The Patna High Court recently set aside an order allowing the custody of a minor rape survivor to a woman who claimed to be her mother without requisite identification (Hanif Ur Rahman v. State of Bihar)..In his judgment, Justice Rajeev Ranjan Prasad also voiced the need for sensitisation of all stakeholders on the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Juvenile Justice (Care and Protection of Children) Act, 2000."...this Court deems it just and proper to once again sensitize all the stake holders such as the State through it’s Chief Secretary, the Home Secretary and the Director General of Police, Bihar as also the judicial officers across the State of Bihar, Bihar State Legal Services Authority and the District Legal Services Authority. The stake holders are directed to ensure that they look into the mandatory provisions of the aforesaid statutes whose aim and objects are to protect the child from all kinds of exploitations...".To this end, the Court directed the Chief Secretary, Home Secretary and the Director General of Police, Bihar to convene a joint meeting with one month to examine to what extent the State has been able to meet the expectation of these Acts. "What are those areas which are required to be addressed in terms of the provisions of the acts be clearly identified, minuted and a monitoring cell be constituted for ensuring that those left out areas be duly addressed and the mandate of the legislations are fully complied with..." the order stated.Further, a copy of the judgment is to be sent to all district judges in Bihar with a request to organise workshops with all the judicial officers and members of the Juvenile Justice Board and the Child Welfare Committee, to discuss the laws on the subject and ensure compliance..The Court was acting on a petition filed by a man who had tipped off the police about the child’s status, following which she was rescued in February 2020. The survivor was found under circumstances that indicated that she had been forced into prostitution inside the house of her purported relatives, who were arrested.Although the minor was put in a shelter home, a woman claiming to be her mother moved an application before the POCSO Court to meet the girl. The plea was allowed subject to proper identification. The superintendent of the shelter home, however, informed the POCSO Court in a letter that the girl could not identify the woman from the shelter home’s CCTV before her meeting..Justice Prasad found that the POCSO Court had acted in “hot haste” while allowing the release of the girl to a woman whose identity was still shrouded in mystery..The Court underlined that the letter of the official “should have been an eye opener” for the Special POCSO Judge, as by that time the victim had not been approached or tutored and, therefore, she had not recognised the woman. When the girl named the woman as her mother six days later, the Court noted the possibility of the girl having been influenced by the accused persons to make a statement in their favour.“But these are prima-facie views of this court only to conclude that these were the circumstances which would have made the learned Special Judge, POCSO Court to take up the application for release of the victim girl in favour of respondent no. 2 (woman) with more circumspection and care,” it clarified..It came on record that the girl was taken to the house of the same relatives post her release from the shelter home. The Court observed that the purported mother had filed a compromise petition signed through an advocate who had represented the accused persons, which prima-facie showed that the accused persons were tampering with evidence and influencing the minor girl. “A lawyer who is representing the accused is said to be engaged by respondent no. 2 as well who has signed the compromise. This is all against the interest of the victim and de hors to the aim and object of the legislations,” it remarked..The Court outlined the provisions dealing with the well-being and release of rescued minors to parents or guardians, whose proper identification was mandated under the law.“The victim in this case is a girl child. She was produced before the learned magistrate but unfortunately no inquiry as to her age was ordered, no medical examination in terms of Section 27 of the POCSO Act was ordered and despite the fact that the victim was the child and she would fall in the category of a child in need of care and protection as envisaged under clause 14 of Section 2 of the JJ Act, she was not sent to be produced before the Child Welfare Committee under the provisions of Section 31 of the JJ Act,” the verdict stated..According to the Court, a child in need of care and protection was necessarily required to be produced before the Child Welfare Committee, which would then place the child in a shelter home or with an eligible person while ordering for a necessary probe.Even following the arrests of persons connected to the case, it was noted that the inquiry required to be ordered under the provisions of the Immoral Traffic (Prevention) Act, 1956 was not held..Observing that the POCSO Court had “completely erred” in abiding by the mandatory provisions of laws, the judgment underscored that the order for release passed on February 19, 2020, was on the basis of the girl’s statement recorded under Section 164 of the Code of Criminal Procedure.“At this stage, the learned court did not appreciate that the child who was being placed in the hand of respondent no. 2 was victim of alleged immoral trafficking as she had categorically stated before police that she was being subjected to prostitution forcibly,” the Court emphasised.In its opinion, it was all the more necessary for the POCSO Court to treat the minor survivor as a child in need of care and protection and she should have been ordered to be produced before the Child Welfare Committee..“The order impugned, thus, suffers from illegalities and infirmities rendering the order illegal and bad in law as also against the interest of the victim child,” it observed.A report stating that the girl was being subjected to perform dance and stage shows to earn a living for herself and her mother further established to the Court that she was in need of care and protection.“In result, the impugned order is liable to be set-aside and is accordingly set-aside,” it held..The Court was of the notion that till the girl attained majority, she should continue to live at the shelter home and once she became an adult, her release would be considered in terms of Section 46 of the JJ Act with financial support to facilitate her reintegration into the mainstream.The shelter home was ordered to chalk out a plan for the rehabilitation of the girl in accordance with law..Advocates Kriti Awasthi, Sambhav Gupta, Navnit Kumar and Shyam Kumar represented the petitioner. Government Pleader Nadim Seraj appeared for the State. Advocate Archana Sinha appeared for the woman claimant and Advocate Prabhu Narain Sharma appeared for the Child Welfare Committee..[Read Judgment]
