Kerala HC Issues General Directions For Investigation And Trial In POCSO Cases

In a righteous, remarkable and recent decision, the Kerala High Court in Abhishek K.A. @ Bhanu vs. State of Kerala in Case No. : CRL.A. No. 1087 of 2019 has as recently as on September 9, 2020 issued general directions to be followed by the Investigating authorities and Trial Courts while dealing with POCSO crimes and cases. Justice PB Suresh Kumar who authored this latest, landmark and extremely laudable judgment minced no words to state upright that lack of professionalism is writ large in the investigations in the POCSO cases. This generated the dire need for the issuance of general directions for investigation and trial in POCSO cases. The needful was done by the Kerala High court in this noteworthy judgment!

For the sake of brevity, it would be wise to straightaway discuss the general directions issued by the Kerala High Court in this case which has made this decision so landmark. It is stated in para 14 that, “On a careful appraisal of the situations prevailing in the State as regards implementation of the provisions of the POCSO Act revealed from the large number of cases arising under the statute, I am of the view that the system in place needs to be improved radically, and the same would not be possible without the interference of this court. In the aforesaid circumstances, the following general directions are issued in exercise of the power of this court under Articles 226 and 227 of the Constitution of India, with a view to protect the children involved in the cases from the risk of secondary victimization and to make the justice delivery under the statute effective and meaningful:

1.  The State Government shall take immediate steps to make the One-Stop Support Centres directed to be established by the Apex Court in Nipun Saxena, operational. The State Government shall thereafter establish in a time bound manner as many One-Stop Support Centres needed in the State, so that victims of cases arising under the POCSO Act need not go anywhere else for the purposes of the POCSO Act.

2.  The State Government shall appoint a Nodal Officer at the appropriate level, within two months from the date of receipt of a copy of the judgment; to coordinate the activities of the various Government Departments towards implementation of the provisions of the POCSO Act, and that officer shall identify and resolve the issues that impede the proper implementation of the POCSO Act in the State in the manner in which it is conceived. That officer shall also be the one point contact for all stakeholders to place before the Government the various issues that impede the implementation of the statute to be tackled by the Government.

3.  The Nodal Officer so appointed shall be responsible for coordinating the training of the various stakeholders including the Police personnel in juvenile justice principles, to ensure consistency in their approach.

4.  The Registrar (Subordinate Judiciary) of this Court shall, in coordination with the Nodal Officer of the State Government and the Kerala Judicial Academy, impart to the Presiding Officers of the Special Courts training in juvenile justice principles from the best available resources, including the training of UNICEF.

5.  The State Government shall consider whether the Child Protection Officers and Child Welfare Officers in the Police force could be formed into a separate cadre, so that they would function as Child Protection Officers and Child Welfare Officers wherever they are transferred and if it is not possible, ensure that Child Protection Officers and Child Welfare Officers are posted in every police station after appropriate training.

6.  The State Government shall take immediate steps to fill up the vacancies in the Forensic Science Laboratories in the State to ensure that shortage of man power in the Laboratories is not hampering investigations and trials of the cases arising under the POCSO Act.

7.  The State Government shall take appropriate steps forthwith to ensure that competent among the eligible aspirants for appointment as Special Public Prosecutor are appointed to that post.

8.  The Director General of Prosecution and the State Public Prosecutor shall ensure that the Special Public Prosecutors conducting prosecution in cases arising under the POCSO Act are imparted proper training either directly or in co-operation with the Kerala Judicial Academy.

9.  The State Police Chief shall designate a woman IPS officer in every district, to oversee and ensure that the investigations of cases arising under the POCSO Act are conducted strictly adhering to the provisions contained in the POCSO Act and the Rules made thereunder and having due regard to the guidelines formulated under Section 39 of the POCSO Act. If a woman IPS Officer is not available in a district, the State Police Chief would be free to designate one of the available IPS officers for the said purpose.

10. The IPS officers so designated shall ensure that investigation of the cases arising under the POCSO Act are conducted only by the officers who are trained in Juvenile Justice Principles.

11. The IPS officers so designated shall ensure that statements of the children involved in the cases are taken only by trained officers, adhering to the guidelines prepared by the State Government in this regard.

12. The IPS officers so designated shall ensure that statements of the children involved in the cases are taken only when they are physically and psychologically fit to give statements.

13. The Magistrate or Police Officer recording the statements of the children involved in the cases shall, wherever possible, ensure that the audio and video of the same are recorded, as provided for under Section 26(4) of the POCSO Act.

14. The IPS officer so designated shall ensure that evidence to prove the sexual abuse through physical as well as behavioural indicators are also collected in every case, having due regard to the guidelines formulated by the State Government in this regard.

15. The IPS officer so designated shall ensure that the experts in the field of Psychology and Psychiatry are cited as witnesses in cases where the behavioural indicators of the child need to be explained.

16. The IPS officer so designated shall ensure that the investigating officers are not swayed by any sort of pressures from any corner, whatsoever, including media.

17. The IPS officer so designated shall ensure that the medical evidence collected by the investigating officers in the cases are consistent with the statement of the children and if not, take necessary steps to conduct further probe as to the inconsistency.

18. The IPS officer so designated shall ensure, before filing the final report in every case, that satisfactory evidence is collected to arrive at the conclusion as to the guilt or innocence of the accused, and if the case is built solely on the statement of the child, ensure also that the statement of the child is one voluntarily given, if necessary, by examining the audio/video recording of the statement and shall, if necessary, obtain the opinions of Psychologists, Psychiatrists and other experts in the field to ensure the correctness of the statements.

19. The Kerala State Legal Services Authority shall prepare a separate panel of experienced advocates having sufficient standing to represent child victims of sexual abuse cases to advise their family/guardians as to their rights and for rendering necessary legal aid to them in the various proceedings in respect of the child.

20. As and when the first information report concerning an offence under the POCSO Act is furnished to the Special Court, the Special Court shall give a communication to the District Legal Services Authority concerned and the District Legal Services Authority shall provide a lawyer to the family or the guardian of the child forthwith, if the family or the guardian of the child are unable to afford a lawyer.

21. The lawyer engaged by the family or the guardian of the child, or the lawyer provided by the Legal Services Authority to the family or guardian of the child, as the case may be, shall be at liberty to move the Legal Services Authority for the various benefits to which the child is entitled to, including the benefits in terms of the guidelines issued by the Government under Section 39 of the POCSO Act.

22. The lawyer engaged by the family or the guardian of the child, or the lawyer provided by the Legal Services Authority to the family or guardian of the child as the case may be, shall be at liberty to move the Special Court for appropriate directions for interim compensation, after the registration of the first information report, as provided for under Rule 9 of the Protection of Children from Sexual Offences Rules, 2020, and if interim compensation is ordered by the Special Court, the same shall be forthwith paid to child by the Legal Services Authority.

23. The lawyer engaged by the family or the guardian of the child, or the lawyer provided by the Legal Services Authority to the family or guardian of the child, as the case may be, shall be at liberty to move the Special Court for appropriate directions regarding the investigation of the case in accordance with the decisions of the Apex Court in Sakiri Vasu v. State of U.P., (2008) 2 SCC 409 and Vinubhai Haribai Malaviya and Others v. State of Gujarat and Another, 2019 SCC Online SC 1346.

24. The State Government shall take necessary steps forthwith to enable the Kerala State Legal Services Authority to draw and disburse the compensation payable to the victims in cases arising under the POCSO Act, in terms of the provisions of the Kerala Victim Compensation Scheme 2017 by considering the requests made by the Legal Services Authority in this regard, or by providing advance amount to them, and shall ensure that no victim is made to wait for the compensation ordered to be paid by the Special Court, especially for meeting an urgent need.

25. The Special Courts shall ensure that the trial in the cases arising under the POCSO Act is conducted having due regard to the guidelines prescribed by the State Government under Section 39 of the POCSO Act.

26. The Nodal Officer directed to be appointed by the Government in terms of this order shall file a report in this matter once in three months, until relieved from that obligation, indicating the various steps taken in compliance with the directions in this order, notwithstanding the disposal of the criminal appeal, and the criminal appeal would be deemed to be pending for the said limited purpose. The Nodal Officer would also be free to seek appropriate modification of this order, if situations warrant.

27. The registry shall communicate this order to the Special Courts in the State, the Judicial Magistrates in the State empowered to record the statements of the witnesses, the Director General of Prosecution and the State Public Prosecutor, the Kerala State Legal Services Authority and to the Kerala Judicial Academy.

Most significantly, it goes without saying that these invaluable general directions for investigation and trial in POCSO cases must be implemented forthwith in letter and spirit. It will ensure that children’s legal rights are protected and properly given effect to by which the concerned child would benefit immensely! It brooks no more delay! There can be no denying it! All the lawyers, Judges, law students and those having an interest in law must read these invaluable general directions as it will enable them to have a better understanding on this key subject!

As it turned out, the Kerala High Court thus dismissed the appeal that the accused in this case had filed against his conviction and sentence for his worst sexual acts against a boy of 11 years. The Kerala High Court noted in its judgment that it is explicit from the materials on record that the prosecution has proved the guilt of the accused under Sections 5(l) and 5(m) read with Section 6 of the POCSO Act, beyond reasonable doubt. Very rightly so!

Sanjeev Sirohi