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Is It Alive Only On Paper - Special Task Force/Committee (POCSO) Of Delhi Police Constituted As Per Alakh Alok Srivastava Judgement?

Mohit Kumar Gupta
1 April 2021 1:31 PM GMT
Is It Alive Only On Paper - Special Task Force/Committee (POCSO) Of Delhi Police Constituted As Per Alakh Alok Srivastava Judgement?
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"Children are highly vulnerable. They have little or no power to protect or provide for themselves and little influence on so much that is vital to their well-being. Children need others to speak for them, and they need decision-makers who put their well-being ahead of selfish adult interests." - Dallin .H. Oaks

Recalling the rationale behind the 'The Social Contract' Theory 1762 propounded by Jean Jacques Rousseau, one may note that when with time the state of nature changed, it led to the 'need of a response to the sorry state of affairs and to remedy the social and moral ills that have been produced by the development of society.' The criminal justice system of India was envisaged and brought in firstly to safeguard the rights of individuals, secondly to curb and punish the criminals, and thirdly to ensure that the society is evolved into a better place to leave in.

Looking into the past, there is no denying fact that child abuse in India has been prevalent since time immemorial, whether in the form of slavery or sexual violence, the innocent children have been seen made subject to unnatural violence, but since the discussion revolves around the decision dated May 01, 2018 of the Hon'ble Supreme Court of India in the matter of Alakh Alok Srivastava Vs. Union of India (2018) 17 SCC 291, and its compliance, one can find the preliminary observations and thoughts of the Hon'ble Court get reflected from the para no. 10 and 17 perspicuously:

"10. The POCSO Act has been legislated keeping in view the fundamental concept under Article 15 of the Constitution that empowers the State to make special provisions for children and also Article 39(f) which provides that the State shall in particular direct its policy towards securing that the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. The Statement of Objects and Reasons of the Act indicate the focus for reduction of child abuse and protection of children from the offences of sexual assault, sexual harassment and pornography, etc…………..

17. The aforesaid provisions make it clear as crystal that the legislature has commanded the State to take various steps at many levels so that the child is protected and the trial is appropriately conducted."

The Protection of Children from Sexual offences Act, 2012 (as amended from to time and as in force), with its Statement of Objects and Reasons along with the Preamble and Introduction, leaves nothing material to comprehend the legislative intent, however the question really lies in as to where are we failing in realising that intent in letter and spirit. The data, yet gain, calls for its presence, before jumping in for any conclusion or inference, while reviewing the implementation of the statutory provisions as well as the compliance of the judge made law and when absolute numbers seems incomprehensible to reckon the magnitude of the problem, the percentage comes to a sheer rescue.

According to the NCRB Data of Crime in India, there were 1,48,185 cases of crime against children in India in 2019 as opposed to 1,41,764 cases in 2018 and the major crimes recorded were of Kidnapping and abduction, followed by 31.2 per cent cases under the POCSO Act. The data further shows critical concerns areas when it is found that 26,192 cases under the POCSO Act involved rape charges and 24,672 accused were known to the survivors. In total, registration of cases under the POCSO Act has increased by 18.9 per cent, which is a worrisome trend.

Even 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 provided certain insightful statistics about POCSO cases, the relevant extract therefrom (with regard to the present discussion and apart from the above shared statistics released by the NCRB), is reproduced herein below, along with the connected observations of the Hon'ble Court:

"……it appears that one major reason for the inability of the stake holders to meet the deadline stipulated under the Act, is lack of awareness and lack of dedication in completing investigation, etc. within the time frame stipulated and also inadequacy of the number of courts which has resulted in cases remaining pending beyond the period mandated for completion of trial under the Act."

- emphasis supplied

7.5 Time taken in completion of investigation:

Within 30 days - 18%

31-60 days - 17%

61-180 days - 29%

181-365 days - 16%

More than one year - 20%

7.6 Time taken by Police in depositing Samples with FSL Laboratory:

Within 30 days - 51%

31-60 days - 19%

61-180 days - 17%

181-365 days - 6%

More than one year - 7%

7.9 Pendency of POCSO Cases in percentage {Sec.35(2) mandates trial to be completed within one Year}:

Pending for more than 4 years - 8%

Pending for 3-4 years - 10%

Pending for 2-3 years - 17%

Pending for 1-2 years - 28%

Pending for less than 1 year - 37%

Considering the pace of the investigation and consequent trial in POCSO cases, as evident from the statistics which are no way less than in derogation to the mandate of sub-section (2) of Section 35 of the POCSO Act, 2012 i.e. "2. The Special Court shall complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence.", The Hon'ble Supreme Court of India in re Alakh Alok Srivastava, issued the following six (6) directions:

  • The High Courts shall ensure that the cases registered under the POCSO Act are tried and disposed of by the Special Courts and the presiding officers of the said courts are sensitized in the matters of child protection and psychological response.
  • The Special Courts, as conceived, be established, if not already done, and be assigned the responsibility to deal with the cases under the POCSO Act.
  • The instructions should be issued to the Special Courts to fast track the cases by not granting unnecessary adjournments and following the procedure laid down in the POCSO Act and thus complete the trial in a time bound manner or within a specific time frame under the Act.
  • The Chief Justices of the High Courts are requested to constitute a Committee of three Judges to regulate and monitor the progress of the trials under the POCSO Act. The High Courts where three Judges are not available the Chief Justices of the said courts shall constitute one Judge Committee.
  • The Director General of Police or the officer of equivalent rank of the States shall constitute a Special Task Force which shall ensure that the investigation is properly conducted and witnesses are produced on the dates fixed before the trial courts.
  • Adequate steps shall be taken by the High Courts to provide child friendly atmosphere in the Special Courts keeping in view the provisions of the POCSO Act so that the spirit of the Act is observed.

- emphasis supplied

Since the focus is on the direction no. (v) contained in the abovementioned judgment, in the context of Delhi jurisdiction, for which the Delhi Police came up with the constitution of a Special Task Force in compliance thereof, there appears a strange kind of two set of compositions of the STF being found, one being through an office order and another through the Standing Order, both issued for or in the name of Commissioner of Police, Delhi and relevant extract reproduced herein below:

STANDING ORDER NO. 303 OF 2019 'GUIDELINES FOR POLICE RESPONSE AND INVESTIGATION IN CASES OF SEXUAL OFFENCE.'

Special Task Force

In view of the orders of the Hon'ble Supreme Court in WP (Civil) No. 76/2018 titled 'Alakh Alok Srivastava Vs. Union of India & Ors.', a Special Task Force has been constituted to ensure that the investigation of POCSO Act cases is properly conducted and witnesses are produced on the dates fixed before the trial Courts. Following officers will be the members of the Special Task Force:-

1. Special Commissioner of Police (Crime),

2. Concerned Joint Commissioner of Police (Range),

3. Concerned Deputy Commissioner of Police,

The STF will meet periodically and monitor the cases so that there is no irregularity and delay in the investigation of POCSO Act cases. Suitable directions shall be given to SHO and IO and it will be ensured that the same are meticulously complied with.

emphasis supplied

OFFICE ORDER: SUBJECT: WP(C) NO. 76/2016 ALAKH ALOK SRIVASTAVA VS. UOI-REGARDING.

Committee

The Commissioner of Police, Delhi is pleased to constitute a committee consisting of the following officers to monitor the progress of investigation of all cases registered under POCSO Act and ensuring production of witnesses in the court in compliance of order dt. 05.01.2018 passed in the above captioned matter by Hon'ble Supreme Court of India.

1. Spl. CP/Crime Chairperson

2. Jt. CsP/Ranges Member

3. Jt CP/SPUWAC Member

4. Jt. CP/Transport Member

5. DCP/Legal Cell Member

  • emphasis supplied

On a perusal of both the composition of the Special Task Force, one gets confused for the following reasons and issues involved, the same being reduced in the form of a few questions:

  • Whether the Hon'ble Special Courts designated under Section 28 of the POCSO Act, 2012 should rely upon the Special Task Force constituted through the Office Order No. 5539-48/DA-I/Court Cell/PHQ dated 17/05/2018 or the one constituted as found mentioned in the Standing Order No. 303 of 2019 'Guidelines for Police Response and Investigation in Cases of Sexual Offence'?
  • Why the mandate of the Special Task Force i.e. the investigation of POCSO Act cases is properly conducted and witnesses are produced on the dates fixed before the trial Courts, in the case of Standing Order is different from the one contained in the Office Order i.e. monitor the progress of investigation of all cases registered under POCSO Act and ensuring production of witnesses in the court?
  • Why the term 'Committee' has been used in the Office Order, in place of 'Special Task Force' as is found used in the Standing Order, when the direction of the Hon'ble Supreme Court of India was specific to constitute a Special Task Force?
  • If there is inclusion of the officer 'Concerned Deputy Commissioner of Police' regard being had to the Standing Order No. 303 of 2019 'Guidelines for Police Response and Investigation in Cases of Sexual Offence', whether or not, it necessarily presupposes the creation and existence of District Level Special Task Force, though operational at the Headquarter Level because of a single officer of the rank of Special Commissioner of Police (Crime) being available in Delhi Police?
  • Can there be constitution of any committee without a chairperson, as well as member secretary regard being, had to the Standing Order No. 303 of 2019 'Guidelines for Police Response and Investigation in Cases of Sexual Offence' and especially without a member secretary as per the Office Order No. 5539-48/DA-I/Court Cell/PHQ dated 17/05/2018, which essentially renders non-calling of any meeting on missing underlying responsibility and if the same is available and the meeting is called, the same shall remain indecisive with no leadership being available formally?
  • Whether there is any specific role and portfolio of DCP/Legal Cell in matters pertaining to investigation and criminal trials of POCSO cases before the Hon'ble Courts and whether such inclusion as substitution of District Deputy Commissioner of Police is expedient, in terms of the Office Order No. 5539-48/DA-I/Court Cell/PHQ dated 17/05/2018?
  • Whether the Office Order or the Standing Order shall command primacy in terms of Sections 15 (General powers of Commissioner of Police), 19 (Framing of regulations for administration of the police), 133 (Method of proving orders and notifications), 134 (Rules, regulations or orders not invalidated by defect of form or irregularity in procedure) and others of the Delhi Police Act, 1978?
  • Why the Special Task Force constituted under Office Order No. 5539-48/DA-I/Court Cell/PHQ dated 17/05/2018 does not contain the mandate as contained in the Standing Order No. 303 of 2019 'Guidelines for Police Response and Investigation in Cases of Sexual Offence' i.e. The STF will meet periodically and monitor the cases so that there is no irregularity and delay in the investigation of POCSO Act cases. Suitable directions shall be given to SHO and I0 and it will be ensured that the same are meticulously complied with?
  • Whether Hon'ble Special Courts (POCSO) were ever supplied the copy of such constitution of Special Task Force, in any manner?

Finding no answers to the above framed questions in the material available on the website of the Delhi Police, an application was filed with Delhi Police under the Right to Information Act, 2005 seeking factual details concerning the following points of information (relevant extract only), and the information provided, created further mess and opened a Pandora box in itself. The information so provided is attempted to be reasonably collated and contained against each count of information sought to allow relatability and co-relation as a matter of ready reference:

  1. Provide the certified copies of the orders and/or notification (whether office order, circular or public notice) constituting 'Special Task Force' at Head Quarters level in Delhi Police as per the judgement of the Hon'ble Supreme Court in WP (Civil) No. 76/2018 titled 'Alakh Alok Srivastava Vs. Union of India & Ors.'

The Deputy Commissioner of Police, Police Headquarters provided the partly-certified copies of the Office Order No. 5539-48/DA-I/Court Cell/PHQ dated 17/05/2018 and Standing Order No. 303 of 2019 'Guidelines for Police Response and Investigation in Cases of Sexual Offence', although writing an incomprehensible line i.e. "In this regard, a certified copy of judgment passed in WP (C) 76/2018 Alakh Alok Srivastava Vs UOI is enclosed herewith, which is self-explanatory into the matter."

  1. In reference to the judgment mentioned in para no. 1, Provide the certified copies of the orders and/or notification (whether office order, circular or public notice) constituting 'Special Task Force' in each District (14 Districts) of Delhi Police.

The Deputy Commissioner of Police, Police Headquarters provided that the same did not relate to Police Headquarters. However, only the Additional Commissioners of Police of Districts viz. Central, New Delhi, North, Shahdara, South maintained that no Special Task Force was constituted in the their district, while the ones from Districts viz. Outer North, Outer, Rohini, East, South-East, West, North-East did not provide any information by stating 'Not Related' . Interestingly, the District North-West provided the copy of the STANDING ORDER NO. 282 REG. FUNCTIONING OF THE SPECIAL TASK FORCE concerning the handling of crimes related to land grabbing, forcible or coercive dispossession from property etc.

  1. Provide the certified copy of Standing Order No. 303 of 2019 'Guidelines for Police Response and Investigation in Cases of Sexual Offence.'

Though the copy of the Standing Order was provided by the DCP, PHQ but the Additional Commissioners of Police of Districts viz. Outer North, Outer, South, West, North-East did consider the said information as 'Not Related' and therefore did not provide the copy, whether or not the same was available with them.

  1. In reference to point no. 1 and 2, provide the list of dates of meetings of Special Task Force in each district and at head quarter level during the year 2019 and 2020.
  2. In reference to point no. 1 and 2, provide the list of cases (with number and case title) handed or considered by the Special Task Force in each district and at head quarter level during the year 2019 and 2020.
  3. In reference to point no. 1 and 2, provide the certified copies of the
    general instruc
    tions, guidance and directions issued by the Special Task Force in each district and at head quarter level during the year 2019 and 2020.
  4. In reference to point no. 6 above, provide the certified copies of the compliance reports filed by the IOs and SHOs to the general instructions, guidance and directions issued by the Special Task Force in each district and at head quarter level during the year 2019 and 2020.

Concerning the point nos. 4 to 7, though none provided with any information, the DCP, PHQ maintained that, "In this regard, it is intimated that Committee so constituted into the matter represents the Delhi Police. No other information is available in this office", which is incomprehensible till date.

  1. In reference to point no. 1 and 2, provide the web link on the Delhi Police website, wherein the said details along with documents of constitution of Special Task Force is made available. Also provide the date of upload of the said details and documents.

Though none provided any information, the DCP, PHQ maintained that, "The requisite information is not available in this office."

  1. In reference to point no. 1, provide the certified copies of the status reports filed by the Delhi Police before the hon'ble courts.
  2. Provide certified copies of file notings, orders, minutes of meetings, Action Taken Reports, correspondences and communications made(till the date of reply of this RTI application) by offices of
    Delhi Police
    for complying with the judgement of the Hon'ble Supreme Court in WP (Civil) No. 76/2018 titled 'Alakh Alok Srivastava Vs. Union of India & Ors.'

Concerning the point nos. 9 and 10, though none provided with any material information, the DCP, PHQ maintained that, "No status report with regard to the Judgment passed by the Hon'ble Supreme Court in WP (C) No.76/2018 titled Alakh Alok Srivastava Vs UOI & Ors. Was filed by the Delhi Police. However, compliance of the judgment has been made. Detail of the compliance has already been provided in Point No.1 above."

  1. Provide the list of members (Name and Rank) in Special Task Force in each district and at head quarter level.

Though none provided the information, the DCP, PHQ maintained that, "Information pertaining to this office has already been given in the reply of Point No. 1 above."

However, post filing of the RTI Application, the Delhi Police came up with a clarification to the Standing Order No. 303 of 2019 'Guidelines for Police Response and Investigation in Cases of Sexual Offence.' vide Addendum bearing ref. no. O.B. No. 41/2020-No. 6551-6700/Record Br./PHC (AC-__) dated 05-10-2020, the same is reproduced herein below, which clears the air on the applicability of the Standing Order vis-à-vis the Office Order for all purposes and as usual, the Hon'ble Special Courts (POCSO) were kept in dark with the copy of such addendum for reasons best known to the Delhi Police:

Supersession Clause

"This Standing Order supersedes Standing Orders Nos. 303/2010, 313/2005, Addendums issued thereto earlier on the subject matter by PHQ and PHQ Order No. 5539-48/DA-I/Court Cell/PHQ dated 17.05.2018. However, some Circular Orders issued to give effect to relevant Court orders, which are not repugnant or not contrary to the instructions contained in this Standing Order, should be followed in letter and spirit."

emphasis supplied

Witnessing the above superficiality, one can surely seek the application of Salomon v A Salomon & Co Ltd [1896] UKHL 1, [1897] AC 22 in piercing the compliance status of the direction of the Hon'ble Supreme Court of India, when everything appears to be in order hiding the constant and colossal disorder behind, and purportedly for no understandable reasons. The conclusions or inferences, whatever may cull out from the above, clearly shows that besides the constitution of the Special Task Force, the existence thereinafter seems to be only on paper with no meetings called, no agenda put, no decision taken and no direction issued under the dust of belief that everything is fine in Delhi concerning the POCSO cases, which otherwise gets its face clear from the NCRB data and report submitted before the Hon'ble Supreme Court of India. Such specious compliances are more dangerous than no compliance at all and heavy burden of cases on board of the Hon'ble Supreme Court of India might be the only relaxing factor for the statutory police force which is found much responsible and accountable to the political executive, but must come forward to take a stand since the matter pertains to children safety against grave sexual offences. The Hon'ble Special Courts (POCSO), may or may not be practically aware of the direction so issued in the Alakh Alok Srivastava Vs. Union of India (2018) 17 SCC 291, are expected to rope in the services of the Special Task Force to handle shoddy or delayed investigations and particularly in the matters of non-traceability of witnesses, which may indirectly bring back the spirit of life in the force required by magic of movement of court papers somehow.

To conclude, as quoted in the landmark case of M.C. Mehta v. State of Tamil Nadu and others AIR 1997 SC 699, where Hon'ble Mr. Justice B. L. Hansaria as he was then, had said, "We part with the fond hope that the closing years of the twentieth-century would see us keeping the promise made to our children by our constitution about a half-century ago. Let the child of twenty-first century find himself into that 'heaven of freedom' of which our poet laureate Rabindranath Tagore has spoken in Gitanjali. We are twenty years down in the twenty-first century and the dream of securing Justice, Liberty, Equality and Fraternity for our children seems to be a distant reality", we can hope for some guiding light in this dark reality for the children as our future in the country.


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

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