Recently, a lawyer representing a child victim of sex abuse was asked by the judge presiding over a POCSO court – ‘is there an independent right of a victim to question a witness in a criminal trial?’ This was prompted after the lawyer representing the child victim suggested a few questions to the Public Prosecutor (PP) to be put to an expert medical witness tendering evidence regarding the age of the victim. In POCSO trials, the age of the victim is a crucial question of fact and law which can make or break a case, because POCSO can only be invoked if the victim is or the abuse happened when the victim was a child i.e. below 18 years of age. However, the lawyer was not allowed to intervene and the PP did not put the suggested questions to the witness.
In this article, I argue that a child victim of sex abuse has the right to be represented in all proceedings of the trial, and in furtherance of a meaningful representation, her lawyer has the right to intervene in proceedings in an appropriate manner to aid and assist the court and the PP. Not allowing the lawyer to intervene is a violation of the right of the victim and regresses from the advances made in criminal justice jurisprudence.
Right of a child victim to be represented
Section 40 of the Protection of Children from Sexual Offences, 2012 (POCSO) provides that subject to the proviso of Section 301 of the Code of Criminal Procedure, 1973 (CrPC), the family or the guardian of a child victim shall be entitled to the assistance of a legal counsel of their choice for any offence under the POCSO Act. It further provides that if the family is unable to afford legal counsel, they shall be provided legal aid counsel. The POCSO Act is silent on the extent to which such a lawyer can intervene in the trial to assist the child in accessing justice, but it must be interpreted in a manner which advances the best interest of the child, without unfavourably affecting the rights of the accused.
Section 301 of the CrPC puts some fetters on the extent to which a victim’s counsel may intervene. It provides that even when a counsel has been engaged by a victim, the prosecution will be conducted by the PP. But the counsel so engaged, shall act under the directions of the PP or Assistant PP (APP), and may with the permission of the court, submit written arguments after evidence is closed in the case. This section also doesn’t bar the lawyer of a victim from intervening but makes it conditional to directions issued by the PP or APP.
In practice, these provisions, Section 40 of POCSO read with Section 301 CrPC, are applied in varying forms and degrees across courts. In some courts, both the presiding judge and the PP are open to active interventions by the victim’s counsel and even permit oral arguments by them at all stages of a trial. In others, the victim’s counsel needs to adopt a more balanced approach and intervene cautiously to the extent that the court or the PP permits. In yet other courts, the victim’s counsel merely observes and is unable to meaningfully intervene even when the case of the child is being harmed. Thus, despite a beneficial provision in the law, the child victim is ultimately at the mercy of how sensitive the court and PP are to the best interest of the child.
A child victim’s right to be heard in bail proceedings — an important intervention
Through the Criminal Law (Amendment) Act, 2018, Section 439 of the CrPC was amended to provide an important right to victims of sexual crimes. Through this amendment, the High Court or Court of Session was directed that before granting bail to any person accused of an offence under different sections of rape of women below 18 years (Section 376(3), 376AB, 376DA and 376 DB of the Indian Penal Code, 1860), it must give notice of application for bail to Public Prosecutor within 15 days of receipt of such notice of application. It also provided that at such bail hearings the presence of the informant or any person authorised by her shall be obligatory.
In September 2019, the Delhi High Court issued practice directions in which it directed that the Courts shall ensure that the Investigation Officer (IO) of a case has communicated to the complainant or any other person authorised by her that her presence is obligatory at the time of hearing application for bail for any person accused of the above-mentioned offences. In January 2020, the Delhi High Court directed that the practice directions mentioned above will apply as is to offences under POCSO as well. Since then, several POCSO courts in Delhi have been making all efforts necessary to ensure the presence of the victim or her counsel at bail hearings of the accused, including by enabling victims to join the proceedings through video conferencing.
A few months later, in G v. State of NCT of Delhi & Ors, the Delhi High Court held that in such bail hearings, when the victim / complainant / informant appears, she must be provided with all the required documents as well as a counsel to ‘effectively represent the case for opposing the bail.’ Some other High Courts have also adopted this practice. Most recently, the Karnataka High Court directed in a PIL that notice must be served to the child / parent and the legal counsel if a bail application is filed by the accused.
It is pertinent to mention that the purpose of making the presence of the victim or her counsel necessary at bail hearings is not merely to fulfil a formality but to enable the victim to share with the court concerns that she may have, including threat to her life or property, if the accused is released on bail. In many such cases, the accused could be a family member, a neighbour, or an acquaintance, and may be uniquely positioned to harass the victim. Though the State may also oppose bail on legal grounds of the possibility of the accused threatening the victim or witnesses, it is the victim’s perspective which lends it the gravity and humanity that such technical arguments may otherwise lack. The right of the child victim to be heard at bail or any other proceedings, thus, also advances justice in more humane ways that an impersonal prosecution may not.
Evolving jurisprudence on rights of child victims and the Supreme Court’s recent landmark order
In 2021, in response to a PIL filed by a social worker working with victims of child sex abuse, the Bombay High Court highlighted the right of children to participate in trial of POCSO offences. The Court read Section 40 of POCSO Act along with Rules 4 (13), (14) and (15) of POCSO Rules, 2020 and noted that the police has been mandated to keep the child or her parent or guardian informed about the progress in their case, particularly information regarding arrest of accused, any application filed, and the schedule of court proceedings that the child is required or entitled to attend etc.
The Court observed that the mandate of Section 40 read with Rule 4 recognises an entitlement by law for the child or her guardian to be represented by a legal counsel. The Court issued directions that the child be made aware of filing of all applications whether by the prosecution or the accused, the child be informed of all hearings scheduled, and all relevant documents and necessary records be made available to ensure that the child or her counsel are present and can effectively participate in proceedings. Though these directions were issued only to the courts in Maharashtra, the implications are far reaching and the hope is that these will be progressively adopted by other High Courts.
In this regard, a very recent Supreme Court order passed in April 2022 further advances the right of victims to participate in proceedings in criminal trials. This was a case in which the Allahabad High Court granted bail to an accused in a case of murder. Among the many grounds of challenge, one was that the victim’s counsel got disconnected during online proceedings before the High Court when bail hearing was going on but the court refused their application for re-hearing. The Supreme Court discussed at length and analysed the right of the victim to be heard and held that the presence of the State in proceedings, through the PP, does not amount to ‘hearing’ the victim and that rights of a victim are independent and incomparable to the rights of the State. It further held that every victim, so defined under the CrPC, has the right to be heard at every step post the occurrence of an offence, and has ‘unbridled’ participatory rights from the start of an investigation till proceedings are completed.
Court’s question answered in the positive
Coming back now to the question asked by the court to the lawyer representing a child victim in POCSO trial, the victim has an independent right to be represented, heard, and to participate effectively in every proceeding in a criminal trial in aid of justice. Negating this right would not only undo the advances made by criminal justice jurisprudence to make the system more victim centred but also violate the mandate of POCSO to observe and uphold the best interest of the child at every stage.