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*IN THE HIGH COURT OF DELHI AT NEW DELHI

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CRL.REF.No.2/2016

COURT ON ITS OWN MOTION

..... Petitioner

Through:

Mr. Dayan Krishanan, Sr.

Adv. and Mr. Trideep Pais,

Adv. (Amici Curiae) with

Ms. Aakashi Lodha, Mr.

Sanjeevi Seshadri and Mr.

Pranav Jain, Ms. Manvi

Priya

and

Ms.

Vrinda

Bhandari, Advs.

versus

STATE

..... Respondent

Through:

Ms. Aashaa Tiwari, APP for

the State.

CORAM:

HON'BLE THE ACTING CHIEF JUSTICE

HON'BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

GITA MITTAL, ACTING CHIEF JUSTICE

1.

The following reference dated 6^th October, 2016 has been

received from Shri Vishal Singh, Principal Magistrate, Juvenile

Justice Board-I, Sewa Kutir Complex, Kingsway Camp, Delhi.

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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 :

case

FIR

No.621/16,

PS

Rajouri

Garden,

U/s.

323/3545B/506/376(D) IPC, this Board noticed that FIR

victim girl Ms. ‘N’ related to the incident of sexual assault.

In the cases of sexual assault on women and

children multiple recording of statements/versions of the

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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.

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

(VISHAL SINGH)

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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).

Thismay 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:

Q. No. 2:

Q. No. 1 - answered

3.

The principal laws relevant for examination of the reference

in the present case would be the Protection of Children from

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Sexual Offences Act, 2012 (‘POCSO Act’ hereafter) and the

Protection of Children from Sexual Offences Rules, 2012

(‘POCSO Rules’ hereafter) framed thereunder as well as the

Juvenile Justice (Care and Protection of Children) Act, 2015 (‘J.J.

Act’ hereafter).

4.

For expediency, let us set down the relevant provisions of

the POCSO Act thus :

“Chapter VI

PROCEDURES FOR RECORDING

STATEMENT OF THE CHILD

24. Recording of statement of a child.- (1) The statement

choice and as far as practicable by a woman police officer

not below the rank of sub-inspector.

25. Recording of statement of a child by Magistrate.-

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Code.”

5.

Having regard to the scope of the reference, it is critical to

analyze the statutory scheme in order to determine the following :

(i)

Whether a “Counsellor’ is envisaged in law and what is the

role of the counsellor?

(ii)

Whether or not the statements mandate counselling report?

(iii)

What is the legal significance of such counselling

reports/notes prepared by the counsellor?

(iv)

What is the manner in which the statement of a child victim

of sexual offences needs to be recorded under the Acts?

6.

The above extracted provisions of POCSO Act amply

establish that the law contemplates recording of the sta