of Appearance' as an interim measure for limited purposes, if so allowed by the court. Be that as it may, consent and/or permission which shall a pre-requisite and paramount consideration in the appointment of legal counsel to represent the victim child through the family or the guardian of the child, seems to be non-negotiable for the aforesaid purposes. But the same is found relaxed while studying Rules 7(1) and 7(2)[15] of the POCSO Rules in the context of compensation if read with Section 33(8)[16] of the POCSO Act. The phrases 'by or on behalf of the child' along with 'on its own' as appearing in Rules 7(1) and 7(2) of the POCSO Rules if read in conjunction with Section 33(8) of POCSO Act, provide that the compensation for the child can be granted at any stage after the registration of First Information Report (FIR), although the case of directly complaining to the special court is missing therein, or suo-moto by the special court or by the child himself or by any person on his behalf. The first two categories are patently understandable, but who shall be this person who can file such application for compensation, even when the investigation is pending and cognizance has not been taken of, by the special court. Rule 7(6)[17] of POCSO Rules comes to the rescue in this regard in order to preliminary ascertain such category of persons:

The important consideration herein is 'trust and confidence' which a child reposes in that person. Therefore, the following list of persons is understood and found eligible (inclusive list) to file the application for seeking compensation on behalf of the child (not in seriatim or priority):

1. The Family

2. The Guardian (including support person appointed by the Child Welfare Committee as Guardian ad-litem)

3. The S.H.O. or any official duly authorized from the concerned investigating agency other than the I.O.

4. The Principal/Teacher of the School/Educational Institution

5. The Husband/Wife of the child, as the case may be, even if the marriage is illegal.

6. Any other person, who can satisfy the court on the touchstone of 'trust and confidence' which a child reposes in that person.

Though any of the above persons may prefer an application seeking compensation for the child, 'trust and confidence' should be the guiding factor. Such person, if not being the family nor the natural guardian, by virtue of an order passed by an authority as per the law of the land or in the exercise of administrative legal powers, who has itself applied its mind, invest the said person with the notional trust and confidence to prefer such application. Section 39[18] of the POCSO Act, Section 2(31)[19] of the Juvenile Justice (Care and Protection of Children) Act, 2015 read with Section 2(2)[20] of the POCSO Act and judgements of the constitutional courts duly solve the above issue, which arises primarily at the pre-trial stage before the special court. The term 'guardian ad litem' has been defined in the UN Model Law on Justice in matters involving Child Victims and Witnesses of Crime as a person appointed by the court to protect a child's interests in proceedings affecting his or her interests. The Hon'ble High Court of Delhi in the matter of Smt Lavanya Anirudh[21] held/observed as under:

"….20. In the present case, since the father of Minor 'X' was the accused and the mother had abandoned the family and remarried, the Child Welfare Committee (CWC) had rightly appointed the petitioner as the guardian of Minor 'X' as there was no natural guardian.….

….21. Ms. Lavanya Anirudh Verma who is Director of Samarpan Homes for Girls which fact has been verified by the State will act as guardian ad litem for the child victim and would thus be permitted to exercise all rights in the interest of the child victim.…"

Further, the guidelines laid down by the Hon'ble High Court of Delhi in the matter of Delhi Commission for Women[22] provides that:

(c) "Guardian" includes besides the natural guardian, support person, or any person appointed by the Child Welfare Committee for a specified period to take case of the victim during the pendency of the trial.

On the question of the culpability of a person, who does not report the offence, whether committed or not, but likely to be committed, to the police in compliance with Section 19[23] of the POCSO Act, whether commits an offence under Section 21 or not has the answer in the choice of preferring a complaint constituting an offence, before the special court in terms of Section 33(1) of the POCSO Act. The mandate of the act cannot subterfuge the intent to protect the child in any manner and therefore any such complaint made before the special court should be understood to have complied with requirements of Section 19 in toto, whether or not the special court takes cognizance. The intent therein fulfils the prevalent atmosphere in our society that people and institutions do not come forward to report such offences against children and especially where the perpetrator as suspects or accused are found to be family members, relatives or knowns/acquaintances and therefore any such person, having knowledge of the commission or likelihood of the commission of offences punishable under the POCSO Act, comes forward to directly complain before the special court cannot be made to suffer on account of Sections 19/21 of the POCSO Act, 2012 in any manner.

CONCLUSION:

A. The consent and/or permission shall a pre-requisite and paramount consideration in case of a legal counsel being appointed to represent the child, whether on behalf of the family or guardian, in the matter of seeking compensation or otherwise prosecuting a complaint of facts which constitute an offence under POCSO Act, unless the family or guardian or any other person, in whom the child reposes trust and confidence, himself or herself represent the child before the special court.

B. Section 40, POCSO Act does not allow 'any person' other than the family or guardian like teacher/principal etc., to be represented through a counsel as a matter of right nor does it prohibit it and therefore in miscellaneous proceedings like compensation for the victim and not for the prosecution of an offence under POCSO, such other person may engage a counsel to represent them in pursuance of Section 30[24] of the Advocates Act, 1961.

C. Section 40 read with Section 32 of POCSO Act, regard being had to the limitations contained therein and in reference to Section 301 Cr.P.C., shall have no application in prosecuting a complaint of facts which constitute an offence, in pursuance of Section 33(1) of POCSO Act, however the point no. A above, shall remain applicable, subject to all just exceptions contained therein.

D. There is no primacy being accorded to the family or the guardian, in preferring application seeking compensation from the special court, however no consent or authorization shall be so required to represent the child in such miscellaneous proceedings, through a legal counsel, even if the family is available and the same is done without their permission. It is suggested though, to keep the family informed about such developments, if possible. Further, the special court cannot consider or otherwise decides an application preferred by any person in the usual course of court business, as an application registered suo-moto.

E. Prosecuting a complaint of facts which constitute an offence, in pursuance of Section 33(1) of POCSO Act absolves the person/complainant/informant of the liability imposed under Section 19 and as publishable under Section 21, POCSO Act.

2. Whether Delhi Commission for Women (DCW), a statutory authority constituted under Section 3 of the Delhi Commission for Women Act, 1994 (as amended and as in force) in pursuance of functions enlisted under Section 10 of the said act and in specific reference to Section 40 read with Section 2(2) of Protection of Children from Sexual Offences Act, 2012 (as amended in the year 2019 and thereafter as in force) can come within the definition of 'Legal Services Authority' so as to represent the victim child before the Special Courts designated to hear POCSO matters?

The present question of law, has its core as to its identification and construction in the veridical events in the pursuit of the quest for justice, having arisen only after encountering complex issues of laws and facts in representing the victim of crime on the sides of prosecution under the POCSO Act. The engagement was specific as a counsel for the victim child through his mother at the behest of the NGO concerned which rescued the child, to assist the prosecution in the criminal trial. Intrigued happenings on the first day before and beyond the courtroom drama with two district counsels extending arms to represent the victim, made me sought a preliminary objection towards the tenability of application and authority to represent by the other, which was over-ruled and settled by the remarks that 'there were standing instructions' and as customary for the counsel to save the day, stood desultory satisfied on appearance. Being agog to get the standing instructions, the feet felt the actions with enquiries being made about such instructions, through walks and runs from the offices of concerned District & Sessions Judge, Judicial Branch to the office of concerned District Legal Service Authority, but to no avail against expectations and no material information could at last be gathered. The counsel's last weapon as ink on the paper was used through a clarification request[25] which was put before the Member Secretary, Delhi State Legal Services Authority, but the wait ensuing thereinafter, was eating the enthusiasm to know and get known by the underlying facts compelling prevalence of such standing instructions, whether or not in the air in actual. The most relevant extract of such request thereof, without the factual narration of a sequence of events, is reproduced hereinbelow for ready reference:

"7. That the undersigned is made to believe, on plain reading of Section 40, POCSO Act, 2012 with Rule 7 of POCSO Rules, 2012, that the family/guardian of the child (victim) is alone entitled to seek assistance of a legal counsel of their choice and only in case of inability to engage such counsel, the Legal Services Authority (i.e. DLSA South/DSLSA in this case), shall provide a lawyer to them. That being said, consent and/or permission shall a pre-requisite and paramount consideration in appointment of such legal counsel. That the undersigned is further made to understand that Delhi Commission for Women, as per its mandate under Section 10, DCW Act, 1994 read with corresponding rules, has no concern nor any jurisdiction to provide legal counsel to the victim child through their family/guardian in POCSO matters, primarily in derogation of Section 40, POCSO Act 2012 which allows or provides the same function for Legal Services Authority alone.

8. That the undersigned is unable to make out as to how DCW counsels have access to and within the office of District Legal Services Authority and have assumed upon themselves the powers, functions and duties of such authority and therefore any such official transaction, must or should have the requisite sanction of your state authority and if that is true, the corresponding documents need to be provided to the public at large through suo-moto disclosure and on the undersigned's special request, be supplied for the purpose of assisting the hon'ble court while representing the victim (child) and his family."

Delay has a chemical property of its own character of causing an ultimate death of the cause of action and sensing the same, an application[26] under Section 6(1) read with Section 4(1)(d) of Right to Information Act, 2005 was filed with the Public Information Officer, Delhi State Legal Services Authority seeking primarily the status of the clarification request so as to be prepared before the next date of hearing, when the application for compensation was likely to be taken up for final disposal besides the immediate need to fill the void of information about legal representation as legal services authority in the POCSO matters. The relevant extract thereof the said application made is reproduced herein below:

"1. Provide certified copies of file notings, orders, minutes of meetings, Action Taken Reports, correspondences and communications made (till the date of reply of this RTI application) by offices of Delhi State Legal Services Authority and its constituent DLSAs and Delhi Commission for Women in relation to the email(s) sent by the undersigned ([email protected]) to Ld. Member Secretary, DSLSA (the same being also submitted in person on 13.02.2020 in the office of DSLSA):

-Title: Clarification about Authorization/Powers/Sanction/MOUs to/of Delhi Commission for Women (DCW) to represent victims (minors} and families/guardians of such victims in POCSO matters before the hon'ble court of law for on behalf of, or otherwise in conjunction with Delhi State Legal Services Authority and/or District Legal Services Authority, and matters related therewith

Date(s): 17.02.2020 at 2.24 a.m.

NOTE: The copy is attached herewith for due reference.

2. In reference to point no. 1, provide the certified copy of the email response provided to the sender.

  1. Provide the certified copy of the judgement/order/arrangement/policy/scheme/standing instructions/circulars/authorization or any record which authorizes counsels of Delhi Commission for Women to appear for or on behalf victims and their families in POCSO matters before hon'ble Special Court in District Courts of Delhi.
  2. Provide the certified copy of the minutes of meetings and list of meetings held by DSLSA and DLSAs with Delhi Commission for Women in 2019 and 2020.
  3. Provide information about compliance of Section 40, POCSO Act, 2012 read with Rule 7 of POCSO Rules, 2012 by the DSLSA and/or DLSA in the capacity of 'Legal Services Authority'.
  4. Provide information about access to office and resources of DSLSA and DLSAs available to counsels of Delhi Commission for Women, except as private citizens.
  5. Provide the certified copies of the last passed daily order in each such case as mentioned/sought to, in point no. 9 above, which has the attendance of the counsel of DSLSA.
  6. Provide information whether counsels (panel legal aid counsels of DSLSA and DLSAs) take authorization and/or consent of the victims and/or their families before representing them before hon'ble Special Court (POCSO) in District Courts of Delhi."

The unusual happened within nearly 24 hours of the receipt of the said application by the office of DSLSA, with prompt administrative reply to the clarification request and a document titled 'Minutes of Meeting'[27] was provisioned, the relevant extract thereof is reproduced herein below:

"2. Ms. Neelam Narang, RCC In charge, pointed out that all 22 RCC lawyers are effectively representing the victims, in the Courts and are working in close association with the Public Prosecutor, under their guidance. Sometimes it is observed that the victim is also represented by her own lawyer, support personal lawyers by DSLSA and CWC support persons as the case may be, so there are many people accompanying the victim in the courtroom. It was recommended that roles of all present should be prefixed so that the system becomes more helpful to the victim. To remedy this problem, the DSLSA Member Secretary, Mr. Dharmesh Sharma suggested that there should be one counsellor, one lawyer and one public prosecutor to deal with a particular case. This would help avoid the re-victimization of the victim/survivor of sexual assault. In the case titled as Khem Chand & ors. V. State Crl. Appeal No. 05/2000, Hon'ble High court of Delhi had directed the DSLSA to provide social worker and paralegal worker to provide necessary moral and legal support to the victims of sexual assault and their families. In another judgment titled Delhi Commission for Women V. Delhi Police W.P. (Cr!.) 696/2008 dated 23.04.2009, Hon'ble High Court of Delhi had stated that the Rape Crisis Cell (RCC) established under the Delhi Commission for Women would provide legal assistance to the victims in the case of sexual assault and RCC would coordinate the Crisis Intervention Centre and provide legal support to the victim and her family. In the light of this judgment, it was jointly decided that all the support persons representing the victim should come under the ambit of one umbrella of Rape Crisis Cell of the Delhi Commission for Women. It was also agreed by all the participants that a Standard Operating Procedure should be made."

The judgment [28] referred to, in the above-mentioned extract of the minutes of the meeting made the following direction to the subordinate courts, upon which the Delhi Commission for Women heavily relies upon in order to provide legal services to the victims of sexual offences, whether or not such offences are punishable under the POCSO Act:

c) The Hon'ble Supreme Court in Delhi Domestic Working Women Forum v. Union of India, 1995 (1) SCC 14 and reiterated by this Hon'ble Court in Khem Chand v. State of Delhi 2008 (4) JCC 2 497 had directed that the victim be provided with a counsel. The existing practice of the victims being represented by a counsel from Rape Crisis Cell may continue. In cases where the victim has a private lawyer, she may be allowed to retain the private lawyer.

The continued quest for information and the prevalent compliance of the time limits provided for under the RTI Act, subject to the unprecedented times of COVID-19, got the information from the concerned DLSAs and the DSLSA on numerous dates till 24.06.2020. The reply[29] from the central office i.e. DSLSA which is found to be in partial rejection of the request for information, is reproduced herein below:

"No such data maintained by DSLSA. As per DOPT OM No. 1/18/2011-IR, the PIO is not supposed to create information; or to interpret information; or to solve the problems raised by the applicants; or to furnish replied to hypothetical questions. The issues has been elaborated by the Hon'ble Supreme Court in the matter of Central Board of Secondary Education & Anr. Vs. Aditya Bandopadhyay & Others, Civil Appeal No. 6454 of 2011."[30]

Whereas, the district authorities i.e. DLSAs have been found to have devised intelligent method of replying to the RTI Application by making substantially same or nearly cent percent similar replies, which is reflected prima facie. Further, the Central and East DLSA have abstained from replying till date, for reasons best known to them. The following consists of the gist of the same or similar replies from the district authorities:

[31]"Section 40, POCSO Act, 2012 read with Rule 7 of POCSO Rules, 2012 by the DLSA in the capacity of 'Legal Services Authority' is being complied with as per law. Legal Aid Counsels are appointed only on the request of victims/their families or by directions of Courts before representing them before hon'ble Special Court (POCSO) in District Courts of Delhi. Yes, counsels (panel legal aid counsels of DSLSA and DLSAs) take authorization and/or consent of the victims and/or their families before representing them before hon'ble Special Court (POCSO) in District Courts of Delhi. The authority has never appointed or authorized any counsel of Delhi Commission for Women to appear for or on behalf of victims in POCSO matters before Hon'ble Special Courts 'in District courts of Delhi. No such acknowledgement record is being maintained."

A perusal of the above said documents collectively does not bring any substance to the notion as to whether DCW shall represent the victim child (boy or girl) or represent such victim through some other person including family members, by creating its own panel of advocates or DSLSA shall create such exclusive panel of advocates to represent such persons in its own name or in the name of DCW or co-jointly, in pursuance of the objective, stated in the said minutes of meeting i.e. there should be one counsellor, one lawyer and one public prosecutor to deal with a particular case. Therefore, it can be safely determined that the DCW cannot represent the victim child (boy or girl) nor represent such victim through some other person including family members, by creating its own panel of advocates, for designated special courts under POCSO Act.

Now, the question which requires consideration as to whether the current practice of DCW is in line with its objectives, functions and powers defined under the Delhi Commission for Women Act, 1994 and its interface with POCSO Act. Delhi Commission for Women is constituted with the aim to investigate and examine all matters relating to the safeguards provided for women under the constitution and other laws. The Commission functions and strives to ensure aims envisaged in the Act through its various programmes like Sahyogini, Mahila Panchayats, Rape Crisis Cell, Mobile Help Line and Pre Marital Counselling Cell.[32]

The commission has been entrusted functions under Section 10[33] of the act and within the same section, by virtue of sub-clause (iii) powers of civil court in respect of certain matters have been invested upon the commission for investigation of matters, while no specific section deals with any other powers being conferred upon the commission in any manner. On a closer look into the plethora of functions entrusted, the commission has a duty to "take up the cases of violation of the provision of the Constitution and of other laws relating to women with appropriate authorities." which when tried to be equated with the representation of victims or their families before the designated special courts through its own panel counsel, seems to be a distant connection even when the same is understood to be done, not in the capacity as a legal service authority. The act has laid down provisions only for the safety of women and has not briefed on anything related to legal services provided to 'victim child' before the special court.

Another question which brings to fore is the issue of legal representation or provision of legal services[34], to a boy child or transgender, by DCW although the same does not arise for girl child i.e. below the age of 18 years which can safely be brought within the meaning of women, if Section 2(2)[35] of POCSO Act is read along with Section 10 IPC[36] wherein "a woman denotes a female human being of any age." The possible argument which may be taken by DCW to represent families or guardians or any other having interested in the well-being of the victim boy child or transgender, does not evince confidence in specific reference to Section 40[37] of the POCSO Act, although the little justifiable force it derives is the judgement in Delhi Domestic Working Women Forum v. Union of India, 1995 (1) SCC 14 and reiterated by Hon'ble High Court of Delhi in Khem Chand v. State of Delhi 2008 (4) JCC 2 497 which if studied minutely, is found to be only a stop-gap arrangement created by the court then, in light of the qualifying term 'may' being used and that was much before the enactment of the POCSO Act. The legal representation in the criminal trial is always with respect to the victim per se, whether the authority to represent or consent in respect thereto concerning a minor victim, is provided by his or family member, guardian or any other specially interested in his or her well-being and therefore such argument of representing the victim child, whether or not boy, girl or other, does not come within the enlisted functions of DCW, even if such functions are read and applied in expanded form and structure. What can suitably be derived after coming in force of the POCSO Act, is that the directions to the subordinate courts as contained in the said judgment in so far as it relates to legal representation to victims of rape through rape crisis cell shall get ceased and stands complied with and concluded in matters falling under the purview of the said act i.e. criminal sexual offences committed against children. The interpretation of functions of DCW especially the ones provided for in clause (a) and clause (f), in structured groups or as whole, calls for no mandate to become legal service authority, whether or not at par as is specified in the Legal Services Authority Act, 1987 directly or indirectly, since otherwise it would mean creating a special legal services authority for sexual offences through a statutory body other than the district or state legal services authority. The Legal Services Authority Act, 1987, although notified/enforced in the year 1995[38] and has a non-obstante provision[39] which if interpreted in relation to DCW Act and POCSO Act, provides for its superiority in matters of application of the law on the present issue and calls for reasoned enquiries by the designated special courts under POCSO to let the right and appropriate applicable law prevails.

CONCLUSION:

  1. Delhi Commission for Women, a statutory authority constituted under Section 3 of the Delhi Commission for Women Act, 1994 (as amended and as in force) in pursuance of functions enlisted under Section 10 of the said act and in specific reference to Section 40 read with Section 2(2) of Protection of Children from Sexual Offences Act, 2012 (as amended in the year 2019 and thereafter as in force) does not come within the definition of 'Legal Services Authority' so as to represent the victim child(ren) before the Special Courts designated to hear POCSO matters.
  2. The direction contained in the judgements titled Delhi Domestic Working Women Forum v. Union of India, 1995 (1) SCC 14 and Khem Chand v. State of Delhi 2008 (4) JCC 2 497 in so far as they relate to legal representation or provision of legal services to victims of sexual offences primarily rape and all its associated forms as are punishable under the law through rape crisis cell, stands complied with and however gets inoperative with effect from the notified date of enactment of The Protection of Children from Sexual Offices Act, 2012 (as amended from time to time and as in force) only in matters falling under the purview of the said act i.e. criminal sexual offences committed against children, till its repeal or abrogation, since the legislative domain has prospectively encapsulated the void in law understood as a stop-gap arrangement, whether duly recognizing the said judgements or otherwise in the preamble of the said law.
  3. Legal Representation to victims of offences punishable under The Protection of Children from Sexual Offences Act, 2012 (as amended in the year 2019 and thereafter as in force), in the absence of a private counsel, shall be provisioned only through the concerned DLSA or SLSA as per Section 40 of the Act read with Sections 2(1)(b), 2(1)(c) and 2(1)(h) of the Legal Services Authority Act, 1987 (as amended as in force).

The recognition of the victim as an important stakeholder in the criminal justice system, except that of a witness is largely at loggerheads irrespective of the issues dealt herein above. The pursuit of justice with its long tails and trails with the succor of compensation by the state is still not motivating for a common person to access real justice having due economic and time value of resources at the end, assuming that such justice is in actual dispensed with. The experiences of a victim in interface with the system during the journey of seeking just justice has been aptly stated in the following observations of the Hon'ble Supreme Court of India in the matter of Mallikarjun Kodagali (Dead) [40] which are relevant apropos:

"2. The rights of victims of crime is a subject that has, unfortunately, only drawn sporadic attention of Parliament, the judiciary and civil society. Yet, it has made great progress over the years. It is our evolving and developing jurisprudence that has made this possible. But we still have a long way to go to bring the rights of victims of crime to the centre stage and to recognise them as human rights and an important component of Signature Not Verified social justice and the rule of law.

3. The travails and tribulations of victims of crime begin with the trauma of the crime itself and, unfortunately, continue with the difficulties they face in something as simple as the registration of a First Information Report (FIR). The difficulties in registering an FIR have been noticed by a Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh. The ordeal continues, quite frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crimes against women and children. Access to justice in terms of affordability, effective legal aid and advice as well as adequate and equal representation are also problems that the victim has to contend with and which impact on society, the rule of law and justice delivery.

4. What follows in a trial is often secondary victimisation through repeated appearances in Court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross-examination, but a more humane interpretation of the provisions of the Indian Evidence Act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of victims are addressed, but a lot more needs to be done. Today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both. The Courts have provided solace to the victim with monetary compensation, but that is not enough. There are victim compensation schemes in force due to the mandate of Section 357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even that is not enough, though they are being implemented in several parts of the country. We are of the view that the judiciary is obliged to go and has gone beyond merely awarding compensation and has taken into consideration the larger picture from the perspective of the victim of an offence, relating to infrastructure in court buildings and has recommended and implemented some recommendations such as the construction of child-friendly courts and courts that address the concerns of vulnerable witnesses. The Courts have done and are continuing to do their best for the victims of crime."

The courts are empowered by the law and should not abstain themselves from questioning the usual practices of the state authorities in accordance with the correct application of the law, whether or not the same, in short-run sub-serves the convenience and appearance of the dispensation of justice to the victims of crimes, by rendering them the subjects of victims of the law. The children as a sub-set of victims are still at loggerheads in terms of recognition for standing in the system and for consideration of their continuous cry, alas without being the constituted electorate in the democracy.


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



[1] (The term 'him' means a child (irrespective of the gender) as defined under section 2(d) of the POCSO act. This section is gender neutral).

[2] The POCSO act was enacted on 14 November 2012 throughout India, except the state of Jammu and Kashmir. The Act was enacted to protect children from offences of sexual assault, sexual harassment and pornography and to provide a child friendly system for the trial of these offences. It also intends to protect the child through all stages of judicial process and gives paramount importance to the principle of best interest of the child'.

[3] Press Information Bureau Government of India Ministry of Women and Child Development Protection of Children from Sexual Offences (POCSO) Act, 2012, July 1, 2020, available at https://pib.gov.in/newsite/PrintRelease.aspx?relid=113750 (Last visited on July 1, 2020).

[4] Eera through Dr. Manjula Krippendorf v. State (NCT of Delhi) and another (2017) 15 SCC 133.

[5] Protection of Children from Sexual Offences Act, 2012, §28.

[6] Protection of Children from Sexual Offences Act, 2012, §33(1). (33. Procedure and powers of Special Court)

  1. A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.

[7] Protection of Children from Sexual Offences Act, 2012, §40. (40. Right of child to take assistance of legal practitioner)

Subject to the proviso to section 301 of the Code of Criminal Procedure, 1973 the family or the guardian of the child shall be entitled to the assistance of a legal counsel of their choice for any offence under this Act:

Provided that if the family or the guardian of the child are unable to afford a legal counsel, the Legal Services Authority shall provide a lawyer to them.

[8] Chunilal v. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. 1962 AIR 1314.

[9] Code of Criminal Procedure, 1973, §301.301. Appearance by Public Prosecutors.

(1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

[10] Dhariwal Industries Ltd. v. Kishore Wadhwani, 2016 SCC OnLine SC 935.

[11] Code of Criminal Procedure, 1973, §32.32. Special Public Prosecutors.

(1) The State Government shall, by notification in the Official Gazette, appoint a Special Public Prosecutor for every Special Court for conducting cases only under the provisions of this Act.

(2) A person shall be eligible to be appointed as a Special Public Prosecutor under sub-section (1) only if he had been in practice for not less than seven years as an advocate.

(3) Every person appointed as a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and provision of that Code shall have effect accordingly.

[12] Code of Criminal Procedure, 1973, §200. 200. Examination of complainant.

A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

[13] Code of Criminal Procedure, 1973, §2.

2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but does not include a police report.

[14] Protection of Children from Sexual Offences Act, 2012, §42A. (Section 42A. Act not in derogation of any other law)

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

[15] Protection of Children from Sexual Offences Rules, 2012, Rule 7.(7. Compensation)

(1) The Special Court may, in appropriate cases, on its own or on an application filed by or on behalf of the child, pass an order for interim compensation to meet the immediate needs of the child for relief or rehabilitation at any stage after registration of the First Information Report. Such interim compensation paid to the child shall be adjusted against the final compensation, if any.

(2) The Special Court may, on its own or on an application filed by or on behalf of the victim, recommend the award of compensation where the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, and in the opinion of the Special Court the child has suffered loss or injury as a result of that offence.

[16] Protection of Children from Sexual Offences Act, 2012, §33(8). (Section 33. Procedure and powers of Special Court)

(8) In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.

[17] Protection of Children from Sexual Offences Rules, 2012, Rule 7.(7. Compensation)

(6) Nothing in these rules shall prevent a child or his parent or guardian or any other person in whom the child has trust and confidence from submitting an application for seeking relief under any other rules or scheme of the Central Government or State Government.

[18] Protection of Children from Sexual Offences Act, 2012, §39.(Section 39. Guidelines for child to take assistance of experts, etc.)

Subject to such rules as may be made in this behalf, the State Government shall prepare guidelines for use of non-governmental organisations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pre-trial and trial stage to assist the child.

[19] Juvenile Justice (Care and Protection of Children) Act, 205, §2(31).

"guardian" in relation to a child, means his natural guardian or any other person having, in the opinion of the Committee or, as the case may be, the Board, the actual charge of the child, and recognised by the Committee or, as the case may be, the Board as a guardian in the course of proceedings;

[20] Protection of Children from Sexual Offences Act, 2012, §2(2).

The words and expressions used herein and not defined but defined in the Indian Penal Code (45 of 1860), the Code of Criminal Procedure, 1973 (2 of 1974), 2[the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016)] and the Information Technology Act, 2000 (21 of 2000) shall have the meanings respectively assigned to them in the said Codes or the Acts.

[21] Smt Lavanya Anirudh v. State of NCT of Delhi CRL.M.C. 301/2017.

[22] Delhi Commission for Women v. Delhi Police 2010 172 DLT 65.

[23] Protection of Children from Sexual Offences Act, 2012, §19. (19. Reporting of offences)

1. "Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,-

a. the Special Juvenile Police Unit, or

b. the local police.

2. Every report given under sub-section (1) shall be-

a. ascribed an entry number and recorded in writing;

b. be read over to the informant;

c. shall be entered in a book to be kept by the Police Unit.

3. Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section (2) in a simple language so that the child understands contents being recorded.

4. In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same.

5. Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such 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.

6. The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard.

7. No person shall incur any liability, whether civil or criminal, for giving the information in pond faith for the purpose of sub-section (1).

[24] Advocates Act, 1961, §30. 30. Right of advocates to practice

Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout the territories to which this Act extends,:

  • in all courts including the Supreme Court;
  • before any tribunal or person legally authorized to take evidence; and
  • before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.

[25] Letter sent by Mohit Kumar Gupta addressed to Member Secretary, Delhi State Legal Services Authority (February 13, 2020).

[26] RTI Application by Mohit Kumar Gupta vide ref. no. DLLSA/R2020/60011 filed with Public Information Officer, Delhi State Legal Services Authority on 05.03.2020

[27] Delhi Commission for Women, Minutes of the Office of Chairperson's Meeting held on May 7, 2016 Ref. No. F1/108/DCW/RCC/2016/1706-1719

[28] Delhi Commission for Women v. Delhi WP Crl. 696/2008.

[29] RTI Reply from DSLSA bearing Re. No. ____ dated 17.03.2020 signed on 17.03.2018 and received through electronic means on 11.06.2020

[30] Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Others, Civil Appeal No. 6454 of 2011. The following observation has been omitted by the office of DSLSA in denying the information requested:

37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption.

[31] RTI Replies from the following authorities, as consolidated with same or similar information for the ease of comprehension:

New Delhi DLSA: Ref. No. 53/NDDLSA/RTI/19-20/1779 dated 17.03.2020 received through Speed Post Tracking No. ED492343827IN on 01.06.2020

South East DLSA: Ref. No. 18/14/RTI/DLSA/SE/____ dated 12.06.2020 received through electronic means

South DLSA: Ref. No. 190/DLSA/South/Reply RTI/_____dated 12.06.2020 received through electronic means

North East DLSA: Ref. No. 568/NE/KKD/Delhi/20 dated 26.05.2020 received through electronic means on 26.05.2020

Shahdara DLSA: Ref. No. DLSA/SHD/RTI/2020/1999 dated 09.06.2020 received through electronic means

North DLSA: Ref. No. DLSA (North)/RTI/2020/567 dated 18.03.2020 received through Speed Post Tracking No. ED596218544IN on 08.04.2020

North West DLSA: Ref. No. 03/DLSA/NW /Rohini/RTI/2020 dated 23.03.2020 received through electronic means

South West DLSA: Ref. No. 49/SWDLSA/RTI/2020/___dated 19.03.2020 received through electronic means

West DLSA: Ref. No. DLSA/West/RTI/2020/311 dated 23.03.2020 received through Normal Post on 24.06.2020

[32] Delhi Commission for Women, About us, July 1, 2020, available at http://dcw.delhigovt.nic.in/wps/wcm/connect/lib_dcw/DCW/Home/About+Us(Last visited on July 1, 2020)..

[33] Delhi Commission for Women Act, 1994, §10.10. Function of the Commission (Relevant Extract)

(i) The Commission shall perform all or any of the following functions, namely:

(a) investigate and examine all matters relating to the safeguards provided for women under the constitution and other laws;

(b) present to the Government annually and at such other time as the Commission may deem fit, reports upon the working of these safeguards;

(c) make in such reports recommendations for the effective implementation of those safeguards for improving the conditions of women in the Capital;

(d) review, from time to time, the existing provisions of the Constitution and other laws affecting women and recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae, inadequacies or shortcomings in such legislations;

(e) take up the cases of violation of the provision of the Constitution and of other laws relating to women with appropriate authorities;

(f) look into complaints and take suo moto notice of matters relating to: - .

(i) deprivation of women's rights;

(ii) non-implementation of laws enacted to provide protection to women and also achieve the objective of equality and development;

(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women, and take up the issues arising out of such matters with appropriate authorities.

(g) call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal;

(h) undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all spheres and identify factors responsible for impeding their advancement, such as, lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and occupational health hazards and for increasing their productivity;

(i) participate and advise on the planning process of socioeconomic development of women;

(j) evaluate the progress of the development of women in the Capital;

(k) inspect or cause to be inspected a jail, remand home, concerned authorities for remedial action if found necessary; women's institution or other place of custody where women are kept as prisoners or otherwise, and take up with the

(I) fund litigation involving issues affecting a large body of women;

(m) make periodical reports to the Government on any matter pertaining to women and in particular various difficulties under which women toil

(n) any other matter which may be referred to it by the Government.

(iii) The Commission shall while investigating any matter referred to in clause (a) or sub-clause (i) of clause (f) of sub-section have all the powers of a Civil Court trying suit and in particular in respect of the following matters, namely: -

(a) summoning and enforcing the attendance of any person from any part of India and examine him on oath;

(b) requiring the discovery and production of a document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office;

(e) issuing Commissions for the examination of witness and documents; and

(f) any other matter which may be prescribed.

[34] Legal Services Authorities Act, 1987, §2(c).

'Legal Service' includes the rendering of any service in the conduct any case or other legal proceeding before any court or other Authority or tribunal and the giving of advice on any legal matter.

[35] Ibid

[36] Indian Penal Code, 1860, §10.

"a woman denotes a female human being of any age."

[37] Ibid

[38] 09 November, 1995

[39] Protection of Children from Sexual Offences Act, 2012, §25.(Section 25. Act to have overriding Effect)

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

[40] Mallikarjun Kodagali (Dead) v. The State Of Karnataka (2019) 2 SCC 752.


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