Monday, October 2, 2023

Allahabad High Court allows bail application observing CWC report not in conformity with statutory parameters laid down in Rule 4 of the POCSO rules 2020

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The Allahabad High Court while allowing the bail application observed that CWC reports are often deficient and not in conformity with the statutory parameters laid down in Rule 4 of the POCSO Rules, 2020. This creates impediments in fair administration of bail jurisdiction in POCSO Act offences and in dispensation of justice to child victims of sexual offences.

A Single Bench of Justice Ajay Bhanot passed this order while hearing a Criminal Misc Bail Application filed by Siddhant @ Aashu.

This is the second bail application.

By means of the bail application the applicant has prayed to be enlarged on bail in Case at Police Station-Badgaon, District-Saharanpur under Sections 363, 366, 376D IPC and Section 5(g)6 of the POCSO Act.

The applicant is on interim bail granted by the Court on 22.08.2023.

Atmaram Nadiwal, Counsel and Dinesh Kumar Yadav, counsel for the applicant has made these submissions:-

I. The applicant cannot be penalized for the failure of the Child Welfare Committee.

II. The CWC report has no bearing on the bail application.

Paritosh Kumar Malviya, AGA-I; Rishi Chaddha, AGA and Sujata Chaudhary, AGA for the State made the following submissions:-

I. CWC report is an indispensable feature of the POCSO Act and assists in securing justice to the victim.

II. CWC report is liable to be examined by the court while hearing bail in light of judgement rendered by the Court in Junaid Vs State of U.P and another.

III. CWC report was not drawn in adherence to POCSO Act and Rules and has resulted in a miscarriage of justice.

The Court observed that,

The case at hand also requires consideration of the role of the Child Welfare Committee report in ensuring a just hearing to the victim in bail proceedings in offences under the Protection of Children From Sexual Offences Act, 2012.

The POCSO Act, 2012 read with Protection of Children from Sexual Offences Rules, 2020 create a composite scheme to serve equal justice to victims, and the CWC report has a direct bearing on fair administration of bail jurisdiction and the trial process.

The prosecution case discloses that after the victim was abducted, the accused were chased and intercepted by the villagers. The F.I.R was lodged promptly. The accused were arrested at the spot and the victim too was recovered. Medical report was drawn up on the same day. The statements of the victim under Sections 161 Cr.P.C and 164 Cr.P.C, accounts of the witnesses as well as medical report fully corroborated the prosecution story of abduction and rape. However subsequently the victim turned hostile in the trial. In these circumstances the implementation of the POCSO Act, 2012 and the role of the CWC reports in securing justice to child victims of sexual offences need to be examined.

The CWC report available with the AGA does not depict examination of socio-economic circumstances of the victim and of the accused persons. The appointment of the support person in this case was not preceded by requisite enquiries and made in a mechanical manner. Support person did not send any report regarding the victim’s condition to the CWC at any stage. The mental condition of the victim after the sexual assault was not adverted to in the report. These shortcomings had far reaching consequences on the trial. Protection and rehabilitation needs of the child victim in this case were absent in the report.

In summation the CWC report neglected various relevant aspects regarding the victim’s condition and is not in consonance with the statute.

The role of the CWC commences upon receipt of a report in Rule 4(3) of the POCSO Rules, 2020. The CWC shall thereafter proceed to make its determination under Rule 4 (5) of the POCSO Rules, 2020, in accordance with the powers vested under Section 31 (1) of the JJ Act, 2015.

The Court said that engaging with child victims of sexual offences and evaluating their conditions is a complex task. The process requires sensitive engagement and professional handling of the victim by experts in child psychology, mental health and allied fields. In many instances CWC members are not professional psychologists or experts in mental health and behavioural sciences, and often do not have a ready access to the advice of the latter. Absence of expert advice results in infirmities in CWC reports which may inflict lasting traumas upon victims, impede their rehabilitation and even cheat the process of justice. In these circumstances it is mandatory for the CWC to work with expert agencies to develop a scientific framework for evaluating the mental condition and needs of a child victims of sexual abuse.

The Court found that CWC reports are often deficient and not in conformity with the statutory parameters laid down in Rule 4 of the POCSO Rules, 2020. This creates impediments in fair administration of bail jurisdiction in POCSO Act offences and in dispensation of justice to child victims of sexual offences.

The Court noted that the CWC have not been provided with the necessary infrastructure and lack the required wherewithal to discharge their functions. The State Government/Additional Chief Secretary, Government of U.P. Lucknow, are directed to urgently evaluate and upgrade infrastructure available with the CWC to facilitate discharge of their statutory functions.

The following arguments made by Atmaram Nadiwal, counsel and Dinesh Kumar Yadav, counsel on behalf of the applicant, which could not be satisfactorily refuted Paritosh Kumar Malviya, AGA-I, Rishi Chaddha, AGA and Sujata Chaudhary, AGA for the State from the record, entitle the applicant for grant of bail:

I. The first informant (father of the victim) as well as the victim in their testimonies before the trial court have repudiated the prosecution case. The aforesaid witnesses have been declared hostile at the instance of the prosecution.

II. The applicant is a law abiding citizen who cooperated with the police investigations and had joined the trial.

III. The trial is moving at a snail’s pace and is not likely to conclude anytime in the near future. The applicant is not responsible for the delay in the trial.

IV. Inordinate delay in concluding trial has led to virtually an indefinite imprisonment of the applicant without there being any credible evidence to implicate him in the offence and violates the rights of the applicant to speedy trial.

V. The applicant claims congruency in role and seeks parity in relief granted to the co-accused who has been enlarged on bail by the Court by order dated 27.07.2023.

VI. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.

“CWC while creating the report has to be conscious of the scope and limitations of its jurisdiction. The CWC report is not part of the investigations made by the police into the offences under Section 173 Cr.P.C. The report cannot be equated with the statements of the victim made under the relevant provisions of the Cr.P.C.

The CWC has to adhere to norms of legal propriety and act within the bounds of its jurisdiction in order to achieve its statutory purpose. The CWC acting in consonance with these tenets will sensitize the statutory authorities and the process of justice to the plight of victims and bring their rights to fruition.

Dysfunctions of the CWCs and neglect of their reports stymies the operation of the POCSO Act, 2012, negates the promise of the legislature and degrades the quality of justice for the child victims of sexual abuse. Remedial action has to be taken by the State Government on an urgent basis”, the Court said while allowing the bail application.

The Court ordered that,

Let the applicant- Siddhant @ Aashu be released on bail in the aforesaid case crime number, on the sureties already furnished while being enlarged on interim bail. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence or influence any witness during the trial.

(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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