ALAKH ALOK SRIVASTAVAversusUNION OF INDIA & ORS.

972                      [2018]REPORTS
               SUPREME COURT    6 S.C.R. 972                 [2018] 6 S.C.R.


A                        ALAKH ALOK SRIVASTAVA
                                        v.
                          UNION OF INDIA & ORS.
                        (Writ Petition (C) No. 76 of 2018)
B                                   MAY 01, 2018
            [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                       DR. D. Y. CHANDRACHUD, JJ.]
            Protection of Children from Sexual Offences Act, 2012
      (POCSO) – Implementation of – Keeping in view the protection of
C     the children and the statutory scheme conceived under the POCSO
      Act, directions issued so that the legislative intent and the purpose
      are actually fructified at the ground level – Held: (i) The High Courts
      to ensure that the cases registered under the POCSO Act are tried
      and disposed of by the Special Courts and the presiding officers of
D     the said courts are sensitized in the matters of child protection and
      psychological response; (ii) The Special Courts be established, if
      not already done, and be assigned the responsibility to deal with
      cases under the POCSO Act; (iii) Instructions be issued to the Special
      Courts to fast track the cases by not granting unnecessary
      adjournments and complete the trial in a time-bound manner or
E     within a specific time frame under the POCSO Act; (iv)The Chief
      Justices of the High Courts to constitute a Committee of Judges to
      regulate and monitor the progress of the trials under the POCSO
      Act; (v) The Director General of Police or the officer of equivalent
      rank of the States to constitute a Special Task Force which shall
F     ensure that the investigation is properly conducted and witnesses
      are produced on the dates fixed before the trial courts; (vi) Adequate
      steps to 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.
           Protection of Children from Sexual Offences Act, 2012
G
      (POCSO) – The Statement of Objects and reasons of the Act –
      Discussed.
            Eera through Dr. Manjula Krippendorf v. State (NCT
            of Delhi) and another 2017 (8) SCALE 112;
H
                                       972
       ALAKH ALOK SRIVASTAVA v. UNION OF INDIA                                973


      M.C. Mehta v. State of T.N. and others (1996) 6 SCC                     A
      756 : [1996] 9 Suppl. SCR 726; Supreme Court Women
      Lawyers Association (SCWLA) v. Union of India and
      another (2016) 3 SCC 680 : [2016] 1 SCR 207 –
      referred to.
                          Case Law Reference                                  B
      2017 (8) SCALE 112                   referred to      Para 12
      [1996] 9 Suppl. SCR 726              referred to      Para 19
      [2016] 1 SCR 207                      referred to     Para 20
      CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 76               C
of 2018.
      Under Article 32 of the Constitution of India.
     Alakh Alok Srivastava, (Petitioner-in-person), Ms. Harpreet Kaur,
Kedar Nath Tripathy, Advs. for the Petitioner.
                                                                              D
      Ms. Pinky Anand, ASG, R. Balasubramanian, Ms. Swarupma
Chaturvedi, Ms. Snidha Mehra, Ms. Aarti Sharma, Santosh Kr.
Vishwakarma, Ms. Arunima Dwivedi, Ms. Saudamini Sharma,
M.K. Maroria, Gurmeet Singh Makker, Sibo Sankar Mishra, Ms. Sutapa
Sarangi, Ms. S.S. Sen, Advs. for the Respondents.
                                                                              E
      The Judgment of the Court was delivered by
        DIPAK MISRA, CJI. 1. 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              F
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.
       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        G
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.
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974            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A           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
B           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.
C             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 shifted to AIIMS under
            care of Pediatrics Surgery, Pediatrics & Obstetrics Department
            with support from Psychiatry (for parenteral counseling). Team
D           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
E           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:-
F           “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
G           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, North-West 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
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        ALAKH ALOK SRIVASTAVA v. UNION OF INDIA                                 975
                  [DIPAK MISRA, CJI]

      legal rights qua Delhi Witness Protection Scheme, 2015, Delhi             A
      Victim Compensation Scheme, 2015 etc. It is also submitted Legal
      Services Advocate of DLSA has been appointed for providing
      legal aid in the matter.”
       5. On 12.03.2018, when the matter was listed, it was submitted
by Ms. Pinky Anand, learned Additional Solicitor General, that the victim       B
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,        C
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                D
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 in
various States and sought intervention of this Court for issuing directions     E
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        F
for the respondent-Union 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
                                                                                G
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
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976            SUPREME COURT REPORTS                           [2018] 6 S.C.R.


A     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:-
            “3. The date collected by the National Crime Records Bureau
            shows that there has been increase in cases of sexual offences
B           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
C           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
D           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
E           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
F           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;
              And whereas, the Government of India has acceded on the 11th
G
            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;

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          ALAKH ALOK SRIVASTAVA v. UNION OF INDIA                                  977
                    [DIPAK MISRA, CJI]

         And whereas it is necessary for the proper development of the             A
         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        B
         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 –                          C
           (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;
                                                                                   D
          (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.”
      12. In Eera through Dr. Manjula Krippendorf v. State (NCT                    E
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     F
         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         G
         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
1
    (2017) 15 SCC 133                                                              H
978             SUPREME COURT REPORTS                             [2018] 6 S.C.R.


A            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
B
             the child, both as a victim as well as a witness, needs to be
             protected. The stress is on providing child-friendly 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.”
C            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
D     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 sub-sections of Section 5 copiously deal with
      various situations, circumstances and categories of persons where the
E     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
F     to an offence of aggravated penetrative sexual assault.
             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
G     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
H     the child victim. Section 33 falling under Chapter VIII provides for various
       ALAKH ALOK SRIVASTAVA v. UNION OF INDIA                                 979
                 [DIPAK MISRA, CJI]

safeguards at the trial stage and ensures that various manifold interests      A
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     B
      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
      examination-in-chief, cross-examination or re-examination of the
      child, communicate the questions to be put to the child to the Special   C
      Court which shall in turn put those 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 child-friendly atmosphere by
      allowing a family member, a guardian, a friend or a relative, in         D
      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
                                                                               E
      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:
                                                                               F
      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 sub-section, the identity of
      the child shall include the identity of the child’s family, school,      G
      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:-                                                   H
980               SUPREME COURT REPORTS                         [2018] 6 S.C.R.


A              “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 Special Court taking cognizance of the
               offence and reasons for delay, if any, shall be recorded by the
               Special Court.
B              (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
C     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
D     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.
E
             19. Speaking about the child, a three-Judge 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
F              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:-
G
               “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
      2
          (1996) 6 SCC 756
      3
          (2016) 3 SCC 680
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          ALAKH ALOK SRIVASTAVA v. UNION OF INDIA                                981
                    [DIPAK MISRA, CJI]

         law and law-makers to cultivate respect for the children and            A
         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      B
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 complete truth as it affects all those involved
         that a genuinely viable solution can be found to the dangers of         C
         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         D
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,                 E
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.
                                                                                 F
       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
possible”. Be that as it may, regard being had to the spirit of the Act, we
think it appropriate to issue the following directions:-
                                                                                 G
         (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.

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982                SUPREME COURT REPORTS                       [2018] 6 S.C.R.


A           (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
B           following the procedure laid down in the POCSO Act and thus
            complete the trial in a time-bound 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
C           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
D           shall ensure that the investigation is 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
E           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.
F
      Ankit Gyan                                           Writ Petition disposed of.




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