How Special Are The Special Courts Under POCSO Act: Need To Exercise Suo-Moto Jurisdiction In Granting Interim Compensation?

Data and Details, might be inadequately drawn or sourced and at the same time can be deceptive, but its importance can be comprehended in the lines of Jim Bergeson who said that "Data will talk to you, if you're ready to listen" and yes in affirmation, with the blind eye of the state, the judiciary heard the whisper somehow preliminarily. That in the matter of RE: ALARMING RISE IN THE NUMBER OF REPORTED CHILD RAPE INCIDENTS SMW (Crl.) No. 1/2019 vide order dated 13.11.2019, the Hon'ble Supreme Court of India reproduced the statistics contained in the report submitted by its learned registrar before it pertaining to interim and final compensation besides others relevant parameters/issues and thereby the data presented damages the prevalent notions held by us with its startling plain facts which proved to act as answers to many questions left undefined till now:

7.8 Percentage of cases in which interim compensation/final compensation provided:

Interim Compensation NOT provided - 99%

Interim Compensation provided - 1%

Final Compensation NOT provided - 99%

Final Compensation provided - 1%

The Hon'ble Supreme Court of India, in the said matter initiated on its own, went on to record that, the relevant extract is reproduced herein below:

"This report shows a shocking state of affairs. What to talk of trials, in 20% of the cases even investigation is not completed within one year. Virtually, no support persons are provided and no compensation is paid to the victims. Almost two-third of the cases are pending trial for more than one year."

– emphasis supplied

Like every case has a background story, which most of the times remains unspoken or unheard or both, in the tiring hapless journey undertaken by the victim and his/her family/relatives with a practically snail paced system, the exceptions too exist and would now form the model basis for the present discussion. One such real case details came to light through online media (as a model case being now mentioned to highlight system deficiencies and inherent limitations) pertaining to Delhi's jurisdiction, although there are numerous such instances finding evidence of its existence in the court records across the country, that a grisly incident primarily reflecting/suggesting aggravated penetrative sexual assault besides other serious offences had been committed against an innocent 12 year child in Delhi on 04.08.2020, wherein respect thereof, a First Information Report had been registered at P.S. Paschim Vihar West, District Outer Delhi under Section 8 of the POCSO
Act, 2012 (Sexual Assault) and under Section 307 of Indian Penal Code 1860 (Attempt to Murder) which stood amenable to the jurisdiction of Tis Hazari Courts, District West, New Delhi. That, despite the serious nature of the offences being committed, the extent and manner of executing the said horrendous crime against the victim having suffered multiple head and hips fractures, injuries in stomach due to scissors cuts, bite marks over the body and grievous internal injuries in the private parts/organs including intestines and fighting for life in critical condition at AIIMS, had left the citizens unspeakable with emotions of repulsion and anger with voiced quest for justice, as being a sequel to the deranged chronicles of Nirbhaya and Gudiya cases, but news too have a limit on human memory and they are too many, and as a result the emotions might be settled but not the reality in actual.

If one digs deeper into the available material online, one finds out that the investigating agency/local police i.e. Delhi Police had swiftly registered the said First Information Report (FIR) on 05.08.2020 acting under Section 154 of the Code of Criminal Procedure, 1973 in compliance with the directions issued by this Hon'ble Court in Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, and forwarded the said report forthwith under Section 157 of the Code of Criminal Procedure, 1973 to the concerned jurisdictional learned metropolitan magistrate, which by due invocation of section 8 under POCSO Act, 2012, stood changed to the designated Hon'ble Special Court (POCSO) which is empowered to take cognizance of the said offence along with others, either on the very same day or other the next day during court hours but not later than 24 hours of the registration of the said report. One is surely made to believe as a necessary consequence of compliance ensured to the order dated 12.09.2017 of the Hon'ble High Court of Delhi in CWP No. 8183/2017 titled 'Court on its Own Motion Vs. Govt. of NCT of Delhi & Ors.', a copy of above-referred F.I.R. involving 'sexual violence' was sent to the Delhi State Legal Services Authority (DSLSA) on their dedicated e-mail id i.e. sampark.dslsa@gov.in immediately after registration of such F.I.R., not later than 24 hours of such registration; who knows to say yes in agreement, and in fact the further story unfolds with an answer.

One may not have any real choice but to move forward on assumption safely and carefully that the concerned jurisdictional hon'ble Special Court (POCSO) designated as such under Section 28 of the POCSO Act, 2012 as well as the State Legal Services Authority referred to in Section 40 of the said Act, were cognizant of the horrific tale of events as must have been reduced in writing in the report, but as a matter of fact that it took effectively two-three (2-3) days in actual for the entire process right from the drafting application seeking interim compensation through the office of DSLSA/DLSA District West and/or Delhi Commission for Women (DCW), taking consent of the victim's family and getting hearing done before the Hon'ble Court, getting the fact finding and assessment done for calculation of amount and type of compensation through filing of report of concerned Investigating Officer on the orders of the Hon'ble Court, to the actual disbursal of the compensation into the bank account of the victim, if it was so existing and functional, to get completed. But how would one lose sight of the facts mentioned in the Hon'ble Apex Court's recent order when exceptions rule the media headlines whereas a matter of fact to be taken note of by everyone that the swift progressive steps taken by the concerned DSLA/DSLSA could only be attributed to the media glare (including social media) attached with the unfortunate incident, which otherwise would not have been possible or intended with rest cases which usually die or decays with natural delays of time ensued in pursuing the battle of interim compensation. Records do not lie, and lies are not found recorded as all remain in the air.

The story moves ahead while the author keeps his trial in run to interlink each thing of fact, assumptions, realities and exceptions together with the media report published vide the weblink i.e. https://www.news18.com/news/india/sexual-assault-case-delhi-court-grants-rs-2-lakh-interim-compensation-to-12-year-old-girl-2767769.html, which made him learn that the concerned Hon'ble Special Court (POCSO), Tis Hazari Courts, New Delhi had granted an interim compensation of Rs. 2,00,000 (Rupees Two Lakhs only) to the victim child acting upon the application seeking such compensation preferred by the DSLSA/DLSA District West and/or Delhi Commission for Women (DCW), possibly vide order dated 07.08.2020. The author, again alive to the little practical experiences, finds himself perplexed with the amount while questioning himself if it was also a matter of fact that such amount of compensation was not granted as a regular affair in usual course of proceedings even in deserving cases. The story of the particular child victim ends without any further public cry, since the financial assistance was given, not to forget about the announcement of Rs. 10,00,000/- (Rupees Ten Lakhs only) compensation/relief to the victim child made then, by the Hon'ble Chief Minister of Delhi. However, the legal angles remain to be explored to understand as to how the dynamics actually work or should work.

The one, having a reasonable experience of criminal laws or otherwise of functioning of police and magistrates courts, can relate to that it is generally seen that the Investigating Officers/Local Police get the signatures of the concerned jurisdictional learned judicial/metropolitan magistrate or the Hon'ble Special Court, as the case may be, as due acknowledgements on the F.I.R.s registered, after a considerable delay i.e. more than 24 hours of registration of reports or many a times gets such signatures done in batches of F.I.R.s so as to perfunctorily comply with the requirements of the Section 157 of the Code of Criminal Procedure, 1973 which requires the said local police to forward the reports 'forthwith' without any delay and understood to be not later than 24 hours from the time of such registration, which is a matter of serious and germane concern. The term 'forthwith' generally implies 'immediate and without delay' has not been delineated in terms of a timeline in the code, but the same is found usually practiced as within 24 hours of the registration of the said report. One can also argue to infer the said undefined timeline from the provision in the code wherein a specific procedure is provided to be adopted in case the investigation cannot be completed within the period of twenty- four hours fixed by section 57 of the code and therefore considering the same to be practically executable, no occasion so arises where the police be allowed to transmit the report to the magistrate with any delay and in particular beyond 24 hours of its registration.

Since the proceedings before the Hon'ble Special Courts (POCSO) are generally conducted in-camera, members of the public do not get an opportunity to witness the legal proceeding and hence the stories remain contained in the files with no takers, which if studied in certain matters pertaining to victim compensation at the pre-trial stage(s), may find a deepening want of immediate judicial intervention to give effect to the notion of relief and rehabilitation to the victim child by way of grant of interim victim compensation, monetary as well as non-monetary, by acting suo-moto and against the prevalent practices of waiting for some individual or private entity or state agency to file an application seeking compensation, with continuing wait being gestated till the completion of prosecution evidence of the child victim as witness, if the said victim is arrayed as such a witness in the case being prosecuted, before the actual disposal of such application. Statutorily or otherwise, there has been no time limits applicable on the disposal of applications seeking interim compensation and therefore the judicial work process as is adopted in other applications, stands found replicated in such matters which otherwise require immediate intervention and adjudication, as a matter of mechanical and regular business of the Hon'ble Courts.

In the context of above discussions concerning the legal issues involved, the following questions of law are framed with proposed solutions/contextual background to the problems which can make it convenient for the decision making authorities and others to wholesomely appreciate the issues:

Whether the Hon'ble Special Court designated under Section 28 of The Protection of Children from Sexual Offences Act, 2012 (as amended and as in force) is duty bound to initiate suo-moto proceedings for grant of interim compensation to the victim child upon receipt of report forwarded by the concerned Investigating Officer under Section 157 of the Code of Criminal Procedure, 1973?

The Hon'ble Special Courts (POCSO) as designated under Section 28 of The Protection of Children from Sexual Offences Act, 2012 (as amended and as in force) should and are duly expected to peruse the contents of each report i.e. F.I.R. (First Information Report) registered invoking sections of POCSO Act, 2012 once the same are forwarded to them by the concerned Investigating Officer/local police and should only acknowledge the same through signatures and seal/stamps post such perusal. The Hon'ble Special Courts are special in terms of the jurisdiction vested to try cases under a specific statute requiring focus, sensitivity and specialization and therefore the justice demands that there should be preemptive application of mind in determining the prima facie real need of the victim of crime about monetary and non-monetary (medial needs and others) interim compensation considering immediate relief or rehabilitation required and probable irreparable loss to the victim as well as administration of justice which shall ensue, if the need is not attended to, by initiating suo-moto proceedings without waiting for an application being preferred in that regard, which should be completed in a time bound manner, the specifics thereof may be defined by this Hon'ble Court. The co-relation which may be necessitated later on during the trial may require or pre-suppose the use of an abbreviation 'NCSM (Not Considered Suo-Moto)' while signing the reports by the Hon'ble Court, in cases where suo-moto proceedings are not initiated, which shall automatically imply that the concerned aggrieved party may approach the Hon'ble Court with details of their need through an application seeking such compensation, which shall be assessed and adjudicated upon without taking into account the non-exercise of suo-moto jurisdiction by the said or other Hon'ble Court. The Hon'ble Courts, which sometimes wait till the completion of prosecution evidence of the child victim in order to ensure bonafide in terms of need of interim compensation should not lose sight to the embedded provisions in victim compensation schemes of the state wherein procedure to seek recovery of the compensation wrongfully paid is generally prescribed and empowers the Hon'ble Court to initiate appropriate recovery proceedings accordingly, if the need so arises, by taking reference and support of the decision of the Hon'ble High Court of Delhi in the matter of Raj Kumar vs State Crl. Appeal no. 187/2018 as was pronounced on 03 December, 2019.

Whether the interim or final compensation under Section 33 of The Protection of Children from Sexual Offences Act, 2012 (as amended and as in force) read with Rule 9 of The Protection of Children from Sexual Offences Rules, 2020 (as amended and as in force) cannot be lower than the minimum stipulated in the Victim Compensation Scheme notified in the State/U.T. in light of the decision made by this Hon'ble Court in Nipun Saxena & Anr. Vs. Union of India & Ors. WP(C) No. 565 of 2012, Order dated 06.03.2020 in the Suo Moto W.P. (Crl.) No. 1/2019 of this Hon'ble Court and decision made by the hon'ble High Court of Delhi in the matter of 'The Minor Through Guardian Zareen Vs. State (GNCTD) W.P. (Crl.) 798/2015'?

The Hon'ble Special Court (POCSO), in case of Delhi and considering the Delhi's horrific incident of 04.08.2020, might have considered the Part-II, Delhi Victim Compensation Scheme 2018 as a guideline for the award of compensation to the child victim of sexual violence/assault/abuse as per the orders in the case titled Nipun Saxena & Anr. Vs. Union of India & Ors. WP(C) No. 565 of 2012, however it is humbly suggested that the Hon'ble Special Court, in specific reference to the judgement of the Hon'ble High Court of Delhi in the matter of The Minor Through Guardian Zareen Vs. State (GNCTD) W.P. (Crl.) 798/2015 and various applicable clauses of Part-II and Part-I of the scheme read with Notes and Schedules thereto, should have first assessed the need whether to grant monetary or non-monetary compensation or both, without taking into consideration the announcement of Rs. 10,00,000/- (Rupees Ten Lakhs only) compensation/relief to the victim child by the Hon'ble Chief Minister of Delhi. The present situation as is reflected from the media reports suggests that the immediate relief or rehabilitation which the Act places reliance upon, is based upon structured system of judicial intervention as per the laws of the land and not upon one such aberration of political-executive action or largesse (which is based upon people's perception or outrage/uproar, though the same is beneficial to the victim and a welcome act of the state), and should first focusses upon saving the life of the victim child through best of the medical treatment available in India or globally and therefore the grant of sum of Rs. 2 lakhs as compensation by the Hon'ble Court does not seem to be really commensurate in terms of 'Affectionate Justice' which the situation calls for, as the state is duty bound to assist by facilitating medical assistance, whether available in a foreign set-up at this stage before it is too late, if it is so required; and not the provision of direct money to seek and act independently at this distress hours using such state funds. The primary objective of granting an interim compensation should have been to save life, and then to cater to other needs, which the Hon'ble Court must have considered but the compensation should have been more and should be enhanced.

CLAUSE 12 'INTERIM RELIEF TO THE VICTIM'

Provided that the, interim relief so granted shall not be less than 25 per cent of the maximum compensation awardable as per schedule applicable to this Part, which shall be paid to the victim in totality.

18. SAVINGS -

(1) In case this Part is silent on any issue pertaining to Victim Compensation to Women, the provisions of Part I of the Delhi Victims Compensation Scheme, 2018 would be applicable.

Note: If a woman victim of sexual assault/acid attack is covered under one or more category of the schedule, she shall be entitled to be considered for combined value of the compensation.

SCHEDULE TO PART-II

S. No.	Particulars of loss or injury	Minimum Limit of Compensation	Upper Limit of Compensation
9.	Grievous physical injury or any mental injury requiring rehabilitation	Rs. 1 Lakh	Rs. 2 Lakh

SCHEDULE TO PART-I

Note: In case the victim is less than 18 years of age, the compensation amount may be increased by up to 50% more than specified above.

S. No.	Particulars of loss or injury	Minimum Limit of Compensation	Upper Limit of Compensation
8.	Physical abuse of minor	Rs. 2 Lakh	Rs. 5 Lakh
9.	Grievous injury	Rs. 50000	Rs. 2 Lakh

Whether delay in forwarding the report Section 157 of the Code of Criminal Procedure, 1973 (as amended from time to time and in force) to the concerned jurisdictional magistrate empowered to take cognizance of the offence(s), would be considered as a case of prejudice towards the victim of crime in matters of victim compensation requiring state to compensate more as well as an infraction of public duty obligated upon the Investigating Officer in the matter of service rules applicable thereupon?

The practice as seen of the Investigating Officers/Local Police to get the signatures of the concerned jurisdictional learned judicial/metropolitan magistrate or the Hon'ble Special Court, as the case may be, as due acknowledgements on the F.I.R.s registered, after a considerable delay i.e. more than 24 hours of registration of report or many a times to get such signatures done in batches of F.I.R.s so as to perfunctorily comply with the requirements of the Section 157 of the Code of Criminal Procedure, 1973 which requires the said local police to forward the reports 'forthwith' without any delay and understood to be not later than 24 hours from the time of such registration, is a matter of serious and germane concern which should be considered as a case of prejudice towards the victim of crime (it has always been considered, even if it so, as having caused prejudice towards the accused in trial) in matters of victim compensation requiring state to compensate more as well as an infraction of public duty obligated upon the Investigating Officer in the matter of service rules applicable thereupon, the latter being in furtherance to the ratio laid in Jafel Biswas Vs. State of West Bengal Criminal Appeal No. 543 of 2011. The cumulative and catalytic effect of these kind of errors being committed as a regular practice, on the part of the investigating agency at the threshold of the journey of a criminal case, prejudice the life and liberty of the victim child in multiple forms not being apparent as such but yes, the compliance herein shall lead to give real effect to the Hon'ble Special Court exercising its suo-moto jurisdiction invested under the applicable laws.

Another grey area requiring structured research, apart from the statistical data made available before the Hon'ble Supreme Court of India, particularly at the state level, to be initiated by the concerned Hon'ble High Courts, about the disposal rates of the applications seeking interim compensation, whether initiated suo-moto or otherwise upon an application preferred as such, so as to co-relate with the prevalent practices whereby the grant of such interim compensation has been kept on hold till the completion of prosecution evidence of the child victim as witness, if the same has been so arrayed as prosecution witness, which in essence disturbs the very essence of provisioning immediate relief or rehabilitation. If the legislative intent through Section 35 of the POCSO Act, 2012 is understood, then the said practice essentially co-joins the stage of grant of interim compensation with the stage of award of final compensation, which is truly reflective of injustice even in matters of speedy trial. The contours of underlying fears of child victim as witness retracting from the statements made during examination and cross-examination, the caution being exercised by the Hon'ble Courts in preventing any impetus as understood to incentivize victimization on parity principle through provision of direct monetary compensation, or the possible non-indulgence to initiate recovery proceedings to take back compensation from such victims in terms of the judgement of the Hon'ble High Court of Delhi in the matter of Raj Kumar Vs. State Criminal Appeal No. 187/2018, may be acceptable but the delay in disposal of such applications should not be accepted which is a real hindrance to the concept of 'Affordable Justice' to the victims of crime, who are not always supported to endure the long drawn procedures and endless dates to secure preliminary solace through compensation. The disposal of such applications seeking interim compensation is humbly suggested to be done as far as practicable, but in no case, beyond seven (7) days from the date of first hearing being held in relation to such application. The real burden in time based compliance requirements for the State Legal Services Authority and/or District Legal Services Authorities, may get increased and considering the practical facet of delays ensued in compliance of the orders so passed, is altogether a different struggle in particular and an additional consequent concern to be looked upon, but somewhere we all have to agree that the start is to be ensured in the above said suggestive course of action, to reach at least a stage to undertake further discussion on the said issue of compliance/execution.

There is no denying fact that judiciary has remained at forefront in giving due recognition to the child rights and in particular, the Hon'ble Supreme Court of India has itself acknowledged the need and importance of POCSO law as utter necessity to maintain social order through the following observations in the matter of Ms. Eera through Dr. Manjula Krippendorf v. State (NCT of Delhi) and another (2017) 15 SCC 133 :

"The very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment, and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well-being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual, and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing child friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act."

That further, the experiences of a victim in interface with the system during the journey of seeking just justice has been aptly stated in the following observations of this Hon'ble Court in the matter of Mallikarjun Kodagali (Dead) v. The State Of Karnataka (2019) 2 SCC 752 which are relevant apropos:

"2. The rights of victims of crime is a subject that has, unfortunately, only drawn sporadic attention of Parliament, the judiciary and civil society. Yet, it has made great progress over the years. It is our evolving and developing jurisprudence that has made this possible. But we still have a long way to go to bring the rights of victims of crime to the centre stage and to recognise them as human rights and an important component of social justice and the rule of law.

3. The travails and tribulations of victims of crime begin with the trauma of the crime itself and, unfortunately, continue with the difficulties they face in something as simple as the registration of a First Information Report (FIR). The difficulties in registering an FIR have been noticed by a Constitution Bench of this Court in Lalita Kumari v. Government of Uttar Pradesh. The ordeal continues, quite frequently, in the investigation that may not necessarily be unbiased, particularly in respect of crimes against women and children. Access to justice in terms of affordability, effective legal aid and advice as well as adequate and equal representation are also problems that the victim has to contend with and which impact on society, the rule of law and justice delivery.

4. What follows in a trial is often secondary victimisation through repeated appearances in Court in a hostile or a semi-hostile environment in the courtroom. Till sometime back, secondary victimisation was in the form of aggressive and intimidating cross-examination, but a more humane interpretation of the provisions of the Indian Evidence Act, 1872 has made the trial a little less uncomfortable for the victim of an offence, particularly the victim of a sexual crime. In this regard, the judiciary has been proactive in ensuring that the rights of victims are addressed, but a lot more needs to be done. Today, the rights of an accused far outweigh the rights of the victim of an offence in many respects. There needs to be some balancing of the concerns and equalising their rights so that the criminal proceedings are fair to both. The Courts have provided solace to the victim with monetary compensation, but that is not enough. There are victim compensation schemes in force due to the mandate of Section 357A of the Code of Criminal Procedure, 1973 (the Cr.P.C.) but even that is not enough, though they are being implemented in several parts of the country. We are of the view that the judiciary is obliged to go and has gone beyond merely awarding compensation and has taken into consideration the larger picture from the perspective of the victim of an offence……………………………."

At the cost of repetition, it is trite to highlight that since the information in respect of matters having offences committed under POCSO Act, 2012 is not available to the public at large except in basic form without any real substance, one has to believe that the category of children being sought to be dealt with considering the situation prevalent in our country, comes within the category of 'Neglected Children' since this neglect which categorizes them as such, emanates from the state, as an unattended mechanical measure in grant of interim compensation, which though may not be infested with any malice but has caused them to have a distant access to justice system with further repercussions being faced by child victims in terms of recovering from post-offence trauma and injuries to leading a normal blemish free life. That further, the holding hands of the state to one such case, as an aberration, suppress the cases of all other child victims who are similarly situated in terms of sufferings, but have not got the support to create shakes in the executive-political set-up through public uproar on social media or otherwise, and to get proceedings conducted at an extremely swift pace, lest about the extreme urgency being shown by the investigating agency to nab the culprit to satisfy citizens' demand and to quell the people's unrest.

One can really hope that the Hon'ble Courts, as justice guardians of the children in this country may be pleased to seek as to how many cases pertaining to victim compensation in POCSO matters, wherein proceedings have been initiated suo-moto by the Hon'ble Special Courts for grant of interim compensation and the data results as shall be obtained thereinafter may prove to be found unhealthy in the realm of child rights and protection in specific reference to the issues presently raised. One can only rest upon the judicial set--up for dispensation of substantial 'Access to Justice' to be realized for the child victims, who by the present systemic set-up are rendered neglected in terms of being treated as an important stakeholder at pre-trial stage(s) in criminal proceedings especially concerning the grant of interim compensation.

The author is an advocate at High Court of Delhi and District Courts-Delhi NCR. He primarily practices in the areas of Access to Justice, Access to Information (RTI), Criminal Laws, Child Rights, Education and Consumer Laws and engages in public policy matters. He can be reached at contact@blackrobeslegal.com