Kerala HC issues guidelines to preserve anonymity of child abuse survivors in POCSO cases
Litigation News

Kerala HC issues guidelines to preserve anonymity of child abuse survivors in POCSO cases

The Court issued the guidelines after voicing concern that "in several matters instituted before this court where victim anonymity is to be maintained, the identity of the victim is disclosed directly or indirectly."

Lydia Suzanne Thomas

The Kerala High Court on Wednesday issued guidelines to ensure that the identity of child abuse survivors is kept confidential and protected during the conduct of POCSO cases.

These guidelines were issued while pronouncing the judgment on a plea moved challenging the grant of bail by a Special Court to an accused in a case under the Protection of Children from Sexual Offences (POCSO) Act.

Justice PB Suresh Kumar noted:

"... in several matters instituted before this court where victim anonymity is to be maintained, the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings. It is also observed that though documents revealing the identity of the victim are produced in sealed covers in the light of the decision of the Apex Court in Nipun Saxena and another v. Union of India and others."

The Court went on to take critical note that,

"... there is no system in place to maintain victim anonymity, once the sealed covers are opened by the court... there is no system in place for disposal of the documents produced in sealed covers, after the final disposal of the case. Similarly, it is observed that the registry is insisting copies of the documents revealing the identity of the victims to be given to the opposite parties in the matter."
Kerala High Court

Since documents were often taken out of the sealed covers during hearings, taken back to the section office, and then handed to respondents, the Court observed that the anonymity of the survivor was not maintained.

Such disclosures were violative of Sections 228A of the Indian Penal Code, as well as provisions of the POCSO Act, Justice Kumar pointed out.

Directions issued

In view of the above concerns, the Court has directed that documents in such cases should be sealed in tamper-proof self-sealing covers and produced in Court. Following their unsealing during hearings, they are to be transferred to fresh covers and taken back to the section office.

Justice Kumar further directed that documents such as those from the educational institution or place of work of the survivor can be used for identification, along with the details of his family and neighbourhood. Any document with these details would have to be filed in sealed covers, he ordered.

The sealed covers submitted would be in the custody of an Officer designated for the purpose, the Court stated.

Further, copies of documents in sealed covers would not have to be handed over to the opposite parties. Instead, their counsel could peruse the documents in Court with the Court's permission, Justice Kumar specified.

It was clarified that these rules were to be enforced until the Chief Justice replaced these with appropriate practice instructions.

The Court was dealing with a case where a teacher was accused of sexually abusing his student. Bail applications made before the Special POCSO Court as well as to the High Court were initially rejected.

However, when the investigation in the case dragged on beyond 90 days, the accused applied for default bail under Section 167(2) of the Criminal Procedure Code. This plea was allowed by the Special POCSO court. The chargesheet was filed while the default bail application was pending.

The petitioner and the prosecution argued that the bail granted was irregular and improper in light of the earlier High Court order dismissing the bail application of the accused.

Section 439(1 A) of the Code of Criminal Procedure was also relied upon, wherein it is stated that an accused could not be granted bail in cases of sexual assault unless the informant of the crime was present.

The Court, however, pointed out when the investigation in a case has been long-drawn, thereby entitling an accused to default bail, Section 439(1A) would not apply.

The Court reasoned,

"Even if it is held placing reliance on the phraseology used in Section 439(1A) of the Code that the provision therein is to be followed while granting bail under Section 167(2) of the Code, it would be an empty formality. The purpose of Section 167(2) is to protect the liberty of an individual who has been detained and continues to be detained pending investigation in a case. It is trite that in matters relating to personal liberty of an individual, the court must lean in favour of personal liberty."

The passage of the 90-day period (without the filing of a chargesheet) was a changed circumstance which did not form the same set of facts that the High Court's earlier order was founded upon, the Judge said. Therefore, he ruled that the bail order passed by the Special Court was proper.

The petition was thus dismissed.

Read the Order here:

X v. State of Kerala and Anr. - Order dated September 9, 2020.pdf
Bar and Bench - Indian Legal news