In a very simple, significant, straightforward, suave and stimulating judgment titled Soumen Biswas @ Litan Biswas vs State of West Bengal in C.R.M. (DB) 2220 of 2022 pronounced recently on August 23, 2022, the Calcutta High Court has most rightly, remarkably, rationally and robustly 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 Hon’ble Justice Joymalya Bagchi and Hon’ble Justice Ananya Bandyopadhyay in this brilliant judgment had issued the slew of most commendable directions while rejecting a bail plea that was filed by the Protection of Children From Sexual Offences (POCSO) accused as it noted that the Trial Court had failed to act in accordance with the procedure laid down in Section 33 of POCSO Act regarding the manner of examination of the minor victim. My esteemed readers must note that Section 33 of the POCSO Act, 2012 mandates for a child-friendly atmosphere for ensuring the smooth and fair examination of a minor.
It very rightly mandates that such examination has to be conducted in the presence of her guardian, a friend or a relative. In addition, 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. It is mentioned in the very top of this judgment that, “An application for bail under Section 439 of the Code of Criminal Procedure in connection with Harwood Point Coastal P.S. Case No.379 of 2021 dated 07.11.2021 under Section 8 of the POCSO Act and charge sheet submitted under Section 8 of the POCSO Act.”
At the very outset, this extremely learned, laudable, landmark and latest judgment sets the ball rolling by first and foremost putting forth most concisely that, “Heard the learned Advocates appearing for the parties. It is submitted on behalf of the petitioner minor victim has not supported the prosecution case. She came out with a different version of the incident in course of cross-examination. Accordingly, petitioner prays for bail.”
To be sure, the Bench then mentions in the next para that, “Learned Additional Public Prosecutor opposes the prayer for bail. He submits the minor had explicitly narrated the incident during her examination-in-chief. Prayer was made for adjournment to cross-examine her. Prayer was mechanically allowed. After a fortnight, on the adjourned day she came out with a different version. Under such circumstances, Public Prosecutor made an application for recall of the witness to put questions to her to test her veracity which, however, was disallowed. Relations of the victim are yet to be examined. Hence, prayer for bail may be rejected.”
No doubt, the Bench then adds in the next para that, “In reply, Mr. Basu submits that the minor did not appear in Court earlier on a number of occasions and had been brought to the Court pursuant to a bailable warrant.”
To put things in perspective, the Bench then points out that, “We have considered the materials on record. Victim is a 13 year old girl. During her examination-in-chief, she stated that the petitioner used to show her obscene pictures and put his hand in her private parts. During cross-examination, she referred to a dispute between the petitioner and her mother over payment of dues. She, however, denied the suggestion that the petitioner had sexually violated her.”
Most remarkably, the Bench then minces no words to hold quite appropriately in the next para of this notable judgment that, “Evidence of a witness is to be taken as a whole. Her evidence during examination-in-chief clearly supports the prosecution case. Other witnesses particularly the mother and relations of the minor are yet to be examined. Release of the petitioner on bail at this stage may adversely affect the case and have impact on other witnesses. Hence, we are not inclined to grant bail to the petitioner. Accordingly, the prayer for bail of the petitioner is rejected.”
Most rationally, the Bench then deems it apposite to expound in the next para that, “This Court is constrained to observe the manner of examination of the minor victim is not in accordance with the procedure laid down in Section 33 of POCSO Act. The aforesaid provision, inter alia, provides for a child friendly atmosphere for examination of a minor. Such examination is to be conducted in presence of her guardian, a friend or relation. The Court is also required to see that the minor is not intimidated through aggressive or embarrassing questions which may affect the dignity of the child. 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.”
It cannot be lost sight of that the Bench then hastens to add in the next para stating that, “The aforesaid requirement was wholly lost sight of by the trial Court who on the mere bidding of the defence, adjourned the cross-examination of the minor to another date. On the adjourned day, the minor appears to have come out with a different version of the incident. This gives rise to an inference during the interregnum the victim had been won over. The Apex Court in a catena of decisions [Vinod Kumar vs. State of Punjab, (2015) 3 SCC 220 (see para57) Rajesh Yadav And Another vs. State of U.P., 2022 SCC OnLine SC 150 (see para 23)] discouraged the practice of long adjournments in course of examination of a witness which leads to witness turning hostile or being won over. The present case is a glowing example of such endemic malady. 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.”
Most forthrightly, the Bench then minces no words to hold in the next para that, “We do not appreciate such course of action. We are of the view Special Courts while conducting examination of a minor must bear in mind the safeguards engrafted in Section 33 of the POCSO Act particularly Sub-section (5) thereof which interdicts calling of the minor witness repeatedly to Court. Whenever a minor victim is brought to the Court, it should be the endeavour of the Judge to see she/he is examined in full on that day itself. 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.”
Furthermore, the Bench then also minces no words to point out in next para that, “We also note the lackadaisical approach in the present case on the part of the investigating agency. No effort to protect the minor and counsel her and her family to participate in the trial had been undertaken. On the other hand, she had been left to the wiles of the accused whose pernicious impart manifested during cross-examination which was held after a fortnight’s adjournment.”
While citing the most relevant case laws, the Bench then enunciates most aptly in the next para that, “In Sampurna Behura vs. Union of India And Others, (2018) 4 SCC 433 and Nipun Saxena And Another vs. Union of India And Others, (2019) 2 SCC 703, the Apex Court issued a slew of directions to ensure effective implementation of the safeguards engrafted in POCSO Act particularly section 33 regarding examination of minor victim in a child friendly atmosphere without disclosing her identity or impairing her dignity.”
Going forward, the Bench then while citing other relevant case laws adds in the next para that, “Further in Alarming Rise In The Number Of Reported Child Rape Incidents, In Re (2020) 7 SCC 87, (2020) 7 SCC 112 and (2020) 7 SCC 130 and Alakh Alok Srivastava vs. Union of India And Others (2018) 17 SCC 291, the Apex Court issued various directions for setting up of exclusive Special Courts in districts, appointments of Special Public Prosecutors and effective functioning of forensic laboratories for speedy disposal of cases. Direction was also issued upon the Chief Justices of the High Courts to constitute a monitoring committee of Judges to monitor progress of trial. In Re Children In Street Situations 2022 SCC OnLine SC 189, the Apex Court set out a Standard Operating Procedure for Courts to follow during video conferencing of child witnesses. These directions seek to create a child friendly atmosphere to minimize inconvenience or discomfort to a minor who may be required to depose in a criminal trial relating to sexual offences.”
Most significantly and as a corollary, the Bench then lays down in the next para that, “In this backdrop, we propose to issue the following practice directions to the Special Courts to ensure a smooth, prompt and seamless examination of the minor victim in sexual offences:-
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 [Krishnakant Tamrakar vs. State of Madhya Pradesh, (2018) 17 SCC 27 (see para 50 and 51.4)]. 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 administration of justice making him liable for ‘criminal contempt’ under section 2(c) of the Contempt of Courts Act;
f) In the event, 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 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 (supra).”
It is in the fitness of things that the Bench then holds in the next para that, “In the present case, we direct the trial court 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.”
Finally, the Bench concludes by holding that, “Registrar General is directed to circulate a copy of this order to the Special Courts in the State of West Bengal for due compliance. Copy of this order be also sent to the Directorate of Prosecution for circulation amongst the Special Public Prosecutors manning the Special Courts under POCSO Act in the State of West Bengal as well as upon the Bar Council of India and Bar Council of West Bengal for circulation amongst its members.”
In summation, the Calcutta High Court has definitely issued a slew of most commendable directions to Special Courts to ensure smooth and prompt examination of minor victims. It definitely merits no reiteration that these landmark directions are worth implementing not just in West Bengal but in each and every part of India! No denying or disputing it!
Sanjeev Sirohi