Delhi High Court
The Delhi High Court on Saturday held that investigating agencies can record multiple statements of a child victim of sexual abuse and a contradictory initial account of the incident would not be a reason to disbelieve subsequent versions by the minor.
A bench of Acting Chief Justice Gita Mittal and Justice Anu Malhotra said that the multiple statements should be carefully scrutinized by the trial courts to ensure that complete justice is done.
The bench said that children "do not disclose in one go but do so in piece meal".
The court also said that under the Protection of Children from Sexual Offences (POCSO) Act, which was enacted to effectively address sexual abuse and sexual exploitation of children, a statement about the incident of sexual abuse can be made only to a police officer or a magistrate.
"Provisions of the POCSO Act or the Juvenile Justice Act do not contemplate any report to be made by a counsellor," the bench said.
It added that both laws make it "explicitly clear" that a report or notes of a counsellor or any person or expert recognized under the two Acts "are confidential in nature and the same cannot be made a part of the charge sheet or otherwise (be included) on the trial court record".
The findings by the court came in response to a query by a Principal Magistrate of a Juvenile Justice Board (JJB) in 2016, regarding the legality of multiple statements by a child victim as well as the validity of the statements recorded by NGOs or counsellors.
Answering the queries raised by the JJB magistrate, the high court said, "The law allows the investigating agencies to record multiple statements of the victims. There is no prohibition on recording multiple statements by the police. A seemingly contradictory initial account is not a reason in itself to disbelieve the subsequent accounts by the victims.
"The multiple statements placed by the investigating agency should be carefully scrutinized by the trial courts in order to ensure that complete justice is done."
Giving reasons for its finding, the bench said that children "do not disclose in one go but do so in piece meal".
"To accord the same treatment to a child as one would to an adult would result in grave injustice. It needs no elaboration that the children would be reluctant and unlikely to disclose an entire adverse experience in proper detail in their first statement to the police, let alone the necessary details.
"The fear for themselves or their family; an apprehension that they would be disbelieved; inability to identify themselves as victims; pressure or threats from the perpetrator; relationship to the perpetrator; fear of embarrassment, shame or self-blame; fear of stigmatization; lack of trust with the investigating agency amongst other would be some of the reasons which would act as barriers to a child making a disclosure of a complete incident in a single meeting," the court said.
Regarding the legality of recording of the minor victim's statement by an NGO or counsellor, the court said that the POCSO Act clearly establishes that the child's account of the incident be recorded only by a police officer and/or a magistrate and not by any third party.
"The law has also clearly delineated specifically even the gender, attire, manner and the place at which such statement would be recorded," it said.
A close scrutiny of the legislation would show that the law does not anywhere envisage recording of a statement of child victim by a counsellor or a report of any kind from a counsellor about his/her interactions with the child, the bench added.
"It is trite that where law prescribes, the manner in which an act has to be performed, it has to be performed in that manner or not at all," the bench said and added that the role of a counsellor or an NGO representative was only to be present at the time of recording of statement, to assist the child and "not assist in the investigation," the court said.
The court also said that reports of an NGO or a counsellor relating to a child in need of care and protection or in conflict with law "are required to be treated as confidential".
"The confidentiality thus attached to the report by any person or expert is absolute. So far as the victim is concerned, other than the police or the magistrate, no person or authority is authorized to take any forensic interviews.
"For this reason as well, it would be the grossest illegality for any of the person, experts and authorities under the POCSO Act or the JJ Act to make reports which could have any bearing on the case," it said.
