Calcutta HC: Beneficial Provisions Engrafted in the Statute [POSCO Act] Should Not Become Dead Letters of Law

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A petition for anticipatory bail was filed on 4th September 2019 under Section 438 of the Code of Criminal Procedure (CrPC). The petition was filed in connection with a Raiganj Police Station Case No. 156 of 2018 under Sections 363 (punishment for kidnapping), 365 (kidnapping with the intent to confine them), and 34 (Acts by several persons for a common intention) of the Indian Penal Code and Sections 4 (Punishment for aggravated penetrative sexual assault), 6 (Punishment for using child for pornographic purposes), 17 (Punishment for Abetment) of the POCSO Act.

On 9th September 2019, the Investigation Officer (IO) was present in the Court and submitted the Original Case Diary. The statement given by the 15-year old minor girl who is a vital witness under section 164 of CrPC seemed “evasive in nature”. The Court directed that she should be examined by the concerned Child Welfare Committee as well as a trained psychologist.  

The Child Welfare Committee’s Report

The psychometric test of the girl was submitted as per the direction of the Court on 30th September 2019. The report mentioned that the victim lacks confidence concerning her paternal figures. Her statement showcases that the petitioner (maternal uncle) played a very important role in introducing her to the principal accused in the case who subjected her to sexual abuse.

Court’s Response

The Court rejected the anticipatory bail in keeping the view that there is a “breach of trust from a near relation in the abetment of crime”

As the girl is a vital witness for the case, the Court ordered the Child Welfare Committee to ensure her proper rehabilitation, care and protection and submit a report on 3rd December regarding the same.

The following points were highlighted after the aforementioned Report dated 3rd December 2019 was submitted:

  1. The Girl was not attending school and no efforts were made to enrol her in an educational institution.
  2. Psychological assistance has not been provided to the girl.

The Court pointed out that the report was distressing and directed the concerned Child Welfare Committee to take proper steps to rectify the situation and submit a report.

Report of the Chairperson, Child Welfare Committee

On 4th February 2020, the Committee submitted that they have requested the Principal of Raiganj Government Medical College and Hospital to provide a trained psychologist for counselling the girl which implies there is a “chronic lack of trained psychologists.”

The Court’s Response

The court explicitly stated that “Availability of trained psychologists is absolutely necessary for the working of laws enacted to protect the minors of sexual abuse crimes In such cases, the perpetrators are frequently persons in trust or close relations of the victims which as expected leave a deeper scar on the psyche rather than his/her body.

The victims urgently need psychologists for the healing process to begin at the earliest. Therefore, the Court illuminates that, 

“immediate attention envisaged under the POCSO Act and witness protection schemes remain illusory and non-existent in ground reality…due to infrastructural and functional deficiencies.”

The Court directed the Chief Secretary, State of West Bengal to file an affidavit with the following information;

  1. Disclose the number of trained psychologists available in various medical institutions as well as the Department of Women & Child Development and Social Welfare, Government of West Bengal in various districts in the State.
  2. Disclose guidelines, if any, to ensure the participation of the adequate number of psychologists during the trial of POCSO cases.

The Court directed the Chairperson of the State Commission for the Protection of Child Rights to disclose steps to frame the proper guidelines particular regarding the psychological counselling of minor victims during investigation and trial.

Also, the Secretary of the Department of Women and Child Development and Social Work, as well as the Member Secretary of the State Legal Services Authority, were directed to provide psychological counselling and interim compensation to the victim in the present case.


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