The Bombay High Court recently comprising of a bench of Revati Mohite Dere while dealing with a case under POCSO Act observed that delay in trials in sexual abuse cases often leads to re-victimization and ignominy as the trial process itself makes the victim re-live the horrific experience, and in case of children it may lead to further trauma due to their vulnerability. (Atul Gorakhnath Ambale Versus The State of Maharashtra)
The bench remarked, "Delay in examination of the child/victim would only add to the trauma, as the child/victim has to re-live the sexual assault, whilst deposing in Court. This would certainly add to the trauma of a child/victim. If the child/victim is examined expeditiously as mandated by sub-section (1) of Section 35 of the POCSO Act, the child/victim would be in a position to recall the incident vividly, as it happened and nail the perpetrator. Infact, if the child/victim is examined after a couple of years, delay in examination of the child/victim would only stand to benefit the accused, as the child/victim through counselling, is counselled to deal and overcome the emotional trauma and wipe out the traumatic memories, thus, making it difficult for the child/victim to recall the incident vividly, whilst deposing in court."
Facts of the case
A bail application was filed by a POCSO Act accused on the ground that there had been no progress in the trial despite an order calling for expeditious completion of the same the court was informed that the victim had not been examined since 2019.
Courts Observation and Judgment
The bench at the very outset taking note of the fact that in several cases the child/victim are not examined for year remarked, "it is noticed that in several cases that the child/victim are not examined for years and therefore, it is imperative to give some directions to all Special Courts, with respect to examination of the child/victim in POCSO cases. The trial Courts i.e. Special Courts dealing with POCSO cases to atleast record the evidence of the child/victim, as expeditiously as possible and at the earliest, keeping in mind the mandate of sub-section (1) of Section 35.
There may be cases where the child/victim has suffered a psychological trauma, due to which, it may not be possible to record the deposition of the child/victim, in terms of the mandate of sub-section (1) of Section 35 of the POCSO Act, hence, in these circumstances, certainly the recording of the evidence of the said child/victim can be postponed by the learned Judge or for any other reasons, however, reasons must be recorded for the said delay. Younger the child/victim, the Courts to endeavour to record their evidence, keeping in mind the mandate of Section 35(1) of the POCSO Act, lest, the child/victim forgets the incident due to passage of time and through counselling."
The bench taking note of the delay passed the following directions to all the Special Courts in Maharashtra.
(i) The Special Courts to ensure that the deposition of the child/victim is recorded as expeditiously as possible, keeping in mind the mandate of the POCSO Act, and the observations made by this Court Hereinabove.
(ii) The Special Courts to conclude the recording of evidence i.e.examination-in-chief and cross-examination of the victim, as expeditiously as possible, preferably on the same day, is warranted.
(iii) The Courts to also ensure that the victim/child is not called frequently to the Court, as this would add to victim/child’s trauma.
(iv) Adjournments whilst examining the child/victim should be minimal and if granted, reasons be recorded warranting adjournment.Unwarranted adjournments should not be entertained.
(v) The child friendly practises be taken/ adopted to ensure that the child/victim feels safe and not in any way exposed to the accused, and
(vi) To ensure that the parents of the child or any other person in whom the child has trust or confidence, is presented at the time of examination of child.
The bench disposing off the application remarked, "The directions of the Apex Court in Children in Street Situations, In Re, 2022 SCC OnLine SC 189 and other judgments in this regard be followed scrupulously whilst conducting trials under the POCSO Act."
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