POCSO: HOW TO SETTLE AGE CONTROVERSY

 

 

POCSO: HOW TO SETTLE AGE CONTROVERSY

 

As per POCSO (Protection of Children From Sexual Offences Act) 2012 (In short POCSO) cases, age of the victim often comes to centre stage, in as much as, in order to attract the provision of POCSO, the requisites are to be fulfilled and one of the pre-requisite being age of the victim. Even age of the delinquent shall also have significance in certain cases.

Before delving further it is necessary to point out that a delinquent juvenile on the date of incident has certain statutory protection under the provisions of The Juvenile Justice (Care & Protection of Children) Act, 2015 JJ Act, 2015( In short JJ Act). Similarly, whether POCSO Act 2012 shall be attracted if the victim is a child within the meaning of the POCSO Act and therefore age of the victim is also important.

The Juvenile Justice (care & Protection of Children) Act, 2000 was enacted with a view to consolidate law and also provide for amendment in respect of juvenile in conflict with law. It was felt necessary to provide safeguard and care by adopting child friendly approach, not only in abstract, but also during the process of adjudication of case related to a child with underlying object of rehabilitating the children.

As the present discussion revolves around the age of the delinquent and victim in POCSO cases, therefore, the focus shall be on that aspect. In this context, JJ Act 2000 and amended JJ Act of 2015 shall be of much significance.

The Supreme Court judgment captioned as Rishipal Singh Solanki vs The State Of Uttar Pradesh bearing criminal appeal no. 1240/2021 arising out of SLP (Crl) No. 6223/2021 shall provide insight on several issues in this regard with a view to come to conclusion.             

                        

     

                        PRESUMPTION OF AGE

Section 94 of the Juvenile Justice Act, 2015 raises a presumption regarding juvenility of the age of the child brought before the JJ board or the Committee. But in case, the Board or Committee has reasonable grounds for doubt about the person brought before it is a child or not, it can undertake the process of determination of age by seeking evidence. Thus, in the initial stage a presumption that the child brought before the Committee or the Juvenile Justice Board is a juvenile has to be drawn by the said authorities. However, the said presumption should not be arbitrary and if there is reasonable grounds of doubt regarding the person brought before it is a child or not, the Board can undertake the process of age determination by the evidence which can be in the following form:

(i) Date of birth certificate from the school or the Matriculation certificate from the concerned board, if available or in the absence thereof;

(ii) The birth certificate given by a corporation or by a municipal authority or a panchayat and in the absence of the above;

(iii) Age has to be determined by an ossification test or any other medical age determination test conducted on the orders of the committee or the board.

Ossification test

The Ossification test is a test related to bone for determination of proximate age of the person. The said test may determine the age of a person based on degree of fusion of bone since birth and up to 25 years of age. The process of ossification is also called as osteogenesis. This is an indicator of skeletal and biological age of a person and may help in determining the age of the concerned. The radiography of wrist and hand is relevant till around age of Eighteen (18) years and beyond that i.e up to 22 years of age, the medial age of clavicle is relevant. Though, ossification test is often used in case of doubt and in absence of any corresponding documentary proof, still, for determining the age, the ossification test cannot be held to be a conclusive proof, in itself. Moreover, the said test is relevant when the individual is young and the same may not be useful, when the individual is say around 40-45 years of age. In fact, after 30 years of age the ossification test is not generally resorted to by the courts. (Ref: Vinod katara Vs State of Uttar Pradesh 2022 SCC OnLineSC 1204.

It is significant to point out that The deeming provision in sub-section (3) of section 94 of the Juvenile Justice Act, 2015 sets at rest the controversy or the doubt regarding the age of the child brought before the Committee or the JJ Board at the level of the JJ Board or the Committee itself.

The moot point in this context are as under:

Whether the JJ Board has blanket authority in the above reference and in the teeth of section 94 of the JJ Act, 2015?

Whether the Juvenile Justice Board( JJB) shall be entitled to declare that Matriculation certificate is a conclusive document for determining the age of the juvenile irrespective of other material discrepancies in the oral testimony of the witnesses or other documents being produced?

          The law on this point is as under:

(i)         Parag Bhati Vs State of Uttar Pradesh (2016) 12 SCC 744 The Supreme Court in para 34 has held as under: 

              "34.It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the Courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice”.

(ii)        Sanjay Kumar Gupta Vs State of Uttar Pradesh & Anr  (2019) 12 SCC 370;

(iii)      Abuzar Hossain Vs State of West Bengal  (2012) 10 SCC 489.

In the above judgments it is held that age shown in the Matriculation certificate cannot be accepted on its face value if there is other evidence which contradicts the same.

However in Ashwani Kumar Saxena Vs State of M.P (2012) 9 SCC 750,it is held that the Matriculation certificate is a document on which full reliance could be placed for determination of the age of the juvenile accused.

(i)   In Babloo Pasi Vs State of Jharkhand  (2008) 13 SCC 133

(ii)   State of MP Vs Anoop Singh (2015) 7 SCC 773

  In (i) & (ii) above, even ossification test is held to be not conclusive for determination of age.

We know that the Juvenile Justice (Care and Protection of Children) Act 2000 has since been repealed and comprehensively changed new Act in the name of JJ Act 2015 is now in place. In the 2000 Act, an amendment was made by Act 33 of 2006 with effect from 22.8.2006 under which Section 7 A was inserted which reads as under:

             “7A. Procedure to be followed when claim of juvenility is raised before any court.—

      (1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

      Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

      (2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.” Section 49 of the said Act reads as under:

                “49. Presumption and determination of age.

      (1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit) and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.

      (2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.”

Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the ‘JJ Rules, 2007’) prescribed the procedures for determination of age.

Rule 12 reads as under –

“12. Procedure to be followed in determination of Age.

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -

(a)   (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b)  and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

While passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7A , Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.”

                                            JJ ACT 2015

As per JJ Act, 2015, the procedure to be followed when a claim of juvenility is raised before any court, other than a Board is stipulated under Section 9 (2) & (3).The same is as under:

                “2) In case a person alleged to have committed an offence claims before a court other than a Board, that the person is a child or was a child on the date of commission of the offence, or if the court itself is of the opinion that the person was a child on the date of commission of the offence, the said court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) to determine the age of such person, and shall record a finding on the matter, stating the age of the person as nearly as may be:

     Provided that such a claim may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such a claim shall be determined in accordance with the provisions contained in this Act and the rules made thereunder even if the person has ceased to be a child on or before the date of commencement of this Act.

     (3) If the court finds that a person has committed an offence and was a child on the date of commission of such offence, it shall forward the child to the Board for passing appropriate orders and the sentence, if any, passed by the court shall be deemed to have no effect.” There is no corresponding Rule to determine juvenility akin to Rule 12 of the JJ Rules, 2007.

As per Section 94 of the JJ Act, 2015, a presumption is raised when a person is brought before the JJ Board or the Child Welfare Committee (‘Committee’ for short) (other than for the purpose of giving evidence) and the said person is a child, the JJ Board or the Committee shall record such observation stating the age of the child as nearly as may be, and proceed with the inquiry under Section 14 or Section 36, as the case may be, without waiting for further confirmation of the age.

The age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of the Act, be deemed to be the true age of that person. For immediate reference section 94 of JJ Act, 2015 is extracted as under:

The distinction between provisions of JJ Act, 2015 in the absence of requisite documents as mentioned in Sub-section (2) of Section 94 (a) & (b)  on the one hand and provisions under Rule 12 of the JJ Rules, 2007 for determination of the age of the juvenile or child is worth mentioning.

There are following differences in the procedure under the two enactments:

JJ Act 2000 (2007 Rules)	JJ Act 2015
(i)    Under Rule 12 of the JJ Rules, 2007, in the absence of relevant documents, a medical opinion had to be sought from a duly constituted Medical Board which would declare the age of the juvenile or child	(ii)                  (i) In absence of documents relating to age, There is provision for determination of the age by an ossification test or any other medical age related test to be conducted on the orders of the Committee or the JJ Board as per Section 94 of the said Act
(ii) The documents to be provided as evidence under Rule 12 of the JJ Rules, 2007	(iii)               (ii) Under Section 94(2) the same are provided as substantive provision.
(iii) The age of person so brought before it, for the purpose of the Act, be deemed to be the true age of that person, irrespective of any subsequent proof to the contrary.	(iii)             Also deals with presumption and determination of age, the Committee or the JJ Board has to record such observation stating the age of the child as nearly as may be and proceed with the inquiry without waiting for further confirmation of the age. It is only when the Committee or the JJ Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, it can undertake the process of age determination, by seeking evidence. Thus, there is a finality attached to the determination of the age recorded and it is only in a case where reasonable grounds exist for doubt as to whether the person brought before the Committee or the Board is a child or not, that a process of age determination by seeking evidence has to be undertaken.

In Rishipal Singh Solanki  (Supra) in para 39.5, the Supreme Court has held:

             “The Court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in the 2000 Act are not defeated by the hyper technical approach and the persons who are entitled to get benefits of the 2000 Act shall get such benefits. The Courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability”.

          

What therefore clearly emerges from the above discussions and as per the dicta of Rishipal (Supra) is that the Supreme Court has held that the age recorded by the Committee or the Board to be the age of the person so brought before it shall for the purpose of the JJ Act, 2015 be deemed to be the true age of the person. The deeming provision in sub-section (3) of section 94 of the JJ Act, 2015 is also significant inasmuch as the controversy or the doubt regarding the age of the child brought before the Committee or the JJ Board is sought to be set at rest at the level of the JJ Board or the Committee itself, if there is no other document indicating the date of birth of the person concerned, contrary to what has been indicated in the matriculation certificate. If any evidence to the contrary is produced, then other evidences could be necessary such as ossification test. The very fact that section 94 of JJ act 2015 itself is a deeming provision, the finality of its finding is made inbuilt, unless, contrary is proved by rebuttal evidence. The ossification test in isolation is not a conclusive proof as regards the age, but still, in the case of doubt the ossification test also could also be conducted. The hyper technicalities in this regard is not recommended as per the dicta of Supreme Court.      

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                                            Anil K Khaware

                                            Founder & Senior Associate

                                            Societylawandjustice.com

 

 

 

 

POCSO AND GRANTING OF BAIL BASED ON COMPROMISE: NO MANDATE

 

POCSO AND GRANTING OF BAIL BASED ON COMPROMISE: NO MANDATE

 

Before entailing any discussion, let us begin with the following observation of Supreme Court in a matter captioned as APARNA BHAT & ORS. VERSUS STATE OF MADHYA PRADESH & ANR CRIMINAL APPEAL NO. 329 OF 2021:

“A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”

To take it a step further, the observation of Supreme Court in Para no.21 of Aparna Bhat (Supra) shall be worthwhile to refer at the outset:

“Gender violence is most often unseen and is shrouded in a culture of silence. The causes and factors of violence against women include entrenched unequal power equations between men and women that foster violence and its acceptability, aggravated by cultural and social norms, economic dependence, poverty and alcohol consumption, etc. In India, the culprits are often known to the woman; the social and economic "costs" of reporting such crimes are high. General economic dependence on family and fear of social ostracization act as significant disincentives for women to report any kind of sexual violence, abuse or abhorrent behaviour. Therefore, the actual incidence of violence against women in India is probably much higher than the data suggests, and women may continue to face hostility and have to remain in environments where they are subject to violence. This silence needs to be broken. In doing so, men, perhaps more than women have a duty and role to play in averting and combating violence against women”.

The Supreme Court had to revisit the aspect again in view of repeated directions by several high courts relating to granting of bail to the accused of sexual offences including the offenders under the POCSO Act. The judgments of some high courts in this regard are as under:

In Ravi Jatav v. State of M.P MCRC No. 13734/2020, the High Court of Madhya Pradesh, while granting bail to an accused of committing offences under Sections 376-D, 366, 506, 34 IPC) had imposed conditions that the accused “shall register himself as a Covid-19 Warrior” and was to be assigned work of Covid-19 disaster management at the discretion of the District Magistrate.

In Rakesh B. v. State of Karnataka Crl. P. No. 2427/2020 , the Karnataka High Court granted bail to an accused alleged to have committed offences under Sections 376, 420, 506 IPC and Section 66-B of the Information Technology Act, 2000 (“IT Act”), and made remarks on the survivor’s conduct.

In Vikash Garg Vs State of Haryana, the Punjab & Haryana High Court had granted bail to three persons accused of committing offences under Sections 376 D , 376 (2) (n), 376, 292, 120-B, 506 IPC and Section 67 of the IT Act, and made observations regarding the prosecutrix’s “casual relationships”, “promiscuous attitude”, “voyeuristic mind”, etc. The appellants submit that no observation/condition should be made which grants bail on the ground that the victim is of “loose character” or is “habituated to sexual intercourse.”

In Samuvel v. Inspector of Police Crl OP No. 1881/2015 the High Court of Madras was pleased to refer the case to mediation in a case of rape where the prosecutrix was a minor and had become a mother of a child as a consequence of rape, because the accused agreed to marry her.

The immediate cause of concern was the order of Madhya Pradesh High Court, even while granting bail to the applicant imposed the following conditions:

(i)           “The applicant along with his wife shall visit the house of the complainant with Rakhi thread/ band on 3rd August, 2020 at 11:00 a.m. with a box of sweets and request the complainant –“X” to tie the Rakhi band to him with the promise to protect her to the best of his ability for all times to come. He shall also tender Rs. 11,000/- to the complainant as a customary ritual usually offered by the brothers to sisters on such occasion and shall also seek her blessings. The applicant shall also tender Rs. 5,000/- to the son of the complainant – “Y” for purchase of clothes and sweets. The applicant shall obtain photographs and receipts of payment made to the complainant and her son, and the same shall be filed through the counsel for placing the same on record of this case before this Registry. The aforesaid deposit of amount shall not influence the pending trial, but is only for enlargement of the applicant on bail.”

Of course, it does not go in consonance with what Supreme Court had earlier enunciated in a matter reported as Kunal Kumar Tiwari v. State of Bihar (2018) 16 SCC 74  and Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570.

Yet again, the Supreme Court in State of M.P v. Madanlal, 26 (2015) 7 SCC 681 has already dealt held that in cases of sexual offences, the idea of compromise, especially in the form of marriage between the accused and the prosecutrix is abhorrent, and should not be considered a judicial remedy, as it would be antithetical to the woman’s honour and dignity.

In State of MP Vs Madanlal (Supra) it is held as under:

“18. …We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non- perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.”

The Supreme Court has thus clarified and laid down various guidelines and therefore aforesaid appeal-Aparna Bhat (Supra)  as filed has its genesis on several judgments rendered by various high courts such as aforementioned, thereby, permitting bails to the offenders on the basis of compromise and the marriage between the victim and the accused. This did not pass muster with the Supreme Court.  The appeal before Supreme Court was for seeking directions that all the High Courts and trial Courts be directed to refrain from making plenary observations and imposing conditions in rape and sexual assault cases, at any stage of judicial proceedings. The concern was that trauma undergone by survivors cannot be trivialized and in no manner these conditions should be allowed to adversely affect the dignity of victim. The essence of the appeal was that clear directions be passed to all Courts to refrain from imposing “irrelevant, freaky or illegal bail conditions”.

The cause of concern and rightly so, before the Supreme Court was that while granting bail in sexual offences cases and even in the Protection of Children from Sexual Offences Act, 2012 (POCSO) cases courts often took note of the compromise between the survivor and accused, whereas such compromise should be of no relevance, when deciding on cases of rape and sexual assault. These observations in offences against women including in POCSO cases were extraneous. Moreover granting of bail on the plea that an agreement to marry had been reached between the accused and prosecutrix also cannot be endorsed. Sometimes, shocking remarks are made on the character of the prosecutrix, which is also deplorable.

In APARNA BHAT (Supra) the Supreme Court has laid down guideline in para no. 45, in respect of words spoken during proceedings or in judicial order. The guidelines are as under:

The Courts should desist from expressing opinion to the effect that:

(i)           Women are physically weak and need protection;

(ii)        Women are incapable of or cannot take decisions on their own;

(iii)        Men are the “head” of the household and should take all the decisions relating to family;

(iv)       Women should be submissive and obedient according to our culture;

(v)         “Good” women are sexually chaste;

(vi)        Motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother;

(vii)     Women should be the ones in charge of their children, their upbringing and care;

(viii)    Being alone at night or wearing certain clothes make women responsible for being attacked;

(ix)       A woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”;

(x)         Women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony;

(xi)       Testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases; and

(xii)     Lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.

The Supreme Court has also laid emphasis on training and sensitization of judges, lawyers and prosecutors. The emphasis is also on a module on gender sensitization to be included as part of the foundational training of every judge. This should aid in according techniques for judges to be more sensitive while hearing and deciding cases of sexual assault. It is a common knowledge that the social biases such as misogyny are entrenched in the society and efforts should be made to obviate that. The module should also emphasize the prominent role that judges are expected to play in society, as role models and thought leaders, in promoting equality and ensuring fairness, safety and security to all women who allege the perpetration of sexual offences against them. The use of apt and appropriate language, words and phrases should be necessary and emphasized as part of this training.

ROLE OF The National Judicial Academy

The Supreme Court has further emphasized the role of National Judicial academy in order to devise speedily, the necessary inputs which could form part of the training of young judges. Adequate awareness regarding gender sensitization should be encouraged while shunning stereotyping and unconscious biases that may sneak into judicial reasoning. There should be emphasis on syllabi and content of such courses and necessary consultation with sociologists and teachers in psychology, gender studies or other relevant fields should be taken as a must. The course should be designed in such a way so that due emphasis on the relevant factors are inbuilt, and besides that requite training needs to be imparted about what should be avoided during court hearings and what should not descend in judicial mind. It is also important that Public Prosecutors and Standing Counsel too should undergo mandatory training so that the prosecution, defence and bench should be well aware of the do’s and don’ts. The duration of courses and contents should be developed by the National Judicial Academy, in consultation with State academies.

                                  ROLE OF BAR COUNCIL OF INDIA

The Supreme Court has also emphasized the role of Bar Council of India (BCI) in as much as BCI should consult subject experts and circulate a paper for discussion with professors in law, faculties and colleges/universities with a view to devise courses that should be taught at the undergraduate level in the LL.B program. It is necessary so as to inculcate the element of gender sensitization amongst students while studying law. Te topics on sexual offences and gender sensitization should be mandatorily included as part of curriculum and this should be also included in the syllabus for the All India Bar Examination.

Further, according to Supreme Court, each High Court should also formulate a module on judicial sensitivity to sexual offences with a view to test the candidates in the Judicial Services Examination. The high court should in this regard take the help of relevant experts in this regard.

In view of the repeated observation by several high courts and granting bail in POCSO cases because of compromise and /or upon marrying with the victim did not find favour with the Supreme Court. The directions of Supreme court for grant of bail in POCSO cases/ cases of sexual offences as contained in para no. 44 in Aparna Bhat (Supra) are as under: 

(a) Bail conditions should not mandate, require or permit contact between the accused and the victim. Such conditions should seek to protect the complainant from any further harassment by the accused;

(b) Where circumstances exist for the court to believe that there might be a potential threat of harassment of the victim, or upon apprehension expressed, after calling for reports from the police, the nature of protection shall be separately considered and appropriate order made, in addition to a direction to the accused not to make any contact with the victim;

(c) In all cases where bail is granted, the complainant should immediately be informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;

(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;

(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandate mediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;

(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and

(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court.

The aforesaid guidelines enumerates as to what should not be part of oral observation and /or part of judicial orders and the need of adequate training for the judges, lawyers, prosecutors, including standing counsels are necessary, in as much as the very nature of cases of sexual offences are sensitive and as it is significant that part of society has inherent biases towards women, therefore, any uncalled for observation is prone to heap further misery on women and Supreme Court has thus deprecated such observation in clear words and the guidelines are also provided for, while granting bail to the accused with a view to balance the rights of accused and the victim. After all, no premium can be accorded to a misdemeanor and marriage should not absolve a perpetrator of heinous crime such as sexual offences.  

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                                        Anil k khaware

                                 Founder & Senior Associate

                                 Societylawandjustice.com