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Synopsis

The bench of Justice Jasmeet Singh of the Delhi High Court recently issued guidelines to protect minor survivors in cases under the Protection of Children from Sexual Offences Act (POCSO Act) who have to appear in courtrooms during the accused's bail proceedings.

During the hearing, Advocate Adit S Pujari appearing for Babu Lal (appellant), and Advocate Harshita Mishra, Secretary of Delhi State Legal Services Authority (DSLSA) submitted before the court that many survivors of the POCSO cases are asked to appear either physically or virtually when bail pleas are heard. Resultantly, the survivors are forced not only to potentially interact with the accused person but also to be present in the courtroom when arguments regarding the offence are heard.

“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 single-judge bench observed.

Justice Singh said that the prosecutrix is compelled to appear in court alongside the accused, who is the same person who allegedly violated her. He opined 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”.

Justice Singh noted that the suggestive practice/directions had been forwarded by the Delhi High Court Legal Services Committee (DHCLSC), DSLSA, and Adv. Pujari, and said that if they are implemented in their true spirit and intent, they may aid in reducing the trauma of POCSO victims.

In light of the suggestions, the court issued the following guidelines and directed them to be followed during bail hearings in the POCSO cases:

• The IO must ensure that the victim/prosecutrix receives a timely notice of bail application so that she has a reasonable amount of time to enter an appearance and make her submissions.
• The IO, while serving notice/summons shall make relevant inquiries about the victim and her circumstances and shall document the same to assist the court in the hearing of the bail application and to facilitate effective representation and participation on behalf of the victim. The IO should make certain that the victim is not made to feel uncomfortable or questioned as an accomplice to a crime while conducting such inquiries. The IO should exercise the necessary sensitivity while conducting these inquiries.
• The victim can be produced virtually before the Court (either by the IO/ Support person before the Court) (by way of Video Conferencing) or by taking assistance from the District Legal Services Authority. A hybrid form of hearing bail applications would suitably address the concerns of the victim while at the same time safeguarding the rights of the accused. The victim and the accused shall not come face to face in this manner and this can prevent the re-traumatization of the victim
• If the victim indicates in writing that her counsel/parent/guardian/support person will appear on her behalf and make submissions on the bail application, the prosecutrix's physical or virtual presence should not be required. A written authorization signed by the victim authorizing another to make submissions on her behalf (after the victim has been identified by the IO) and forwarded by the SHO should suffice.
• If the victim has appeared in court on one date of the hearing of a bail application, her presence on subsequent dates can be dispensed with and the RCC lawyer/ counsel/ parent/guardian/ support person representing the victim in court can be permitted to make submissions on behalf of the victim
• 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 may be considered at a later stage
• While recording the submissions/ objections/ statement of the victim qua the bail application, appropriate questions may be put to the victim to elicit her responses instant of bluntly asking her “Do you want bail to be given to the accused or not?”. Rather questions can be put to her to ascertain what her apprehensions and fears are in case the accused is granted bail in the matter, for bail is to be granted by the Court concerned on the basis of overall appreciation of facts and circumstances of the case and in the light of well-settled principles governing the grant of bail.
• Whenever the victim appears in court for a hearing on the bail application, the support person assigned to her should accompany her in order to provide the victim/prosecutrix with any necessary psychological or logistical support.
• The presence of the victim may not be insisted on in cases under the POCSO Act where the accused is a child in conflict with the law, because the considerations for granting bail to the child in conflict with the law are not dependent on the prosecutrix's concerns.
• After the bail application is rejected, a copy of the order must be sent to the victim. This is significant because the victim's primary concern is her safety if the accused is released on bail. By providing her with a copy of the bail order, the victim is made aware of the accused's status and the conditions of bail, as well as her right to petition the court for bail cancellation if the conditions of bail are violated.
• Judicial Officers should be educated on the importance of minimizing the victim's interaction with the accused in court and allowing the victim to be represented in court through an authorized person at the time of bail application hearing, rather than insisting on the victim's appearance in person (virtually/physically).

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

Case Title: Babu Lal v. State