The Delhi High Court on January 11 passed an order issuing guidelines for the child survivors and victims to reduce their trauma during bail hearings relating to the POCSO (Protection of Children from Sexual Offences Act) case.

A Single Bench of Justice Jasmeet Singh observed, “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.”

The Bench further said 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.

Advocate S Pujari appeared for the appellant while Advocate Harshita Mishra appeared for the respondent.

It was pointed out by the counsel appearing for the appellant as well as the Secretary (Litigation), DSLSA that many of the victims in POCSO cases were being asked to appear physically or virtually in Court at the time of hearing bail applications and the same has led to a situation where the victims were being forced not only to potentially interact with the accused person but also be present in Court when arguments regarding the offence were taken up for hearing.

The High Court noted, “… the DHCLSC, DSLSA as well as Mr Pujari were directed to give suggestive practice directions. The suggestive practice directions have been forwarded to this Court and I am in agreement that the said directions, if implemented in its true letter, spirit and intent, may help in reducing the trauma of a POCSO victims.”

The Court after considering the suggestions provided by counsel issued the following guidelines –

1. The Investigation Officer i.e., IO shall ensure that timely service of notice of bail application is made on the victim/ prosecutrix so that she gets a reasonable amount of time to enter appearance and make her submissions.

2. The IO 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 and should ensure that while making such enquiries the victim is not made to feel uncomfortable or questioned like an accomplice to a crime.

3. 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 of 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.

4. 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 the 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 a victim is duly identified by the IO) and said authorization is forwarded by the SHO, should suffice.

5. If the victim has appeared in court on one date of hearing of a bail application, her presence on subsequent dates can be dispensed with and RCC lawyer/ counsel/ parent/guardian/ support person representing the victim in court can be permitted to make submissions on behalf of the victim.

6. 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.

7. 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.

8. Whenever the victim comes to court for a hearing on the bail application, the support person provided to her should be present with her so as to provide the necessary psychological or logistical support to the victim/prosecutrix.

9. The victim's presence 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 grant of bail to the child in conflict with the law are not dependent on the apprehensions of the prosecutrix.

10. After the bail application is disposed of, a 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 of 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.

11. Judicial Officers are sensitized about the need to reduce the interface of a victim with the accused in court to the minimum possible and to permit the victim to be represented through an authorised person in court at the time of hearing of bail application, instead of insisting for the appearance of the victim in person (either virtually/physically).

“The Secretary (Litigation), DSLSA who is present in Court shall circulate the order to all necessary parties and stake holders. List the appeal in due course”, the Court further directed.

Accordingly, the Court issued the necessary guidelines.

Cause Title- Babu Lal v. State

Click here to read/download the Order

Delhi HC#Justice Jasmeet SinghPOCSOBail

Swasti Chaturvedi