Rajasthan HC Issues Guidelines For Test Identification Parade In POCSO Cases, Orders Lower Courts For Immediate Implementation in POCSO Trials

In a significant ruling, the Rajasthan High Court, Jaipur has issued guidelines for Test Identification Parade (TIP) in POCSO Cases. The court ruled that special Judges of POCSO Act cases and all the District & Sessions Judges of the State shall ensure the immediate implementation of this order amongst all the judicial officers and all courts in their respective jurisdiction, which are conducting the trial of POCSO Cases Justice Farjand Ali, while issuing the guidelines for TIP, rejected the bail application of the accused and ordered, "This order shall be conveyed by the Registry of this Court to all learned special Judges of POCSO Act cases and all the District & Sessions Judges of the State, who shall ensure the immediate implementation of this order amongst all the judicial officers and all courts in their respective jurisdiction, which are conducting the trial of POCSO Cases." The court observed that though the victim is not supposed to be confronted with the accused and every endeavour should be made to avoid exposure of the victim. The court opined that whenever a situation arises, the identification of the accused should be made through a different mechanism. The accused may be kept in a veiled area and his face should be shown to the prosecutrix on a monitor or screen installed at a distant portion so that the victim can be protected from being frightened after seeing the accused and thereafter the screen can be shut down, added the court. It was noted by the court that Section 42A of the POCSO Act envisages that the provisions of the special Act shall be in addition to the other existing laws. The court pointed out that in case of inconsistency in between the special law and general law, the provision of the special Act would have an overriding effect upon the general law. It was added that the latin maxim, 'Generalis Specially bus Non-derogant' which means that general laws do not have an overriding effect over special laws or the general law does not detract from specific law. In other words the maxim' means that for the purposes of incorporation of two statues in apparent conflict, the provisions of a general statutes must yield to those of a special one, added the court. The court noted that for every problem, there is a solution and in furtherance, remarked, "For a moment; leave apart the factual and legal aspect of this matter, imagine that a victim have no acquaintance or does not know the accused and she is molested or ravished by an unknown accused then what procedure should be followed? Whether the accused can be left scot-free for the deficit evidence of identification or he should be tried and punished adequately." Considering it appropriate to lay down a guideline to be followed by the Courts below whenever the fact situation arises like the present matter, until the law is made on this issue, the court remarked, "The Courts are meant to impart justice and only for that very purpose, it is established. When a situation arises that the victim below 18 years old does not know the accused who ravished her, then of course it is the duty of the Court to evolve a mechanism for the solution of the problem. Certainly, the mechanism must not be in conflict with the special and general law and in all circumstances the same should be in consonance with the prevailing law and criminal jurisprudence." Guidelines The court issued following guidelines in respect of Test Identification Parade (TIP) in cases of POCSO Act:a. In every case where the witness/ victim is a child below the age of 18 years TIP proceedings shall be held in one of the court rooms during the course of trial. No pre-trial identification would be mandatory.b. Installation of CCTV cameras, computer screen or mechanism in a room where TIP proceedings will be conducted so that the child witness is not confronted face to face with the accused participating in the TIP proceedings.c. Person accused of the offence and the others having some resemblance with the features of accused; who may be participating in the TIP will be explained the procedure and the manner of TIP proceedings to be held in a case of child witness.d. The child and the accused should not be at one place in the courtroom, it must be separate, so that he or she may not be exposed directly or confronted.e. The presiding officer of the court shall show the live streaming of accused standing with other persons in a separate area; to the victim on the monitor/screen. The presiding officer then ask the victim to identify the accused among the others standing with him. As soon the process is done, the screen shall be shut down. The presiding officer then note down the response as well demeanor of the witness in the case file.f. So far as possible only female officers may be...

Rajasthan HC Issues Guidelines For Test Identification Parade In POCSO Cases, Orders Lower Courts For Immediate Implementation in POCSO Trials

ANIRUDH VIJAY

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