GITA MITTAL, J.

1. The following reference dated 6th October, 2016 has been received from Shri Vishal Singh, Principal Magistrate, Juvenile Justice Board-I, Sewa Kutir Complex, Kingsway Camp, Delhi. Inasmuch as the issues which require to be considered are succinctly set out therein, we extract the reference made by the ld. Judge under Section 395(2) of the Code of Criminal Procedure, 1973 in extenso which reads as follows :

“(1) This Board seeks the kind attention of Hon’ble High Court of Delhi towards the practice adopted by Delhi Police and other connected Institutions in the investigation of cases of rape and sexual assault on women and children.

(2) Juvenile Justice Board conducts inquiry into the offences committed by children in conflict with law in accordance with the procedure laid down in Juvenile Justice (Care and Protection of Children) Act, 2015. While conducting inquiry into offence of sexual assault in case FIR No.621/16, PS Rajouri Garden, U/s. 323/3545B/506/376(D) IPC, this Board noticed that FIR was registered on 20/06/2016 on the basis of statement of victim Ms. ‘N’. Thereafter, IO got the statement of victim Ms. ‘N’ recorded U/s. 164 CrPC by Ld. MM on 23/06/2016. However, on the same day i.e. on 23/06/2016 IO recorded two more statements of victim Ms. ‘N’, either before or after recording of her statement U/s. 164 CrPC by Ld. MM. In addition, one memorandum in the form of Counselling Report was also prepared by Counsellor Ms. Divya Vats, belonging to Sahyog Charitable Trust funded by DCW, Govt. of NCT, Delhi, on the basis of version of victim girl Ms. ‘N’ related to the incident of sexual assault.

(3) Thus, the judicial file contains five versions of victim girl Ms. ‘N’ related to the incident – the FIR, the statement given U/s. 164 CrPC, the statement given to the Counsellor, and two more statements recorded by the IO.

(4) In the cases of sexual assault on women and children multiple recording of statements/versions of the victim can adversely affect the veracity of prosecution case due to obvious reasons. Besides, the recording of statement/version of a victim by anyone other than the IO and judicial officer has no sanction of law, barring exceptional circumstances.

(5) There is no law which sanctions or requires an Investigating Officer to get the statement or version of a victim of sexual offence recorded through an NGO or a private Counsellor. Since it has become a prevalent practice of Delhi Police to get the statement or version of a victim of sexual offence recorded by a private Counsellor working with an NGO and then file the same as a part of Challan/Final Investigation Report U/s. 173 Cr.P.C., its legality needs authoritative pronouncement by Hon’ble High Court.

Thus, the question of law arising in all such cases is hereby referred for the decision of Hon’ble High Court for guidance.

Yours faithfully

(VISHAL SINGH)

Principal

Dated: 06/10/2016

Magistrate,

Juvenile Justice Board-I

Sewa Kutir Complex,

Kingsway Camp, Delhi.

Below is the description of other similar cases pending before JJB-I in which the Investigating Officer got the statement or version of the victim of sexual offence recorded by a private Counsellor, in addition to recording the statement himself and also through a Judicial Officer U/s. 164 Cr.P.C.:-

(a) FIR No.159/16, PS Roop Nagar, U/s. 354/376/34 IPC & Section 6 & 10 POCSO Act.

(b) FIR No.310/16, PS Khyala, U/s. 376/342 IPC & Section 6 of POCSO Act.

(c) FIR No.634/16, PS Ranholla, U/s. 376/342/506/120-B IPC & Section 4 of POCSO Act.”

2. It appears that a practice which is being followed at the pre-trial stages in Delhi in cases under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ or ‘the Act’ hereafter). This may be severely impacting the outcome of trials therein. We are required to consider the permissibility, legality and validity of this practice. The two broad issues raised by this practice which are required to be considered can be enumerated thus :

Q. No. 1: