A child survivor in the case of sexual assault has the option of not appearing physically in court when the latter is hearing a bail application filed by the accused facing charges under the Protection of Children from Sexual Offences (POCSO) Act, the Delhi High Court said. The High Court has come out with guidelines for court proceedings in POCSO Act cases.
The High Court said the psychological impact on a POCSO case victim being present in court during the arguments is grave as there are allegations and accusations doubting the integrity and character of the survivor and family.
“The presence of the prosecutrix victim in court at the time of arguments, according to me, has an adverse impact on the psyche of the prosecutrix. The prosecutrix is forced to be present in court with the accused, who is the same person who has allegedly violated her.
“It was felt that it would be in the interest of the victim that she is not traumatised again and again by reliving the said incident by being present in court proceedings,” Justice Jasmeet Singh said in an order on January 11.
According to the guidelines, the victim can be produced virtually before the court, either by the investigating officer (IO) or support person, or by taking assistance of the District Legal Services Authority. Hybrid form of hearing of bail applications would suitably address the concerns of the victim while safeguarding the rights of the accused, and they shall not come face to face. This can prevent the re-traumatisation of the victim, the guidelines said.
As per the guidelines, if an alleged victim gives in writing that her counsel or parent or guardian or support person shall appear on her behalf and make submissions on the bail application, insistence on her physical or virtual presence should not be made.
They said while recording the submissions or objections of the alleged victim on the bail application, appropriate questions may be put to her to elicit her response instead of bluntly asking her “Do you want bail to be given to the accused or not?”
Instead, “questions can be put to her to ascertain what her apprehensions and fears are in case the accused is granted bail in the matter, for bail is to be granted by the court concerned on the basis of overall appreciation of facts and circumstances of the case and in the light of well settled principles governing the grant of bail,” the guidelines said.
During the hearing of an appeal by an accused in a case of sexual assault on a minor girl, the counsel for the man and a representative of the legal services authority pointed out that many victims in POCSO cases were being asked to appear physically or virtually in court at the time of hearing bail applications. This led to a situation where the victims were forced to potentially interact with the accused, the counsel said.
“...I am in agreement that the said directions, if implemented in true letter, spirit and intent, may help in reducing the trauma of POCSO victims. In this view of the matter and in addition to the practice directions issued earlier, it is further directed that during bail hearings of a POCSO case, the following guidelines shall also be adhered to...,” the judge said.