It has to be pointed out at the beginning itself that with over 30,000 cases of child sexual assault under the Protection of Children from Sexual Offences (POCSO) Act 2012 pending at the trial stage in Uttar Pradesh alone which is notorious as the 'rape and crime capital of India” as was slammed by former UN Secretary General Ban ki moon, the Supreme Court on May 1, 2018 finally decided to step on the gas and in the landmark case titled Alakh Alok Srivastava vs Union of India & Ors [Writ Petition (C) No. 76 of 2018) very rightly issued elaborate guidelines for timely completion of investigation and trial in POCSO offences. The Supreme Court ordered the High Courts to ensure that all cases pertaining to sexual offences against children are fast-tracked so that trials are completed within six months. It also said that investigations of pending cases should be completed within two months of a first information report being registered.
To put things in perspective, an Apex Court Bench of Chief Justice Dipak Misra, Justices AM Khanwilkar and DY Chandrachud issued a string directions in respect of the trial and disposal of matters under the POCSO Act of 2012. It directed all High Courts in the country to set up a judicial committee comprising three or such other numbers of Judges to monitor and regulate trials pending before the special courts constituted under the Act to exclusively try various natures of sexual assault on children up to 12 years. The High Courts were also directed to issue timely instructions to these courts to fast track trials by following a policy of no adjournments and by strictly following the procedure laid down under the Act.
While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Bench was hearing the PIL filed by advocate Alakh Alok Srivastava who drew the singular attention of the Apex Court to the shocking and ghastly incident of rape of an eight-month-old girl by her 28-year-old cousin in Shakur Basti of North-West Delhi in January, seeking guidelines to ensure that investigation and trial of cases involving rape of children below the age of 12 years is completed within six months from the date of lodging of the FIR. Since then, the child had to undergo two corrective surgeries to treat her ruptured private parts. Alakh complained about poor implementation of the POCSO Act by supplying list of pendency of cases State-wise except three States of Andhra Pradesh, Telangana and Rajasthan. The Apex Court noted that of all States, UP topped the pendency chart with 30,884 cases pending at various stages of trial. Maharashtra followed with 16,099 cases pending and Madhya Pradesh with 10,117 cases pending.
It would be pertinent to mention here that Section 35 of the Act mandates completion of the trial as early as possible. The directions by the Apex Court have certainly added teeth to the recent amendments to the POCSO Act introduced by the Centre mandating completion of investigation by police in two months, trial within the next two months and disposal of appeals in six months. These directions must be implemented in totality!
Needless to say, the Apex Court Bench issued the following directions:-
1. 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.
2. 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.
3. The instructions should be issued to the Special Courts to fast-track the disposal of matters by not granting any 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..
4. 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 Justice of the said courts shall constitute one Judge Committee.
5. 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.
6. 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.
It is heartening to note that in April, after widespread outrage spread over the gang rape and murder of an eight-year-old girl in Jammu and Kashmir's Kathua and the alleged rape of a teenager by a BJP legislator in UP's Unnao, the Centre has courageously proposed and brought an ordinance to introduce the death penalty for those found guilty of raping girls aged less than 12 years. Those who rape minors must be sent to the gallows. This should have been the case since 1947 but is now finally in 2018 that we see Centre bringing an ordinance to punish rape of minors below 12 years with death penalty which must be applauded by one and all!
Having said this, it must be said that just death penalty alone is not enough. Death penalty must be executed within the shortest possible time and not after 30 or 40 years because it then loses its deterrence power which is exactly what is happening in India even in high profile cases. We all know how the 1993 Mumbai bomb blast case in which more than 257 people died and many others were injured lingered on for 25 years and then the decision came from the lower court and some accused have already died a natural death and many have fled the country! This must stop in our country once and for all if the offenders are to be deterred from committing repeated crimes in India and then escaping to foreign countries with impunity!
Truth be told, nearly 32% of cases filed under the POCSO Act which deals with sexual abuse of minors were pending police investigation at the end of 2016 while 89% were pending trials. It must be noted that 48,060 cases were sent for investigation, 1,01,326 cases sent for trial and 90,205 cases pending trial at the end of 2016. Cases must be expedited and completed within the shortest possible time so that the offenders are swiftly punished for what they have done and not allowed to enjoy life for many decades just because the cases remain pending in different courts!
Be it noted, the three-Judge Bench led by CJI Dipak Misra rejected the suggestion to include mentally-retarded women in definition of child under POCSO. PIL petitioner-cum-advocate Alakh Alok Srivastava had specifically complained that Section 35 of the POCSO Act, which envisaged conclusion of trial within one years from the date of cognizance taken by courts, was observed in the breach. He quoted National Crime Records Bureau statistics to inform the court that aqs many as 8,904 cases of sexual offences against children were reported in 2014 under POCSO Act, of which 7,970 cases were still pending belying the law's objective to provide speedy trial and making a complete mockery of it.
Quoting a Delhi Police report of May 2016, Srivastava had told the Apex Court that 5,217 cases were registered by it between 2012 and 2015 under POCSO Act. He also revealed that, 'Out of this, investigation is still pending for more than a year in 251 cases, for two years in 90 cases and for more than three years in 14 such cases. Such inordinate delay in completion of investigation and consequent incessant delay in completion of trial are defeating the very purpose of POCSO Act.”
Quite rightly, Srivastava pointed out that speedy trial was available not only to the accused but also to sexually assaulted children and their families. He also rightly said that, 'Speedy completion of trial reduces the psychological suffering of rape survivors. Hence, it is in the interest of justice that investigation and trial are completed in a time-bound manner, maximum six months from the date of incident.”
One hopes earnestly that this will be ensured uniformly because this alone will ensure that rapists start fearing being punished and hanged for doing one of the most ghastly crime of not sparing even a child for which there can be no excuse and no ground to spare them from being sent to the gallows! It is for the Centre and all State Governments to ensure that all cases pertaining to rape of children below 12 years are pursued most swiftly and effectively so that by deploying the best legal team to ensure that the accused are not able to escape by taking advantage of one loophole or the other which is pointed out by the battery of legal team hired by them! Let's hope so!