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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (C) No.76 OF 2018

ALAKH ALOK SRIVASTAVA     ......PETITIONER

VERSUS

UNION OF INDIA & ORS.                       .......RESPONDENTS

J  U  D  G  M  E  N  T

Dipak Misra, CJI.

 The instant Writ Petition initially raised two issues, first, the

treatment of an eight month old female child who had become a

victim of  a  crime committed  under the  Protection  of  Children

from Sexual Offences Act, 2012 (for brevity, ‘the POCSO Act’) and

the second, speedy trial and monitoring of the trials under the

POCSO Act in a child friendly court regard being had to the letter

and spirit of the provisions contained in the said Act.

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2. The first prayer was dealt with vide orders dated 31st

January, 2018, 1st  February, 2018 and 12th  March, 2018. It is

necessary to note here that regard being had to the health

condition of the child, a team of doctors from the All India

Institute of Medical Sciences (AIIMS) was sent to visit the patient

at Kalawati Saran Children Hospital. That apart, a direction was

issued to the authorities of the Delhi State Legal Services

Authority to accompany the team of doctors.  

3.  A team of doctors along with the competent authority of the

Delhi  State  Legal  Services  Authority examined the victim and

submitted a report. The relevant part of the report reads as

follows:­

“Examination revealed  8  month  old female infant alert and active, sharing bed with another girl child. She was breast feeding with normal vital signs (HR 120/min, Respiratory rate 32/min, no distress, saturation 98% on room air, temperature 36.8 C). Her weight was 5.6 kilogram and physical appearance looks normal. Systemic examination did not reveal any abnormality.  The operated perineal would was looking normal and the colostomy was healthy.  

 Overall the child looks stable  and recouping following surgery. The surgical wound will need regular aseptic dressings and further management will be done as per need. In view of providing holistic  care, the team felt that the  child  may be

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shifted to AIIMS under care of Pediatrics Surgery, Pediatrics  &  Obstetrics  Department  with support from  Psychiatry (for parenteral counseling). Team talked to family (Father & Mother) took consent for transfer of child under care by AIIMS team which they agreed but were worried and concerned about child’s health. Father was counseled and given assurance for providing best care. Being less than one year age all medical expenses will be exempted at AIIMS under Janani Shishu Suraksa Yojana of Government of India.”

4. Be it stated, the Member Secretary of the Delhi State Legal

Services Authority filed a status report which mentions that the

child had been shifted to AIIMS for better treatment. That apart,

the Member Secretary stated thus:­

“That, in the instant case as  per report received from DLSA concerned it has stated that vide order dated  30.01.2018  by the  Court of Ld.  Additional Sessions Judge, Rohini Court an interim compensation of Rs.75,000/­ has been awarded in accordance with Delhi Victim Compensation Scheme, 2015. After completion of necessary formalities i.e. bank account etc. the amount of the said interim compensation would be disbursed immediately through RTGS.  

 That, it is submitted that  DLSA  Secretary, North­West has also visited at Kalawati Saran Hospital  and met the  parents  of the  child in the morning of 31.01.2018 and apprised them of their legal  rights qua Delhi  Witness Protection Scheme, 2015, Delhi Victim Compensation Scheme, 2015 etc. It is also submitted Legal Services Advocate of DLSA has been appointed for providing legal aid in the matter.”

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5. On 12.03.2018, when the matter was listed, it was

submitted by Ms.  Pinky Anand, learned Additional Solicitor

General, that the victim child had been discharged from AIIMS

but she was required to undergo another surgery which had been

fixed for 17th April, 2018.  

6. As far as the child in the instant case is concerned, we have

been apprised that she has undergone a second surgery and she

is presently stable. Ms. Pinky Anand, learned Additional Solicitor

General, would submit that if any medical assistance is required

and  the  same  is  brought to  her  notice,  proper  care  shall  be

provided to the child.  

7. With regard  to the  second aspect,  on 01.02.2018, it  was

urged by petitioner who appeared in person that as far as cases

under the  POCSO Act  are  concerned, there  should  be  speedy

disposal  of  such cases and on a subsequent date,  information

was sought from the High Courts in respect of the monitoring of

speedy disposal of such cases.

8. When the matter was called up today, the petitioner filed a

chart stating the number of cases under the POCSO Act pending

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in various States and sought intervention of this Court for

issuing directions so that sensitivity with regard to the said

legislation is shown by the trial courts and further, there should

be a speedy trial as postulated in the POCSO Act.

9. We have heard Mr.  Alakh Alok Srivastava, the petitioner,

who has appeared in person and  Ms. Pinky Anand, learned

Additional Solicitor for the respondent­Union of India.

10. The  POCSO Act  has  been legislated  keeping in view the

fundamental  concept under Article 15 of  the Constitution that

empowers the State to make special provisions for children and

also Article 39(f) which provides that the State shall in particular

direct its policy towards securing that the children are given

opportunities and facilities to develop in a healthy manner and in

conditions of freedom and dignity and that childhood and youth

are protected against exploitation and against moral and material

abandonment.  The Statement of Objects and Reasons of the Act

indicate the focus for reduction of child abuse and protection of

children from the offences of sexual assault, sexual harassment

and pornography, etc. The relevant part of the Statement of

Objects and Reasons of the POCSO Act is extracted below:­

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“3.   The   date collected by the National Crime Records  Bureau    shows  that   there  has  been increase in cases of sexual   offences against children. This is corroborated  by the ‘Study   on Child Abuse: India 2007’ conducted by the Ministry of  Women   and  Child  Development.  Moreover, sexual offences against children are not adequately addressed by the existing laws. A  large  number of such offences are neither  specifically  provided  for nor  are  they adequately  penalized.  The  interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences  Against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.

4. It is, therefore, proposed to enact a self contained comprehensive legislation inter alia to provide for protection of children from the offences of sexual assault, sexual  harassment  and  pornography  with due regard for safeguarding the interest and  well being of the child at every stage of the judicial process incorporating  child  friendly  procedures for reporting, recording of evidence, investigation and trial  of  offences and provision  for establishment of Special Courts for speedy trial of such offences.”

11. In this context, it is apposite to reproduce the long Preamble

of the POCSO Act. It is as follows:­

“An Act to protect children from offences of sexual assault, sexual  harassment  and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.  

Whereas clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;

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And whereas, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;  

And  whereas it is necessary for the proper development  of the  child that  his  or  her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;  

 And  whereas it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;

 And whereas the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent –  

(a) the inducement  or coercion  of  a  child to engage in any       unlawful sexual activity;  

(b) the exploitative use of children in prostitution or other   unlawful sexual practices;  

(c)   the exploitative use of children in pornographic performances and materials;

And  whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.”

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12. In Eera through Dr. Manjula Krippendorf v. State (NCT

of Delhi)  and another1,  one  of  us (Dipak Misra,  J),  dwelling

upon the purpose of the Statement of Objects and Reasons and

the Preamble of the POCSO Act, observed:­

“20. … the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be  effectively  addressed.  The  statement  of  objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as  well  as  a  witness,  needs to  be  protected.  The stress is on providing childfriendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation.  Protection and interest occupy the seminal place in the text of the POCSO Act.”

1 (2017) 15 SCC 133

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13. At the very outset, it has to be stated with authority that the

POCSO Act is  a gender  neutral legislation.  This  Act  has  been

divided into various Chapters and Parts therein. Chapter II of the

Act titled “Sexual Offences Against Children” is segregated into

five  parts. Part  A of the said  Chapter contains two  Sections,

namely Section 3 and Section 4. Section 3 defines the offence of

“Penetrative  Sexual  Assault”  whereas  Section 4 lays  down  the

punishment for the said  offence.  Likewise,  Part  B of the  said

Chapter titled “Aggravated Penetrative Sexual Assault and

Punishment therefor” contains two sections,  namely  Section 5

and Section 6. The various sub­sections of Section 5 copiously

deal  with various situations, circumstances and categories of

persons where  the offence of  penetrative  sexual  assault  would

take the character of the offence of aggravated penetrative sexual

assault. Section 5(k), in particular, while laying emphasis on the

mental stability of a child stipulates that where an offender

commits penetrative sexual assault on a child, by taking

advantage  of the child’s  mental or  physical  disability, it shall

amount to an offence of  aggravated penetrative sexual assault.

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14. That apart,  Section 28 which occurs in Chapter VII titled

“Special Courts” requires for designation of a Court of Session in

each district as Special Court specifically, to try offences under

the POCSO Act for ensuring a speedy trial which is one of the

fundamental objectives of the Act. Further, Section 32 stipulates

that State Government shall appoint a Special Public Prosecutor

for every Special court, so designated under Section 28, for

conducting cases only under the POCSO Act.  

15. Chapter VIII of the Act deals with the procedure and powers

of theses Special Courts and the procedure for recording evidence

of the child victim. Section 33 falling under Chapter VIII provides

for various safeguards at the trial stage and ensures that various

manifold interests of the child are protected.  We think it

appropriate to reproduce the relevant part of Section 33:­  

“33. Procedure and powers of Special Court – (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.

(2)  The  Special Public  Prosecutor, or  as the case may be, the counsel appearing for the accused shall, while recording the examination­in­chief, cross­ examination or re­examination of the child, communicate the questions to be put to the child to the Special Court  which shall in turn put those

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questions to the child.

(3)The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.

(4)The Special Court shall create a child­friendly atmosphere by allowing a family member, a guardian, a friend or a relative, in whom the child has trust or confidence, to be present in the court.

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.

(6) The Special Court not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.

(7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:

Provided that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.

Explanation. – For the purposes of this sub­section, the identity of the child shall include the identity of the child’s family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed.”

16. Section 35 provides for recording of the evidence of the child

and  disposal of the cases. The same  being important for the

present purpose, it is quoted here:­

“35.  Period  for recording  of evidence  of  child  and disposal of case. – (1)The evidence of the child shall be recorded  within  a  period  of thirty  days  of the

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Special Court taking cognizance of the offence and reasons for delay, if  any, shall be recorded by the Special Court.

(2) The Special Court shall complete the trial, as far as possible,  within a  period of  one year from the date of taking cognizance of the offence.”

17. The aforesaid provisions make it  clear as crystal that the

legislature  has  commanded the  State to take  various steps  at

many levels so that the child is protected and the trial is

appropriately conducted.  

18. Section 37 provides that the Special Court shall try cases in

camera  and in the presence of the parents of the child or any

other person in whom the child has trust or confidence; Section

36 casts a duty on the Special Court to ensure that the child is

not exposed in any way to the accused at the time of recording of

the evidence while at the same time ensuring that the accused is

in a position to hear the statement of the child and communicate

with his advocate.   The objective of the POCSO Act is to protect

the child from many an aspect so that he/she does not  feel a

sense of discomfort or fear or is reminded of the horrified

experience and further there has to be a child friendly

atmosphere.

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19. Speaking about the child, a three­Judge  Bench in  M.C.

Mehta v. State of T.N. and others2 opined that:­  

“… “child is the father of man”. To enable fathering of  a valiant  and  vibrant  man, the child  must  be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so far as the society is concerned.”

20.   In Supreme Court Women Lawyers Association (SCWLA)

v. Union of India and another3, this Court has observed:­

“In the  case  at  hand,  we  are  concerned  with the rape committed on a girl child.  As has been urged before us that such crimes are rampant for unfathomable reasons and it is the obligation of the law and law­makers to cultivate respect for the children and especially the girl children  who are treated with such barbarity and savageness as indicated earlier.   The learned Senior Counsel appearing for the petitioner has emphasised on the obtaining horrendous and repulsive situation.”

Alice  Miller, a Swiss psychologist, speaking about child

abuse has said:­  

“Child abuse  damages  a  person for life and that damage is in no way diminished by the ignorance of the perpetrator. It is only with the uncovering of the

2 (1996) 6 SCC 756 3 (2016) 3 SCC 680

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complete truth as it affects all those involved that a genuinely viable solution can be found to the dangers of child abuse.”

21. Keeping in view the protection of the children and the

statutory scheme conceived under the POCSO Act, it is necessary

to issue certain directions so that the legislative intent and the

purpose are actually fructified at the ground level and it becomes

possible to bridge the gap between the  legislation remaining a

mere parchment or blueprint of social change and its practice or

implementation in true essence and spirit is achieved.   

22.  Mr. Srivastava has provided us a chart relating to the cases

pending under the POCSO Act in all States except Andhra

Pradesh, Telangana, Rajasthan and Jammu and Kashmir in

respect of  which the data is  not available.  We  may take the

example of two States, namely, Madhya Pradesh and Uttar

Pradesh.   The  pendency of such cases in the State of  Uttar

Pradesh is approximately 30884 and in the  State of  Madhya

Pradesh, approximately 10117.

23. It is submitted by Mr. Srivastava that in both the States, the

cases are pending at the evidence stage beyond one year.  We are

absolutely conscious that Section 35(2) of the Act says “as far as

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possible”. Be that as it may, regard being had to the spirit of the

Act, we think it appropriate to issue the following directions:­

(i) The High Courts shall ensure that the cases

registered under the POCSO Act are tried and disposed

of by the Special Courts and the presiding officers of

the said courts are sensitized in the matters of child

protection and psychological response.  

(ii) The Special Courts, as conceived, be established,

if not already done, and be assigned the responsibility

to deal with the cases under the POCSO Act.

(iii) The instructions should be issued to the Special

Courts to fast track the cases by not granting

unnecessary adjournments and following the

procedure laid down in the POCSO Act and thus

complete the trial in a time­bound manner or within a

specific time frame under the Act.  

(iv) The Chief Justices of the High Courts are

requested to constitute a Committee of three Judges to

regulate and monitor the progress of the trials under

the POCSO Act. The High Courts where three Judges

are not available the Chief Justices of the said courts

shall constitute one Judge Committee.

(v)  The  Director  General of  Police  or the  officer of

equivalent rank of the States shall constitute a Special

Task Force which shall ensure that the investigation is

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properly conducted and witnesses are produced on the

dates fixed before the trial courts.

(vi) Adequate steps shall be taken by the High Courts

to provide child friendly atmosphere in the Special

Courts keeping in view the provisions of the POCSO

Act so that the spirit of the Act is observed.

24. The Registry is directed to communicate this order to the

Registrar General of the High Courts so that it can be

immediately implemented. With the aforesaid directions, the writ

petition stands disposed of.

…….……….................CJI.         (DIPAK MISRA)

……...............................J. (A.M. KHANWILKAR)

    ..…….…..........................J.

        (Dr. D.Y. CHANDRACHUD)

NEW DELHI; MAY 01, 2018.