Mumbai: Critical POCSO provision remains mostly on paper

Procedures, overburdened police and judicial system ensure that court can hear victim’s testimony only several months, if not a few years, after the charge sheet is filed.

Bhavna UchilUpdated: Sunday, December 04, 2022, 09:31 AM IST
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There is reason the statement of a minor victim of sexual assault needs to be recorded speedily. | Representative pic

Mumbai: The Protection of Children from Sexual Offences (POCSO) Act, a legislation designed to protect children from sexual predators, requires the statement of a victim to be recorded before a special court within 30 days of the court taking cognizance of the offence. In reality, however, in most cases this task takes months, if not years.

For instance, in one case where the victim was a 10-year-old, the charge sheet was filed on Aug 27, 2019, but the child’s evidence was recorded before the special court only on Sep 7, 2021, more than two years after the incident.

In another case where the victim was an 11-year-old, the complaint was lodged on June 30, 2013, the charge sheet filed the very next month and cognizance taken by the court, but the statement of the victim came to be recorded only on Jan 5, 2017, more than three-and-a-half years later.

It is Section 35 of the POCSO Act that specifies the time frame for recording of the child’s evidence. But the law also offers a way out of the problem: the court has to specify reasons for the delay in recording the evidence.

The Act has a time frame for concluding a case

Similarly, the Act has a time frame for concluding a case: within a year of the court taking cognizance of the charge sheet. But this provision, too, has a loophole: the addition of the phrase ‘as far as possible’.

There is reason the statement of a minor victim of sexual assault needs to be recorded speedily. Unlike adults, children forget details more easily and this could hurt the quality of their testimony before a court, making the child seem less credible.

Under the POCSO Act, paramount importance is given to the victim’s testimony and convictions are made as long as the court is confident about the statement. While in other offences the burden is upon the prosecution to prove the offence against an accused, under the POCSO Act, the burden is reversed and it is assumed that an accused was in the mental state to have committed the offence. Almost everything, therefore, rests on the victim’s testimony.

The child has to face cross-examination

In court, though, the child has to face cross-examination and field questions on specifics such as date and time, and the chronology of events on the day or days of the incident.

Jaini Nandu is a clinical psychologist. Explaining how a child’s mind works, she says, “A child’s mind is focused on the present. They hardly speak of the past or the future — very little. For them timelines can be vague and not clear as they are to adults. For them two months later could be like two minutes later.”

This, says Jaini, is because children are yet to understand the concept of time, which is confusing to their minds. “In the case of children, manipulation is easy,” she says. “They are like an open hard disk, easy to play with and ready to make a guess.”

The child is unclear and confused

Cross-examination by defence lawyers also involves making suggestions to the child on dates and timelines so as to defeat the prosecution’s case. If due to lapse of time, the child is unclear and confused, it benefits the accused as the child may be ready to accept the suggestions of the defence.

Besides, as recording of the testimony is delayed, chances of out-of-court settlements increase. In some cases, if the minor has attained a marriageable age by the time the testimony is to be recorded, she is reluctant to get involved in the case for fear that it might affect her family life.

There is also the risk of the victim going untraceable due to the delay, most cases under POCSO being of victims from poor strata living in slum areas. Sometimes, the victim and their family simply do not want to revisit the trauma.

The trial can only begin once the procedure of framing of charges

Special Public Prosecutor Veena Shelar, who deals with POCSO cases in a special court in the city, explains why the testimony of the victim is delayed. “The trial can only begin once the procedure of framing of charges against the accused is done,” says Shelar.

“But many times, once an accused gets bail, he does not appear before the court so that charges can be framed against them.” The framing of charges requires the presence of the accused.

Between the court taking cognizance of the charge sheet and the framing of charges, there is another impediment in the form of compliances. These are that the prosecution provide the court with the list of witnesses, the documents or articles that are part of the evidence that it is relying upon, and medical reports.

A mobile is used and if it is sent for forensic analysis

These take time, too, with forensic reports playing an important role in sexual assault cases. In some crimes, a mobile is used and if it is sent for forensic analysis and has not been returned to court, then, too, there is a delay.

As a result, sometimes several months or a year or more passes before charges are framed. This was highlighted through a petition filed before the Bombay High Court recently regarding a case where charges were framed approximately three years after the charge sheet was filed. Till the date of filing of the petition, the testimony of the victim in the case had not been recorded.

Advocate Amla Shejwadkar appeared for the petitioner in the case. She says that due to late recording of testimony, in many cases, minors can’t remember crucial details of the incident and are hence not able to give testimony that would stand judicial scrutiny.

Some do end up turning hostile in court

Over and above that is the issue of the victim coming under pressure not to depose against the perpetrator, especially if he is a family member or neighbour. Some do end up turning hostile in court, as happened last week when a stepdaughter and her mother turned hostile as the stepfather was also the family’s sole earning member and had spent a long time in custody.

Shejwadkar points out that the special courts are also overburdened with a huge number of cases to handle everyday and cannot give attention to every case as a result. “We need more special courts, more judges, more police staff,” she says.

“Many times, adjournments are given when the accused is not produced in court — which is at least half the time — or if his advocate is not present. It may be possible to comply with the provision if courts pass stringent orders to avoid such conduct.”

Infographics:

What the courts have done:

An ad hoc committee was set up by the Bombay High Court to consider the issue of delay in trials by the special court under Protection of Children from Sexual Offences (POCSO) Act. The committee comprises three High Court judges.

What SC said in Alakh Shrivastava case:

It acknowledged the inconsiderate delay in disposal of innumerable POCSO cases.

The apex court had asked special judges designated under POCSO Act to fast-track the cases by “not granting unnecessary adjournments” and thus completing the trial in a time-bound manner.

It asked the high courts to constitute a committee of three judges to regulate and monitor the progress of the trials under the POCSO Act.

The Director General of Police was asked to constitute a special task force which would ensure that the investigation was properly conducted and witnesses are produced regularly during the trial.

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