SC Passes Directions For Sensitisation Of Judicial Officers In POCSO Cases

The Supreme Court of India recently highlighted the mandatory requirement of withholding the name of the victim in a POCSO (Protection of Children from Sexual Offences Act) case as per Section 33(7) of POCSO Act and Section 228 of the Indian Penal Code.

Bench comprising Justice Sandeep Mehta and Justice PB Varale observed that in the instant case, "we must observe that the mandatory requirements of Section 33(7) of the POCSO Act and Section 228A of the I.P.C. have not been followed in this case inasmuch as while recording statements of the victim under Sections 164 and 161 of the Cr.P.C., her name is mentioned, and has not been masked as per law laid down in Nipun Saxena v. Union of India reported in (2019) 2 SCC 703."

In the above-mentioned judgment, the Apex Court had held that, "Neither IPC nor CrPC define the phrase “identity of any person”. Section 228-A IPC clearly prohibits the printing or publishing “the name or any matter which may make known the identity of the person”. It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. We are clearly of the view that the phrase “matter which may make known the identity of the person” does not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The intention of the law-makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future.………A bare reading of Section 24(5) and Section 33(7) makes it amply clear that the name and identity of the child is not to be disclosed at any time during the course of investigation or trial and the identity of the child is protected from the public or media. Furthermore, Section 37 provides that the trial is to be conducted in camera which means that the media cannot be present. The entire purpose of Pocso is to ensure that the identity of the child is not disclosed unless the Special Court for reasons to be recorded in writing permits such disclosure. This disclosure can only be made if it is in the interest of the child and not otherwise. One such case where disclosure of the identity of the child may be necessary can be where a child is found who has been subjected to a sexual offence and the identity of the child cannot be established even by the investigating team. In such a case, the investigating officer or the Special Court may allow the photograph of the child to be published to establish the identity. It is absolutely clear that the disclosure of the identity can be permitted by the Special Court only when the same is in the interest of the child and in no other circumstances. We are of the view that the disclosure of the name of the child to make the child a symbol of protest cannot normally be treated to be in the interest of the child.”

The Court suggested that an exercise of sensitisation of judicial officers as well as the police Officers was required to be undertaken in the State of West Bengal so as to ensure strict compliance of this mandatory requirement.

The anticipatory bail application was dismissed. The Court directed that the copy of its order be placed before the Chief Justice of Calcutta High Court.