The court established that in cases under the POCSO Act, a fair identification process must be developed to protect the rights of child victims while ensuring justice for the accused.

ORDER

1. While hearing the bail plea of the petitioner Suresh, it is noticed that the prosecutrix in her statement has stated that the accused was not known to her. During the course of investigation, a photograph was shown by the police just to ascertain his identity. She has been examined in the trial on 10.08.2021 as PW-1 wherein it is deposed by her that a boy named Suresh took her away and raped her. As per her, who the accused Suresh, she didn't know.

2. It is transpiring that when she was examined in the trial, the accused was not produced from the jail no endeavours were made to a certain/verify the fact that whether the accused present in the court was the same against whom she made allegations of rape. The authority/obligation provided under section 165 of the Indian Evidence Act has not been used/exercised by the presiding officer.

3. It is a case of committing an offence of aggravated penetrative sexual assault upon a girl below 16 years where the culprit was not known to the victim, how it can be proved beyond reasonable doubt that the accused facing trial is the same person who committed the offence.

4. This Court vide order dated 14.12.2021, sought an explanation from the Presiding Officer with a view to apprise why no steps were taken for the purpose of ascertainment of the identity of the accused as well as why the examination was not deferred until the production of the accused.

5. An explanation has been furnished by the learned Judge below whereby, taking resort of Section 36 and 37 of the POCSO Act, it is apprised that for the purpose of maintaining the privacy of the victim as well as in order to ensure fairness of the trial, she was not exposed to the accused and therefore, the identification was not conducted. Reliance has also been placed on M. Kanan Vs. state of Tamil Nadu 2018 Criminal Law Journal Page 116.

6. In my considered view, though the victim is not supposed to be confronted with the accused and every endeavour should be made to avoid exposure of the victim. Yet whenever a situation arises, as arose in this case, 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 distant portion so that the victim can be protected from being frightened after seeing the accused and thereafter the screen can be shut down. This issue is deemed appropriate to be dealt hereinafter.

7. This Court is conscious of the fact regarding the procedure established by law and the special provisions envisaged in the POCSO Act. Section 42A of the POCSO Act envisages that the provisions of the special Act shall be in addition to the other existing laws. The general law does not derogate or limine special provision. In case of inconsistency in between the special law and general law, the provision of the special Act would have overriding effect upon the general law. This can be understood from the old principle of criminal jurisprudence. There is latin maxim, 'Generalis Specially bus Non-derogant' which means that general laws do not have overriding effect over special laws or the general law does not detract from specific law. In other words 'Generalis Specially Bus Non-derogant' means that for the purposes of incorporation of two statues in apparent conflict, the provisions of a general statues must yield to those of a special one. However, this Court cannot shut its eyes off when the problem like above emerges. It is said that for every problem, there is a solution. 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.

8. The Courts are meant to impart justice and only for