Supreme Court: While addressing the issue of obviating difficulties to victims of trafficking with respect to travelling long distances for the purpose of giving evidence in trial courts, the Division Bench of L. Nageswara Rao and B.R. Gavai, JJ., furthers recording of evidence of child victims/witnesses of human trafficking via video-conferencing. Opining that the video-conference procedure need not be restricted only to the period affected by COVID-19 pandemic, the Bench remarked,
“Though, the public-spirited Petitioners were concerned with the safety of the trafficked children being forced to travel long distances for giving evidence during the COVID-19 pandemic, we are of the opinion that the suggestions made by the learned Amicus Curiae, in consultation with Ms. Shenoy, relating to the SOP should be put in practice as a regular feature.”
A petition was filed before the Court seeking issue of mandamus directing that during COVID-19 pandemic, the recording of evidence of child victims/witnesses of human trafficking across Districts/States/Countries be ordinarily undertaken via video-conferencing from a government facility within the local jurisdiction of the residence of such children. Considering the gravity of the matter a suo motu case was registered by the Court and Mr. Gaurav Agarwal had been appointed as Amicus Curiae to assist the Court.
The Pilot Project
The Amicus Curiae had proposed a pilot project, wherein four cases were selected out of which trial had commenced in two cases and direction was given for examination of witnesses by video conferencing. In State v. Rahmatulla, SC No. 151 of 2019, 11 children engaged in stitching work of suit/coat covers were rescued by a surprise rescue operation from premises in North East Delhi, PS Khajuri Khas. The rescued children were sent to their native places, i.e., East Champaran Districts of Bihar. The case was pending in the court of Additional District Judge, Karkadooma, New Delhi. In second case, State v. Mohd. Sherjahan, Case No. 52 of 2019, the Anti-Human Trafficking Unit had rescued four children, who were forced to make bangles in a confined room at Jaipur. The rescued children were sent to their homes at Patna and Gaya in Bihar. The trial in the said case was due to be conducted in POCSO Court-2, Jaipur. The pilot project consisted three stages:
- Assessment of state of infrastructure at the Court Point and the Remote Point. The Court Point is in the cities or places where the trial has to take place and the Remote Point is the district/Taluk court complex or the office of the District Legal Services Authority near the place of residence of the victims/witnesses. Availability of necessary equipment for video conferencing, along with other facilities integral to the process, was to be ascertained in the first stage.
- The Judge at the Court Point was to fix a date for examination of the witnesses and thereafter, issuing summons to the witnesses. The witnesses be intimated about (i) the address of the Remote Point and date and time of hearing; (ii) name, contact details and a brief explanation of the role of the Remote Point Coordinator (RPC); and (iii) the requirement to carry a proof of identification.
- Actual examination of the child witnesses at the Remote Point and the procedures to be followed to ensure that the witnesses are examined in camera and without any influence.
Standard Operating Procedure
After being satisfied with the trial run of examination of child witnesses at remote points, the Amicus Curiae submitted a draft Standard Operating Procedure (SOP) in consultation with Senior Advocate Anitha Shenoy, with five stages which was served on all the State Governments/Union Territories as well as the High Courts for their comments by the order of the Court. On suggestions made by the High Courts, the SOP was modified and the modified SOP reads as:
- Testimony of children be recorded through video conferencing either at the video conferencing room of the court complex in the district or the office of DLSA where the child is residing.
- District Judges to ascertain the availability of video conferencing facility in the district/Taluk court complex or DLSA office and communicate the same to the jurisdictional High Court. The High Courts were asked to place the said information on its website on or before 30-04-2022 and ensure availability of video-conferencing infrastructure in every district, especially where the incidence of child trafficking cases is high.
- DLSA to be the Remote Point Coordinator (RPC) for recording of the testimony of child witnesses or appoint a Retired judicial Officer as a RPC, information of which, i.e. the names and contact details of the RPC of each district on the website.
- In cases of inter-state/inter-district child trafficking the Trial Court should ordinarily give preference to examination of the child witness through video conferencing.
- The authorized officer at the Court Point to get in touch with the RPC at the Remote Point and work out all modalities for recording of the child witness statement through video conferencing.
- The child witness be entitled to the presence of a support person under Protection of Children from Sexual Offences Rules, 2020, a diet money on the basis of the distance travelled to reach the remote point and any other best practice required by the law.
- Copy of documents required to be marked or shown to the witness may be transmitted by the Court electronically to the RPC.
- Questions posed by the Public Prosecutor/Defense Counsel may be put to the Trial Judge, who in turn will put them to the witness and the Trial Court would record the testimony of the witness.
- On completion of recording of evidence, the deposition will be sent by the Trial Court on email to the RPC who shall read the same out to the witness. After ascertaining the deposition is correct and verified as under law including the affixation of the child’s thumb impression/signature, the RPC may certify the same and send the deposition back, in a secure manner, to the Trial Court by Speed Post and by electronic means as permitted by law. An original may also be kept by RPC in case the Speed Post is misplaced for some reason.
- Whenever a Trial Court proposes to record the testimony of a child witness, who is residing in another State, an intimation of the same should also be given to the Registrar of the High Court of the Court point, who shall intimate the High Court of the Remote Point with a request to render all assistance possible for recording of the testimony of the child.
- The SOP is only a broad guideline. The method and manner of recording of testimony be dependent upon the video conferencing rules framed by the respective High Courts and the recording of the testimony should be done expeditiously.
Conclusion and Directions
According to data released by agencies the problem of Child Labour in India is persisting inspite of the best efforts of the Government. Reiterating the importance of protection of children and rescuing and rehabilitating them, the Bench opined that the said SOP need not be restricted only to the period affected by the COVID-19 pandemic.
Observing that the permissibility of recording evidence through video conferencing had been considered by the Supreme Court in State of Maharashtra v. Praful B. Desai, (2003) 4 SCC 601, Sakshi v. Union of India, (2004) 5 SCC 518, as well as Eera v. State (NCT of Delhi), (2017) 15 SCC 133, and Sampurna Behura v. Union of India, (2018) 4 SCC 433, wherein the Court had encouraged the use of technologies in court proceedings, the Bench stated,
“We have carefully examined the draft SOP which contains minute details about steps to be taken for recording the testimony of child witnesses at Remote Points. Responses have been filed by the High Courts. There is no objection taken by any High Court to the SOP being put in practice immediately.”
Accordingly, the Bench directed that the SOP be followed in all criminal trials where child witnesses, not residing near Court Points, are examined and not physically in the courts where the trial is conducted. The RPCs were directed to ensure that child-friendly practices are adopted during the examination of the witnesses and the concerned judicial officer at the Remote Point and the trial Court were to that the recording of evidence shall be in camera wherever necessary.
Noting that NALSA had also come forward to place the details regarding the availability of video conferencing facility for recording of statement of child witnesses in the offices of DLSA and court complex and the name and contact number of the RPC on its website and the website of State Legal Services Authority (SLSA) by 30-04-2022, the Bench expressed,
“We appreciate the stand taken by NALSA to strengthen the video conferencing facilities in DLSA offices in the States of Uttar Pradesh, Bihar, West Bengal, Odisha and Assam, to begin with to ensure that in case video conferencing facility in the court complex is not available, video conferencing facility in DLSA office can be utilized for recording of the evidence of the child witness.”
[Children in Street Situations, In Re, 2022 SCC OnLine SC 189, decided on 01-02-2022]
Kamini Sharma, Editorial Assistant has put this report together