High Court fiat to special courts on recording evidence of victims in POCSO cases

‘No excuse for not recording evidence of the victim within deadline in sexual offence cases’

July 23, 2017 12:18 am | Updated 12:18 am IST - Bengaluru

The High Court of Karnataka has issued a direction to the special courts, constituted to try cases under the Protection of Children from Sexual Offences (POCSO) Act, not to excuse themselves from recording evidence of the victim within statutorily fixed deadline citing reasons such as heavy workload, lack of time or non-production of materials.

The direction was issued after the High Court noticed that accused in POCSO cases were knocking on its doors, seeking release on bail citing reasons such as victim’s evidence were not recorded within 30 days from taking cognisance of offence as per Section 35(1) of the Act or charges were not framed. Reasons for delay, if any, should be recorded by the special court, the Act says.

Justice Rathnakala passed the order while disposing a bail petition filed by Vinay of Mandya district, who is accused of raping a four-year-old girl in December 2015.

The High Court issued the directions after asking its Registrar General to enquire into the cause for not recording the victim’s evidence within 30 days and secure a report, which included explanation from the special court’s judge on the delay.

“It may be true that the special court is flooded with a large number of cases under the general law and also under other special statute, but the importance of recording of the evidence under Section 35(1) of the Act cannot be lost sight of whatever reason,” the High Court observed.

The High Court noted that it would be “traumatic” for the child of that tender age to recall the details of the horrible experience if he or she was brought before the court for recording evidence after a year or two.

Also, the High Court said the child could be tortured under the guise of brushing his or her memory before commencement of recording of evidence. In either way, there is a likelihood of miscarriage of justice.

“It is said that time is the best healer, who knows that by passage of time, victim and family members may give up and may not like to submit themselves for the hassle of cross-examination and court procedure,” Ms. Justice Rathnakala said while observing that non-appearances of witnesses in the present case probabalises such cause.

Summons to witnesses were issued by the special court nearly 15 months after the incident, whereas the Act mandates completion of trial within a year from the date of taking cognisance of offence.

“The special courts, constituted under the POCSO Act, henceforth shall keep in mind their obligation under Section 35(1) and shall not excuse themselves on the ground of heavy load of work, lack of time, production of properties, etc.,” the High Court has made it clear.

‘Complain against callous attitude of investigating officers’

The High Court of Karnataka also directed the special courts for POCSO cases to intimate senior police officers of the district in case of callous attitude on the part of investigating officers resulting in delay of trial.

This direction was issued as the High Court noticed while hearing a bail petition filed by Vinay of Mandya district, who is accused of raping a four-year-old girl in December 2015, that in this case the special court could not fix a date to begin trial for nearly six months as the investigating officer did not respond to the court’s notice for production of properties.

While the investigating officer was directed to produce properties on July 1, 2016, he finally submitted the properties only on December 23, 2016.

Even if the investigating officer fails to produce the property on the date called for, that should not stop the special court from recoding the statement of the victim child and adjourn the case to fix the further date of trial, the High Court said while making it clear that mandate of Section 35(1) of the POCSO Act also binds the investigating officer even though there is no express provision with respect to the investigating officer.

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