Custodial decisions for child witnesses in sexual offense cases must prioritize their best interests, ensuring protective measures against potential influence or tutoring from guardians.

JUDGMENT :

Heard Mr. S.K. Singh, learned senior counsel appearing for the petitioner. Also heard Mr. B. Sarma, the learned Addl. Public Prosecutor, Assam as well as Mrs. BRA Sultana, the learned Legal Aid Counsel.

2. This is an application under Section 397 read with Section 401 of the CRIMINAL PROCEDURE CODE (CrPC) challenging the order dated 29.09.2022 passed by the learned Special Judge (POCSO), Sonitpur, Tezpur in Special POCSO, Case No.53/2021.

3. The petitioner is the husband of the Respondent No.2. They have a 12 year old girl child. The petitioner and the Respondent No.2 have a strained relationship and therefore they live separately. Their girl child lives with the Respondent No.2. A divorce proceeding is going on between them.

4. It may be stated that though the petitioner had a strained relationship with the Respondent No.2 and though their daughter used to reside with her mother at Rangapara, the petitioner often comes to Rangapara and gives company to his daughter by taking her out of the house of the Respondent No.2.

5. On 11.09.2021, the Respondent No.2 had lodged a complaint before police alleging that on 19.07.2021, the petitioner, being the father of her daughter, took her to the house of his mother during the day time. But at night, he took the girl to his rented house and applied talcum powder over her body and in that process touched her breasts. The Respondent No.2 further alleged that at that time, the petitioner tried to molest her sexually. According to the Respondent No.2, on 08.09.2021, the petitioner brought the girl to the house of the Respondent No.2 and the girl narrated the aforesaid incidents to her mother.

6. On the basis of the said complaint, police registered Tezpur P.S. Case No.1949/2021 under Sections 354(A) of the INDIAN PENAL CODE (IPC) r/w Section 8 of the POCSO Act. On conclusion of investigation, police filed the charge sheet against the present petitioner. Now, the trial is going on.

7. Before examination of the foresaid 12 year old girl, the petitioner had filed an application before the trial court stating that his daughter was tutored by her mother and therefore, before her examination, she should be kept in the custody of some other person. The trial court rejected the said prayer.

8. Therefore, the petitioner had approached this Court in Criminal Revision Petition No.337/2022. This Court has held that the order of rejection of the prayer of the petitioner was cryptic. Therefore, the said order was set aside and the matter was remanded to the trial court for deciding afresh.

9. This time, the trial court again rejected the prayer of the petitioner on 29.09.2022. The trial court held as under:

“Considering the best interest of the child that the victim is under the care and custody of her natural guardian, i.e. the mother and also considering the Rule Nos.15 & 16 of Rules for Recording of Vulnerable Witnesses in criminal cases, Notification No.23 dated 5^th May, 2022, I am not inclined to appoint any person as guardian ad litem to the victim as the victim is under the care of her mother.”

10. I have considered the submissions made by the learned counsel of both sides.

11. Rule Nos.15 & 16 of the guidelines for recording of evidences of vulnerable witnesses, read as under:

“15. Appointment of Guardian ad litem –

The court may appoint any person as guardian ad litem as per law to a witness who is a victim of, or a witness to a crime having regard to his best interests after considering the background of the guardian ad litem and his familiarity with the judicial process, socia