24 January, 2019

A 3-year-old victim of child sexual abuse has to return home unheard because the police is on Republic Day duty and unable to produce the accused in court

By Bahuli Sharma

Section 35 of the POCSO Act 2012, mandates the Special Courts to record the testimony of a child within a period of thirty days since cognizance of the case. Despite this clearly laid down, unambiguous provision, Special Courts are seldom able to abide by this mandate. Amongst the plethora of reasons/causes cited for adjournments and delays, the one which has irked me the most is: “Accused cannot be produced from Jail because all police personnel are busy with Republic Day celebrations”.

This is how it was…

When my client and her family arrived in court- it was evident that the three-year-old survivor was nervous, anxious and restless. We tried to calm her down-told her it will all be over today-and that she would never have to set foot in court again. But we spoke too soon!

While we were waiting outside, the Investigating Officer in the present case called me inside the court and, in the most callous manner, told me that it won’t be possible to get the child’s testimony recorded that day since the accused could not be produced from jail. Shocked and disappointed, I probed and asked why the accused could not be produced. “Voh police officers republic day duty par hain toh accused ko lane ke liye koi nahi hai,” explained the IO nonchalantly.

A part of me just wanted to scream: “are you serious? You have called a three-year-old survivor to court and you will now send her back and call her again just because you couldn’t arrange for police officers to bring the accused to court? How am I going to explain this to her?”

Realising the futility of my anger, I calmed down and went up to the court staff, requesting them to help. I told them that that the survivor in the present case is very young and her visit to court has traumatised her. They said they were helpless. Desperate, I requested the Judge to conduct at least a part of the child’s testimony (her examination-in-chief), but the Judge denied my request and the matter was adjourned.

Not knowing what to say and wondering what explanation would receive lesser hostility, sheepishly I went up to the child to say that the judge uncle is unwell because of which he would not be able to speak to her and she will have to come to the court again. Heart-broken and unhappy, she left the court distressed and angry. Three days later we found out that the child had got high fever the same day because of her visit to the court.

Is this how our criminal justice system treats its survivors? Do insipid reasons such as “republic day preparations” justify triggering the trauma of a very young child who is a victim of child sexual abuse?

When I returned to office and narrated the incident to my colleagues, I found out that this is a normal occurrence. Child-victim testimonies scheduled around the Republic Day and Independence Day invariably get adjourned due to paucity /absence of adequate police personnel to produce the accused. Nobody intimates the child’s family or counsel that an adjournment is likely. Child and the family are called to court-made to wait-and then simply asked to leave with the next date of hearing.

We understand that police personnel are busy with Republic Day preparations; no one expects them to abdicate their duties during Republic Day to bring the accused to court for a hearing. Our request is to our Judges: please don’t schedule child-victim testimonies near Republic Day, Independence Day and National and State Elections.

Since it is common knowledge that police personnel will be busy with R-day/I-day/Election duty and preparations, Judges should have the foresight to pre-empt an adjournment, and thus not call any child to Court four days prior or after these events. A small step, a little sensitivity, could spare a lot of children like my client additional trauma and pain.