Guidelines of Supreme Court on non disclosure identity of victim of Sexual offence( 9 Directions)

In view of the aforesaid discussion, we issue the following directions:

1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.

2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.

3. FIRs relating to offences Under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of Indian Penal Code and offences under POCSO shall not be put in the public domain.

4. In case a victim files an appeal Under Section 372 Code of Criminal Procedure, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.

5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.

6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.

7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind Under Section 228A(2)(c) of Indian Penal Code should be made only to the Sessions Judge concerned until the Government acts Under Section 228A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.

8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.

9. All the States/Union Territories are requested to set up at least one 'one stop centre' in every district within one year from today.

44. A copy of this judgment be sent to the Registrar General of all the High Courts so that the same can be placed before the Chairpersons of the Juvenile Justice Committee of all the High Courts for issuance of appropriate orders and directions and also to ensure that sincere efforts are made to set up one stop centres in every district.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 565 of 2012, W.P. (Crl.) Nos. 1, 22, 148 of 2013, 

Decided On: 11.12.2018

Nipun Saxena   Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Madan B. Lokur and Deepak Gupta, JJ.

Citation: (2019) 2 SCC 703

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Whether identity of family members of Rape victim is to be protected?

Before parting, we have noticed that in the
order passed by the learned trial Court, the name of the
victim girl is disclosed. We have also noticed in some
other cases tried by the learned trial Court under Section
376 of IPC or under POCSO Act that the names of the victim
girls or the names of parents of victim girls are
mentioned in the Judgment. Section 228A
of the Indian
Penal Code makes disclosure of the identity of a victim of
certain offences punishable. Printing or publishing name
or any matter which may make known the identity of any
person against whom offence under Sections 376, 376A,
376B,
376C
or 376D,
IPC is alleged or found to have
been committed can be punished. The Apex Court in State of
Karnataka v/s. Puttaraja [ Appeal (crl.) 506 of 199 7
Decided on 27112003]
, has held that, “Though Section
228A
IPC does not put any restriction to print or
publish the name of victim of such offences in the
judgment by the High Court or the Supreme Court, but

keeping in view the social object of preventing social
victimisation or ostracism of the victim of a sexual
offence for which Section 228A
IPC has been enacted it
would be appropriate that in the judgment, be they of
Supreme Court, High Court or the lower Court, the name of
the victim should not be indicated”. Further in State of
H. P. v/s. Shree Kant Shekari (2004 Cri LJ 4232), the
Apex Court has reiterated that position. The relevant
portion of the judgment in Puttaraja case is quoted
below :
" We do not propose to mention the name of the victim.
Section 228A
of the Indian Penal Code 1860 (in short
"IPC") makes disclosure of identity of victim of certain
offences punishable. Printing or publishing name or any
matter which may make known the identity of any person
against whom an offence under Section 376, 376A,
376B,
376C
or 376D
is alleged or found to have been committed
can be punished. True it is, the restriction does not
relate to printing or publication of the judgment by the
High Court or the Supreme Court. But keeping in view the
social object of preventing social victimization or
ostracism of the victim of a sexual offence for which
Section 228A
has been connected, it would be appropriate
that in the judgments, be it of this Court the High Court

or the Lower Court the name of the victim should not be
indicated. We have chosen to describe her as the victim
in the judgment."
09. In view of the aforesaid legal position, we
direct that the learned trial Court shall not in future
indicate the name (either full or even first name) of the
victim of the offences under Section 376, 376A,
376B,
376C
or 376D
of IPC in the judgment and orders. The said
protection can also be extended to the family of the
victim. The identity of parents/ brother/ sister of the
victim is also required to be protected. This Protection
is also required to be given to the victims and their
parents, etc. in cases under Protection of Children from
Sexual Offences Act. It is unfortunate that such
directions are required to be given even after the
pronouncement of decision in Puttaraja in 2003.
10. Another fact that is required to be noted that
all the orders and judgments of all the Courts are
required to be uploaded on the website.
In view of
Section 15A of the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, the victim or first
informant has a right to be heard. Therefore, in
applications for bail or appeals, many times (when above:::

said IPC sections or under Protection of Children from
Sexual Offences Act are also invoked), the victim or her
parent is made party. After uploading of order in such
matters, the identity of the victim would be disclosed and
therefore, directions are required to be given to all the
concerned Courts that precautions should be taken, while
uploading the order or judgment in such bail applications
or any application, so that the identity of the victim or
his / her parents is not disclosed from the same.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 501 OF 2018

Parmeshwar Dnyanoba Nagargoje, Vs  The State of Maharashtra,


CORAM : T. V. NALAWADE &
SMT. VIBHA KANKANWADI, JJ.
DATE : 20-08-2018.
ORAL ORDER : (Per Smt. Vibha Kankanwadi, J)

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When minor child accused of offence under POCSO Act can be released on bail?

In the case in hand the report of the probation officer says that the
applicant is a student of class X; that he is average at studies; that his
conduct is good; that he takes interest in constructive cultural activities; that
he has realised his guilt and is repentant for the same; that there is
improvement in his attitude and that looking to his overall interest, one
chance is required to be given to him. The report nowhere says that if the
applicant is released on bail, he would come into association with any known
criminal or it would expose him to moral, physical or psychological danger or
would it defeat the ends of justice.
Thus considering the facts and circumstances of the case and the
report of the Probation Officer, present revision is allowed. Orders impugned
are hereby set aside. Applicant is directed to be released on bail on his
guardian or parents furnishing a bond in the sum of Rs. 10,000 with one
surety for the like sum to the satisfaction of the concerned Juvenile Justice
Board and also on filing an affidavit by him/her before the said Board to the
effect that:
(i) he shall be responsible for well-being of his son/the applicant,
(ii) he shall ensure that the applicant continues his studies and does not
fall into bad company, and
(iii) he shall report to the concerned Juvenile Justice Board on 28.3.2016
and thereafter once in two months on the dates fixed by the Board
regarding the progress made by his son/the applicant, till the applicant
attains/completes the age of 18 years.
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 814 of 2015

Kamesh Kumar Rambharosha Sahu Vs  State of Chhattisgarh 

Coram:
 Pritinker Diwaker, J
Dated: 11/01/2016
Citation:2016 CRLJ(NOC)134

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Precaution to be taken by court in trial of sex offences against minors

 In the present matter, the petitioner has caused terror upon the
minor victim by committing a criminal act of sexual abuse and by
creating the compelling circumstances as discussed above. There is a lot
of pressure from the accused as well as parents of the victim and the child
witness is being compelled by circumstances not to bring true facts before
the Court. The conduct of the petitioner is apparently going to affect the
due process of law and the testimony of the victim. As a result, the Trial
Court is directed to ensure the examination of the child witness by giving
due protection to him and bring the child out of the pressure of the
petitioner and of the father of the victim and even if need arises, shall also
consider cancellation of bail for the independent testimony of the child.
10. All the Criminal Courts are directed to adopt all the reasonable
precautions to ensure the true testimony of the child witnesses and to 
provide atmosphere and the circumstances to the effect that the child
witnesses shall not be compelled by the circumstances, by the accused
including the parents, from bringing truth before the Court. It shall
further be ensured that the child witnesses be examined in special court
room meant for it and provide all the precautions available to the child
victims under the Prevention of Children from Sexual Offences Act, 2012.
11. Judgment be circulated to all the Criminal Courts below for
implementation of para 10.
 IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.M.C. 4046/2015 & Crl.M.A. Nos.14412-14413/2015
Date of Decision : September 30th, 2015
ANKUSH KUMAR ..... Petitioner

versus
STATE & ANR ..... Respondents

CORAM:
HON'BLE MR. JUSTICE P.S.TEJI

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Leading judgment on investigation and conduct of trial in respect of child victim of sexual offence

 For the sake of convenience, the directions and
guidelines laid down by the Apex Court and this court so far as
case involving a child victim or child witness which are required
to be mandatorily and urgently implemented are culled out as
follows:-
I. POLICE
(i). On a complaint of a cognisable offence involving a child victim being made, concerned police officer shall record the complaint promptly and accurately.(Ref: Court On Its Own Motion vs. State & Anr.)
(ii). Upon receipt of a complaint or registration of FIR for any of the aforesaid offences, immediate steps shall be taken to associate a scientist from Forensic Science Laboratory or some other Laboratory or department in the investigations. The Investigating Officer shall conduct investigations on the points suggested by him also under his guidance and advice.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(iii). The investigation of the case shall be referred to an officer not below the rank of Sub- Inspector, preferably a lady officer, sensitized by imparting appropriate training to deal with child victims of sexual crime.(Ref: Court On Its Own Motion vs. State & Anr.)
(iv). The statement of the victim shall be recorded verbatim.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). The officer recording the statement of the child victim should not be in police uniform.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). The statement of the child victim shall be recorded at the residence of the victim or at any other place where the victim can make a
statement freely without fear.(Ref: Court On Its Own Motion vs. State & Anr.)
(vii). The statement should be recorded
promptly without any loss of time.(Ref: Court On Its Own Motion vs. State & Anr.)
(viii). The parents of the child or any other person in whom the child reposes trust and confidence will be allowed to remain present.(Ref: Court On Its Own Motion vs. State & Anr.)
(ix). The Investigating Officer to ensure that at no point should the child victim come in contact with the accused.(Ref: Court On Its Own Motion vs. State & Anr.)
(x) The child victim shall not be kept in the police station overnight on any pretext, whatsoever, including medical examination.(Ref: Court On Its Own Motion vs. State & Anr.)
(xi). The Investigating Officer recording the statement of the child victim shall ensure that the victim is made comfortable before
proceeding to record the statement and that the statement carries accurate narration of the incident covering all relevant aspects of the case.(Ref: Court On Its Own Motion vs. State &
Anr.)
(xii). In the event the Investigating Officer should so feel the necessity, he may take the assistance of a psychiatrist.(Ref: Court On Its Own Motion vs. State & Anr.)
(xiii). The Investigating Officer shall ensure that the child victim is medically examined at the earliest preferably within twenty four hours (in accordance with Section 164A Cr.P.C) at the nearest government hospital or hospital
recognized by the government.(Ref: Court On Its Own Motion vs. State & Anr.)
(xiv). The Investigating Officer shall ensure that the investigating team visits the site of the crime at the earliest to secure and collect all incriminating evidence available.(Ref: Court On Its Own Motion vs. State & Anr.)
(xv). The Investigating Officer shall promptly refer for forensic examination clothings and articles necessary to be examined, to the forensic laboratory which shall deal with such cases on priority basis to make its report available at an early date.(Ref: Court On Its Own Motion vs. State & Anr.)
(xvi). The investigation of the cases involving sexually abused child may be investigated on a priority basis and completed preferably within ninety days of the registration of the case. The investigation shall be periodically supervised by senior officer/s.(Ref: Court On Its Own Motion vs. State & Anr.)
(xvii). The Investigating Officer shall ensure that the identity of the child victim is protected from publicity.(Ref: Court On Its Own Motion vs. State & Anr.)
(xviii). To ensure that the complainant or victim of crime does not remain in dark about the investigations regarding his complaint/FIR, the complainant or victim shall be kept informed about the progress of investigations. In case the complainant gives anything in writing and requests the I.O., for investigations on any
particular aspect of the matter, the same shall be adverted to by the I.O. Proper entries shall be made by I.O. in case diaries in regard to the steps taken on the basis of the request made by the complainant. The complainant, however, shall not be entitled to know the confidential matters, if any, the disclosure of which may jeopardize the investigations.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xix). Whenever the SDM/Magistrate is requested to record a dying declaration, video recording also shall be done with a view to obviate subsequent objections to the genuineness of the dying declaration.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xx). The investigations for the aforesaid offences shall be personally supervised by the ACP of the area. The concerned DCP shall also undertake fortnightly review thereof. (Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xxi). The material prosecution witnesses cited in any of the aforesaid offences shall be ensured safety and protection by the SHO concerned, who shall personally attend to their complaints, if any. (Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(xxii). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
II RECORDING OF STATEMENT BEFORE MAGISTRATE
(i). The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in
writing.(Ref: Court On Its Own Motion vs. State & Anr.)
(ii). In the event of the child victim being in the hospital, the concerned Magistrate shall record the statement of the victim in the hospital.(Ref: Court On Its Own Motion vs. State & Anr.)
(iii). To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child victim can be recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
(iv). The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of
"Ascertaining voluntary nature of statement" unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). Wherever possible, the IO shall ensure that the statement of the child victim is also video recorded.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). No Court shall detain a child in an institution meant for adults.(Ref: Court On Its Own Motion vs. State & Anr.)
III MEDICAL EXAMINATION
(i) Orientation be given to the Doctors, who prepare MLCs or conduct post mortems to
ensure that the MLCs as well as post mortem reports are up to the mark and stand judicial scrutiny in Courts.(Ref : Mahender Singh Chhabra vs. State of N.C.T. Of Delhi & Ors.)
(ii). While conducting medical examination, child victim should be first made comfortable as it is difficult to make her understand as to why she is being subjected to a medical
examination.
(iii). In case of a girl child victim the medical examination shall be conducted preferably by a female doctor.(Ref: Court On Its Own Motion vs.
State & Anr.)
(iv). In so far as it may be practical, psychiatrist help be made available to the child victim before medical examination at the hospital itself.(Ref: Court On Its Own Motion vs. State & Anr.)
(v). The report should be prepared expeditiously and signed by the doctor
conducting the examination and a copy of medical report be provided to the parents/guardian of the child victim.(Ref: Court On Its Own Motion vs. State & Anr.)
(vi). In the event results of examination are likely to be delayed, the same should be clearly mentioned in the medical report.(Ref: Court On Its Own Motion vs. State & Anr.)
(vii). The parents/guardian/person in whom child have trust should be allowed to be present during the medical examination.(Ref: Court On Its Own Motion vs. State & Anr.)
(viii). Emergency medical treatment wherever necessary should be provided to the child victim.(Ref: Court On Its Own Motion vs. State & Anr.)
(ix). The child victim shall be afforded prophylactic medical treatment against STDs.(Ref: Court On Its Own Motion vs. State & Anr.)
(x). In the event the child victim is brought to a private/nursing home, the child shall be afforded immediate medical attention and the matter be reported to the nearest police station.(Ref: Court On Its Own Motion vs. State & Anr.)
IV COURT
(i) To create a child friendly environment separate rooms be provided within the Court precincts where the statement of the child
victim can be recorded.(Ref : Court On Its Own Motion vs. State & Anr)
(ii) In case of any disability of the victim or witness involving or impairing communication skills, assistance of an independent person who is in a position to relate to and communicate with such disability requires to be taken.
(iii) The trials into allegations of commission of rape must invariably be "in camera" . No request in this behalf is necessary. (Ref : State of Punjab vs. Gurmit Singh)(iv) The Committal Court shall commit such cases to the Court of Sessions preferably within fifteen days after the filing of the chargesheet. (Ref: (2007 (4) JCC 2680 Court On Its Own Motion vs. State & Anr.)
(v). The child witness should be permitted to testify from a place in the courtroom which is other than the one normally reserved for other witnesses.
(vi) To minimise the trauma of a child victim or witness the testimony may be recorded through video conferencing or by way of a close circuit television. If this is not possible, a screen or some arrangement be made so that the victims or the child witness do not have to undergo seeing the body or face of the accused. The screen which should be used for the
examination of the child witness or a victim should be effective and installed in such manner that the witness is visible to the trial judge to notice the demeanour of the witness. Single visibility mirrors may be utilised which while protecting the sensibilities of the child, shall ensure that the defendant's right to cross examination is not impaired. (Ref : Sakshi vs UOI).(vii) Competency of the child witness should be evaluated and order be recorded thereon.
(viii) The trial court is required to be also satisfied and ought to record its satisfaction
that the child witness understands the
obligation to speak the truth in the witness box. In addition to the above, the court is required to be satisfied about the mental capacity of the child at the time of the occurrence concerning which he or she is to testify as well as an ability to receive an accurate impression thereof. The court must be satisfied that the child witness has sufficient memory to retain an independent recollection of the occurrence and a capacity to express in words or otherwise his or her memory of the same. The court has to be
satisfied that the child witness has the capacity to understand simple questions which are put to it about the occurrence.
There can be no manner of doubt that
record of the evidence of the child witness must contain such satisfaction of the court.
(ix) As far as possible avoid disclosing the name of the prosecutrix in the court orders to save further embarrassment to the victim of the crime; anonymity of the victim of the crime must be maintained as far as possible
throughout.
(x) The statement of the child victim shall be recorded promptly and at the earliest by the concerned Magistrate and any adjournment shall be avoided and in case the same is unavoidable, reasons to be recorded in writing. (Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi)
(xi) The court should be satisfied that the victim is not scared and is able to reveal what has happened to her when she is subjected to examination during the recording of her
evidence. The court must ensure that the child is not concealing portions of the evidence for the reason that she has bashful or ashamed of what has happened to her.
(xii) It should be ensured that the victim who is appearing as a witness is at ease so as to improve upon the quality of her evidence and
enable her to shed hesitancy to depose frankly so that the truth is not camouflaged on account of embarrassment at detailing the occurrence and the shame being felt by the victim.
(xiii) Questions should be put to a victim or to the child witness which are not connected to case to make him/her comfortable and to
depose without any fear or pressure;
(xiv) The trial judge may permit, if deemed desirable to have a social worker or other friendly, independent or neutral adult in whom the child has confidence to accompany the child who is testifying (Ref Sudesh Jakhu vs. K.C.J. & Ors).
This may include an expert supportive of the victim or child witness in whom the witness is able to develop confidence should be
permitted to be present and accessible to the child at all times during his/her testimony. Care should be taken that such person does not influence the child's testimony.
(xv) Persons not necessary for proceedings including extra court staff be excluded from the courtroom during the hearing.
(xvi) Unless absolutely imperative, repeated appearance of the child witness should be prevented.
(xvii) It should be ensured that questions which are put in cross examination are not designed to embarrass or confuse victims of rape and sexual abuse (Ref : Sakshi vs UOI).(xviii) Questions to be put in cross examination on behalf of the accused, in so far as they relate directly to the offence, should be given in writing to the presiding officer of the court who may put them to the victim or witnesses in a language which is clear and is not embarrassing. (Ref : Sakshi vs. UOI)(xix) The examination and cross examination of a child witness should be carefully monitored by the presiding judge to avoid any attempt to
harass or intimidate the child witness.
(xx) It is the duty of the court to arrive at the truth and subserve the ends of justice. The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the
witnesses. The judge has to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, the court can control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency. Upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the judge must exercise the vast powers conferred under section 165 of the Evidence Act and section 311 of the CrPC to elicit all necessary materials by playing an active role in the evidence collecting process. (Ref : Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors.)(xxi) The judge is expected to actively
participate in the trial, elicit necessary materials from the witnesses at the appropriate context which he feels necessary for reaching the correct conclusion. The judge has uninhibited power to put questions to the witness either during chief examination or cross examination or even during re-examination for this purpose. If a judge feels that a witness has committed an error or slip, it is the duty of the judge to ascertain whether it was so, for , to err is human and the chances of erring may accelerate under stress of nervousness during cross examination. (Ref: AIR 1997 SC 1023 (para 12) State of Rajasthan vs. Ani alias Hanif & Ors.)
(xxii) The court should ensure that the
embarrassment and reservations of all those concerned with the proceedings which includes the prosecutrix, witnesses, counsels may result in camouflage of the ingredients of the offence. The judge has to be conscious of these factors and rise above any such reservations on
account of embarrassment to ensure that they do not cloud the truth and the real actions which are attributable to the accused persons.
(xxiii) The court should ascertain the spoken language of the witness as well as range of vocabulary before recording the deposition. In making the record of the evidence court should avoid use of innuendos or such
expressions which may be variably construed. For instance "gandi harkatein" or "batamezein" have no definite meaning. Therefore, even if it is necessary to record the words of the
prosecutrix, it is essential that what those words mean to her and what is intended to be
conveyed are sensitively brought out.
(xxiv) The court should ensure that there is no use of aggressive, sarcastic language or a gruelling or sexually explicit examination or cross examination of the victim or child witness. The court should come down with heavily to discourage efforts to promote specifics and/or illustration by any of the means offending acts which would traumatise the victim or child witness and effect their testimony. The court to ensure that no element of vulgarity is
introduced into the court room by any person or the record of the proceedings.
(xxv) In order to elicit complete evidence, a child witness may use gestures. The courts must carefully translate such explanation or description into written record.
(xxvi) The victim of child abuse or rape or a child witness, while giving testimony in court should be allowed sufficient breaks as and when required. (Ref : Sakshi vs. UOI)(xxvii) Cases of sexual assaults on females be placed before lady judges wherever
available. (Ref: State of Punjab vs. Gurmit Singh)
To the extent possible, efforts be
made that the staff in the courtroom concerned with such cases is also of the same gender.
(xxviii) The judge should be balanced,
humane and ensure protection of the dignity of the vulnerable victim. There should be no expression of gender bias in the proceedings. No humiliation of the witness should be
permitted either in the examination in chief or the cross examination.
(xxix) A case involving a child victim or child witness should be prioritised and
appropriate action taken to ensure a speedy trial to minimise the length of the time for which the child must endure the stress of involvement in a court proceeding. While considering any request for an adjournment, it is imperative that the court considers and give weight to any adverse impact which the delay or the
adjournment or continuance of the trial would have on the welfare of the child.
V GENERAL
(i) Effort should be made to ensure that there is continuity of persons who are handling all aspects of the case involving a child victim or witness including such proceedings which may be out of criminal justice system. This may involve all steps commencing from the
investigation to the prosecutor to whom the case is assigned as well as the judge who is to conduct the trial.
(ii) The police and the judge must ascertain the language with which the child is conversant and make every effort to put questions in such language. If the language is not known to the court, efforts to join an independent translator in the proceedings, especially at the stage of deposition, should be made.
(iii) It must be ensured that the number of times that a child victim or witness is required to recount the occurrence is minimised to the absolutely essential. For this purpose, right at the inception, a multidisciplinary team involving the investigating officer and the police; social services resource personnel as well as the prosecutor should be created and utilised in the investigation and prosecution of such cases involving a child either as a victim or a witness.
This would create and inspire a feeling of confidence and trust in the child.
(iv) The child victim shall not be separated from his/her parents/guardians nor taken out from his/her environment on the ground of "Ascertaining voluntary nature of statement" unless the parents/guardian is reported to be abusive or the Magistrate thinks it appropriate in the interest of justice.(Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi)
(v) Courts in foreign countries have evolved several tools including anatomically correct illustrations and figures (as dolls). No instance of such assistance has been pointed out in this court. Extensive literature with regard to such aids being used by foreign courts is available. Subject to assistance from experts, it requires to be scrutinised whether such tools can be utilised in this country during the recording of the testimony of a child victim witness so as to accommodate the difficulty and diffidence faced. This aspect deserves serious attention of all concerned as the same may be a valuable tool in the proceedings to ensure that the complete truth is brought out.
(vi) No court shall detain a child in an institution meant for adults.(Ref : Court On Its Own Motion vs. State of N.C.T. Of Delhi). This would apply to investigating agencies as well.
(vii) The judge should ensure that there is no media reporting of the camera proceedings. In any case, sensationalisation of such cases should not be permitted.
84. The issue with regard to teaching of offences regarding
sexual assault and rape itself has been a source of much
discussion. I am informed that there are instances of even legal
educators being bashful and embarrassed about teaching such
subjects. Judges and counsels are products of the legal
education. The multi-faceted problem and concerns noticed
above are not confined to ensuring gender justice in courts alone.
In this background, it is absolutely imperative that these areas of
law and the issues which have been raised herein are taken up
with all seriousness. Perhaps the programme of continuing legal
education needs to take a look on these questions.

Delhi High Court

Virender vs The State Of Nct Of Delhi on 18 September, 2009

Author: Gita Mittal.

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