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Kerala HC issues Guidelines to prevent secondary victimisation of child victims in POCSO cases [Read Order]

"The Act was being implemented in the State during the last almost five years with the stakeholders not being aware of the guidelines to be followed by them in the matter of implementing the provisions of the statute."

Lydia Suzanne Thomas

Expressing its dissatisfaction with the manner in which trials under the Protection of Children from Sexual Offences (POCSO) Act, 2012 has been implemented in Kerala over the years, the Kerala High Court has issued Guidelines to strengthen the system in place.

Justice PB Suresh Kumar issued the guidelines while dismissing an appeal filed by a convict in a POCSO case. While dealing with the case, he noted that the system in place to investigate and try cases of child sexual assault were riddled with flaws.

"... it is the scheme of the said statute that the children who have been sexually abused are not subjected to secondary victimisation in the course of the justice delivery process."
Kerala High Court

In particular, the Judge asked the State why its Guidelines under the POCSO Act were not in the public domain, which has led to a spike in child sexual abuse cases and a low conviction rate.

"Although the guidelines have been formulated by the State Government as early as on 20.4.2015, the same were not made available to any of the stakeholders including the State Legal Services Authority which is to play a pivotal role in the implementation of the POCSO Act or to the public, until this court took notice of the said fact in this matter. Needless to say, the POCSO Act was being implemented in the State during the last almost five years without the stakeholders not being aware of the guidelines to be followed by them in the matter of implementing the provisions of the statute."
“... even while the Government is spending crores for giving effect to the statute, the hard reality is that the children involved in the cases are not even provided the diet money which they are entitled, when they come to give evidence in the matter.”
Kerala High Court

Cases tried under the POCSO Act oftentimes involved flawed investigations by officers not equipped or sensitive to the needs of the child victims. In many cases, the child and his family were not assigned lawyers when they were unable to engage the services of one, the Court noted.

A child's lawyer was the focal point of a POCSO trial, who was expected to represent the interest of the child in Court proceedings. Many children did not even have lawyers for their cases, the judgment notes.

The Court also observed that "the quality of the prosecution of the cases arises under the POCSO Act needs to be improved."

Because investigating authorities were not provided with the requisite training, many of them did not know the relevance of evidence such as determining the child's age, a crucial point in POCSO investigations. These sometimes vitiated the trial itself, Justice Kumar pointed out.

Very rarely were behavioural indicators considered when collecting evidence of sexual abuse. Further, the children's statements were often not collected according to Sections 25 and 26 of the POCSO Act, the Court noted.

Another issue noted concerned the compensation payable to child victims under the POCSO Victim Compensation Scheme, which remains undistributed.

The State conceded that though training was given to officers, there was a shortage of officers to replace them in the event they transferred to another jurisdiction. As to the quality of evidence, there was a lack of manpower at the Forensic Science Laboratories, it was submitted in Court.

Speaking for the persons accused of POCSO offences, Advocate CP Udaya Bhanu submitted that shoddy investigations often led to unfair convictions, loss of reputation, and stigma for the accused and their family. These violated his fundamental rights, it was argued.

The Kerala Legal Services Authority explained that though funds were being received from the Central Government for the Victim Compensation Scheme, it could not be withdrawn for disbursal because it was under another head of income.

Taking these concerns into consideration as well, the Court has now issued a slew of directions including:

  1. Establishment of One-Stop Centers in every district, staffed with counsellors and officers sensitive to the needs of women and children, with Special Courts situated inside these compounds. Justice Suresh Kumar drew upon the Supreme Court's decision in Nipun Saxena v. Union of India, which had directed the establishment of these centres,

  2. Filling the vacancies at Forensic Labs, disbursing necessary amounts to the State Legal Services Authority,

  3. Choosing appropriate persons as Special Public Prosecutors for POCSO cases, and ensuring Prosecutors, Magistrates, and Officers are trained to deal with sensitivity to child victims,

  4. Considering psychological and behavioural indicators while prosecuting trials and calling upon experts in these fields to present evidence,

  5. Ensuring the State Legal Service Authority had a panel of lawyers experience in representing children in these matters,

  6. Making sure the evidence and the child's statements correspond failing which further investigation was to be ordered,

  7. Recording the audio and video of children's statements, with the certainty that the statement is being made voluntarily.

The Court has directed the State to designate a Nodal Officer to implement these directions. Additionally, the State has been required to assign a female IPS officer to ensure that these directions are being followed in every case.

Senior Public Prosecutor Suman Chakravarthy, Advocate Manu S (for the Kerala State Legal Services Authority), Special Government Pleader Ambika Devi, Public Prosecutor B Jayasurya, Advocate CP Udayabhanu (for the appellant) and Advocates Sandhya Raju and Ranjith Marar appeared in the matter.

Read the Judgment here:

Abhishek KA v. State of Kerala - Final Order dated September 9, 2020.pdf
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