[Sexual Offences] Calcutta HC Issues Slew Of Directions To Special Courts To Ensure Smooth & Prompt Examination Of Minor Victims

The Calcutta High Court recently issued a slew of directions to the Special Courts to ensure a smooth, prompt and seamless examination of the minor victim of sexual offences.

The bench of Justice Joymalya Bagchi and Justice Ananya Bandyopadhyay issued the directions while rejecting a bail plea filed by POCSO accused as it noted that the trial Court had failed to act n accordance with the procedure laid down in Section 33 of POCSO Act regarding the manner of examination of the minor victim.

Our readers may note that Section 33 of the POCSO Act provides for a child-friendly atmosphere for the examination of a minor. It requires that such examination has to be conducted in presence of her guardian, a friend, or a relative.

The Courts are also required to see that the minor is not intimidated by aggressive or embarrassing questions which may affect the dignity of the child. Further, sub-section (5) of Section 33 of the POCSO Act puts a duty upon the Court to ensure that the child is not called repeatedly to testify in Court.

Now, in the instant case, the 13-year-old sexual assault victim girl initially supported the prosecution's case as she alleged during her examination-in-chief that the petitioner/accused used to show her obscene pictures and put his hand in her private parts.

However, during her cross-examination, she referred to a dispute between the petitioner and her mother over the payment of dues, and thus, she denied the suggestion that the petitioner had sexually violated her. On this ground only, the accused moved to the High Court seeking bail.

Taking into account the facts and circumstances of the case, the High Court noted that at the instant of the defence, the Special POCSO Court adjourned the cross-examination of the minor to another date and on the adjourned day, the minor came with a different version of the incident.

This, the Court emphasized, gave rise to an inference during the interregnum the victim had been won over and remarked thus:

"A fortnight's adjournment resulted in a clear change of stance by the minor. Instead of insisting on completion of the examination of the minor on the same day the Special Court mechanically gave an adjournment for a fortnight on the mere asking of the defence. We do not appreciate such course of action...Apart from the fear of winning over the witness due to long adjournments, it must be borne in mind the exercise of repeatedly bringing a minor to Court to depose about an incident of sexual predation by itself amounts to secondary victimisation. Repeated summoning of the minor for giving evidence would create trauma and undue stress on her and degenerate the process of adjudication to an ordeal of pain and harassment. This is to be avoided at all costs and a balance must be struck between the right of the victim to friendly and conducive access to justice on one hand and the due process rights of the accused on the other." (emphasis supplied)

Therefore, observing that the Special Court had failed to act in accordance with the mandate of Section 33 of the POCSO Act, the Court issued the following directions for the special courts in the state to follow:

a) Upon commencement of trial minor victim shall be examined first bearing in mind the mandate under Subsection (1) of Section 35 of the POCSO Act;

b) No adjournment shall be given to either of the parties when a minor victim is brought to the Court for giving evidence. Her examination is to be concluded as far as practicable on the day itself. All stakeholders including the Special Public Prosecutor and defence counsels shall co-operate with the Court in that regard;

c) Apart from circumstances pertaining to the minor viz. her state of health or due to circumstances beyond the control of the Court, no adjournment shall be granted;

d) We hasten to add cessation of work owing to lawyer's strike shall not be a ground to postpone the examination of a minor, if she is present in Court;

e) Apex Court has held bar resolutions to abstain from work/ lawyer's strike are illegal and amount to contempt of Court. Hence, refusal to examine and/or crossexamine the minor victim who is present in Court on such ground would not only amount to 'professional misconduct' on the part of the lawyer concerned but shall also be construed as obstruction to the administration of justice making him liable for 'criminal contempt' under section 2(c) of the Contempt of Courts Act;

f) In the event, that an adjournment is given owing to circumstances pertaining to the minor or beyond the control of the Court, reason for adjournment must be explicitly stated in the order sheet and such adjournment shall be for a very short period not more than 2-3 days subject, however, to the convenience of the minor;

g) Sub-section (5) of Section 33 of the POCSO Act is a provision engrafted in a special law enacted for the protection of minor victims of sexual offences. The said provision shall override the provisions under the general law, e.g. Code of Criminal Procedure and the Evidence Act including the provision for deferment of cross-examination under Subsection (2) of Section 231 of the Code of Criminal Procedure. Hence, no deferment of cross-examination under section 231(2) Cr.P.C. be permitted if the same is not conducive to the interest of the child;

h) Necessary witness protection measures including support, compensation, counselling shall be provided by the investigating agency and the District Legal Services Authority (DLSA) concerned to the minor victim and her family before, during and even after the trial, if necessary;

(i) In the event the minor resides is at far off place or due to inconvenience is unable to come to Court, her/his evidence shall be recorded through video-conferencing following the 'Standard Operating Procedure' prescribed by the Apex Court in In Re Children In Street Situations 2022 SCC OnLine SC 189.

The registry was directed to issue the order copy to the special courts all over the state. Further, the trial court in the instant matter was directed to conclude the trial at an early date preferably within three months from the next date fixed for recording evidence without granting unnecessary adjournments to either of the parties.

Case title - Soumen Biswas @ Litan Biswas vs State of WB

Case Citation:2022 LiveLaw (Cal) 303

Click Here To Read/Download Order