Case BriefsForeign Courts

Supreme Court of United Kingdom : While deciding the question that whether evidence obtained by members of the public acting as “paedophile hunter” (hereinafter PH) groups, can be used in a criminal and whether it is compatible with an accused person’s rights of private life and correspondence under Art. 8 of the European Convention on Human Rights (hereinafter ECHR), the 5 Judge Bench of the Court, unanimously held that, “the interests of children have priority over any interest a paedophile could have in being allowed to engage in criminal conduct”. The Bench emphasised that in the absence of any state surveillance where the issue is regarding the balance of interests of a paedophile and the children who are the recipients of the relevant communications; the reprehensible nature of the communications means that such accused persons will not attract protection under Article 8(1) of the ECHR.

The modus operandi of a PH group is to impersonate children online to lure persons into making inappropriate or sexualised communications with them over the internet, and then provide the material generated by such contact to the police. One such PH group created a fake profile on the Grindr dating application using a photograph of a 13 year old boy so as to attract communications from persons with sexual interest in children. Believing that the decoy was a child, the appellant sent him a picture of his genitals and a message to arrange a meeting. When the appellant arrived for the meeting, he was confronted by members of the PH group who remained with him until the police arrived. The appellant was charged under several provisions of Sexual Offences (Scotland) Act 2009 and Protection of Children and the Prevention of Sexual Offences (Scotland) Act 2005. The appellant objected to the admissibility of the evidence on the basis that it was obtained covertly without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 and without reasonable suspicion of criminality in violation of his rights under Art. 8 of the ECHR.

Dismissing the appeal, Lord Sales (with whom Lord Reed, Lord Hodge, Lord Lloyd-Jones and Lord Leggatt agree) observed that the appellant’s contention that his right of private life and correspondence were interfered with, does not hold ground because the nature of the communications rendered them incapable of being worthy of respect under Art. 8; and the appellant had no reasonable expectation of privacy in relation to the communications. Deliberating upon Art. 8 of the ECHR, the Bench noted that it is implicit in Art. 8(1) that the protected features of private life and correspondence must be capable of respect within the scheme of values the ECHR exists to protect. States party to the ECHR have a special responsibility to protect children against sexual exploitation by adults. The Bench also observed that the appellant may have enjoyed a reasonable expectation of privacy so far as the possibility of police surveillance or intrusion by the wider public are concerned, but not in relation to the recipient of his messages. Once the evidence had been passed on to the police, the appellant had no reasonable expectation that either the police or the respondent should treat them as confidential. [Sutherland v. Her Majesty’s Advocate, [2020] 3 WLR 327 , decided on 15-07-2020]

Case BriefsHigh Courts

Sikkim High Court: While deciding the present appeal wherein the appellant convicted under the POCSO Act, prayed before the Court for his acquittal, the Bench of Meenakshi Madan Rai, J., dismissed the appeal and urged that the Police, the media and especially the POCSO Special Courts to devise methods to protect the identity of a child abuse victim.

Observing the obligation laid down by the POCSO Act, the Court laid emphasis on the sensitive approach of the parties concerned and to the best of their ability to take steps for prevention of such sexual exploitation of children.

As per the facts, the appellant was convicted under Sections 9(l), 9(m) and 9(n) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and S. 354 of the IPC and the sentences were ordered to run concurrently. The counsel for the appellant, Gulshan Lama, raised doubts upon the credibility of the victim’s testimony stating that her evidence lacked corroboration. Per contra, the respondent via their counsel Karma Thinlay Namgyal argued that it is now well established that the evidence of a victim of sexual assault requires no corroboration if the evidence given by her is cogent and consistent; and in the instant matter, the evidence given by the victim has been consistent despite her age and in her cross-examination she did not hesitate.

Perusing the facts of the case, the Court pointed out that there were slip-ups by the Special Court vis-à- vis the protection of the identity of the victim in the impugned decision in issue. The Court noted that the charge-sheet against the appellant also consisted of all the details of the victim. The Court observed that S. 33(7) of the POCSO Act enjoins upon the Special Court to ensure that the identity (which includes child’s family, school, relatives) of the child is not disclosed at any time during the course of investigation or trial. The provisions in law which seek to protect the identity of the child are for the purpose of sheltering her from curiosity and prying eyes, and to protect her future by preventing any kind of tracking and repetition of such incidents which could further traumatize her psychologically creating insecurity and apprehension in her mind. The Investigating Agency for their part should ensure that the identity of the victim is protected and not disclosed during investigation or in the Charge-Sheet. A separate file may perhaps be maintained in utmost confidence, for reference. Furthermore the Court observed that the Child Protection Legislations lay an obligation not only on the Court and the Police, but also on the media and society at large to protect children from the exponentially increasing sexual offences and to the best of their ability to take steps for prevention of such sexual exploitation of children. [Subash Chandra Rai v. The State of Sikkim, 2018 SCC OnLine Sikk 29, decided on 31.03.2018]

Case BriefsSupreme Court

Supreme Court: While hearing the plea seeking compensation of Rs 10 lakh for the parents of an eight-month old baby who was allegedly raped by her 28-year-old cousin in Delhi in the month of January 2018. The 3-judge bench Dipak Misra, AM Khanwilkar and Dr. DY Chandrachud, JJ directed the Registrar Generals of all the High Courts to send intimation to the Supreme Court Registry about the pendency of the cases instituted under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the status of those cases. The Court said that the Registrar Generals may constitute a team, if necessary, to prepare district-wise data.

Earlier, on 01.02.2018, the petitioner had submitted before the Court that there should be speedy disposal of the cases registered under the POCSO Act. Hence, the Court had asked him to file a chart containing data with regard to the cases pending at various places, along with the reasons for delayed disposal, so that the Court can take a holistic view of the matter.

The Court will now take up the matter on 20.04.2018. [Alakh Alok Srivastava v. Union of India, 2018 SCC OnLine SC 212, order dated 12.03.2018]

Case BriefsSupreme Court

Supreme Court: Refusing to expand the scope of the word ‘child’ under Section 2(d) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) to include  the   “mental   age”   of   a   person   or   the   age determined   by   the   prevalent   science   pertaining   to psychiatry   so   that   a   mentally   retarded   person   or   an extremely intellectually  challenged person who even has crossed the biological age of 18 years can be included within the holistic conception of the term “child”, the bench of Dipak Misra and R.F. Nariman, JJ held that the Parliament has felt it appropriate that the definition of the term “age” by chronological   age   or   biological   age   to   be   the   safest yardstick   than   referring   to   a   person   having   mental retardation.

In the case where both the judges wrote their separate but concurring opinion, it was said that the POCSO Act has identified minors and protected them by prescribing the statutory age which has nexus with the legal eligibility to give consent. It may be due to the fact that the standards of mental retardation are different and they require to be determined   by   an   expert   body.   The   degree   is   also different.  If a victim is mentally retarded, definitely the court trying the case shall take into consideration whether   there   is   a   consent   or   not.   In   certain circumstances, it would depend upon the degree of retardation or degree of understanding. It should never be put in a straight jacket formula.

Explaining the scope of the power of the Court to interpret the word “child” to give it a broader meaning, it was noticed that the legislature despite having the intent in its Statement of Objects   and   Reasons   and   the   long   Preamble   to   the POCSO Act, had defined the term “age” which does not only mention a child  but adds the words “below the age of 18 years”. The Court said that had the word “child” alone been mentioned in the Act, the scope of interpretation by the Courts could have been in a different realm and the Court might have deliberated on a larger canvass.

The Court was hearing the appeal of a sexual assault victim suffering from Cerebral Palsy due to which though being a 38-year-old, her mental age is no more than 6-8 years. [Eera v. State, 2017 SCC OnLine SC 787, decided on 21.07.2017]

Case BriefsHigh Courts

Calcutta High Court: While deciding the instant appeal wherein the appellant was accused and convicted of sexually abusing a minor girl which is punishable under Section 8 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, the Bench of Joymalya Bagchi, J., laid down directives to the investigating agencies, prosecutors and the Special Courts so that they follow the spirit of the provisions laid down in the POCSO Act and CrPC in order to preserve the fundamental right of dignity of a child victim and their other basic human rights. The Court laid special emphasis upon the protection of privacy (namely identity) of child sexual abuse victims during the course of investigations and trials. The directives are as follows:

  • Officer-in-Charge of the police station and the investigating officer in the case including the Special Juvenile Police Unit shall ensure that the identity of the victim is not disclosed in the course of investigation, particularly at the time of recording statement of the victim. The investigating agency shall not disclose the identity of the victim in any media and shall ensure that such identity is not disclosed in any manner whatsoever except the express permission of the Special Court in the interest of justice. It was further directed that the identity of the victim particularly his/her name, parentage, address or any other particulars that may reveal such identity shall not be disclosed in the judgment delivered by the Special Court unless, such disclosure of identity is in the interest of the child.

  • Police Officer or the Special Juvenile Police Unit receiving complaint as to commission or likelihood of commission of offence under the POCSO Act shall register the same and furnish a copy free of cost to the child and/or his/her parents.

  • If the child is unable to arrange for his/her legal representation, the child shall be referred to the District Legal Services Authority for necessary legal aid/representation under Section 40 of the POCSO Act.

  • The Police Officer on registration of FIR shall promptly forward the child for immediate emergency medical aid, whenever necessary, and/or for medical examination.

  • Trial of the case shall be held in camera and evidence of the victim shall be promptly recorded without unnecessary delay. The Special Court shall not permit any repetitive, aggressive or harassing questioning of the child particularly as to his/her character assassination, which may impair the dignity of the child during such examination.

  • The quantum of the compensation shall be fixed taking into consideration the loss and injury suffered by the victim and other related factors as laid down in Rule 7(3) of the POCSO Rules, 2012 and shall not be restricted to the minimum amounts prescribed in the Victim Compensation Fund.

  • The Special Courts to ensure that the trials under POCSO Act shall conclude as expeditiously as possible preferably within a year from taking cognizance of the offence and without granting unreasonable adjournment to the parties.

[Bijoy v. The State of West Bengal, 2017 SCC OnLine Cal 417, decided on 02.03.2017]