Full Text
HIGH COURT OF DELHI
JUDGMENT
SOCIAL ACTION FORUM FOR MANAV ADHIKAR & ANR. .....Petitioner
Through: Ms. Charu Walikhanna, Advocate
Through: Ms. Rupali Bandhopadhya, ASC with Mr. Abhijeet Kumar and Ms. Amisha Gupta, Advocates
CONSIDERATION OF THE PRAYERS MADE BEFORE THIS COURT4
Prayer (a): Supply of Copy of the Order of Acquittal Passed by the JJ Board........ 4
Prayer (c): Mechanism for Grant and Disbursement of Compensation to Victims of Sexual Assault .............................................................................................................. 7
Prayer (d): Mechanism for Prompt Intimation to DSLSA and Provision of Victim
Support Services............................................................................................................... 8
Prayers (e) and (f): Policy and Legislative Measures Sought by the Petitioners....10
ISSUE OF AVAILABILITY OF VULNERABLE WITNESS DEPOSITION
CENTRES BEFORE JUVENILE JUSTICE BOARDS ............................... 11
Concern Raised before this Court ...............................................................................11
Reports Received from the Registrar General and DHCLSC.................................13
DR. SWARANA KANTA SHARMA. J INTRODUCTION & FACTUAL BACKGROUND
1. Petitioner no. 2 before this Court is the father of an alleged victim of a sexual assault, who was about six years of age at the relevant time. On his complaint, FIR No. 142/2013 came to be registered for offences under Sections 307 and 376 of the Indian Penal Code, 1860 [hereafter ‗IPC‘] at Police Station Badarpur, South East District, Delhi. The said case was tried by the learned Juvenile Justice Board–II, Delhi Gate, as the accused was a juvenile in conflict with law. Vide order dated 19.02.2015, the learned JJ Board–II acquitted the juvenile-accused.
2. Petitioner no. 1 is a society, which claims to have been authorised to support Petitioner No. 2, the father of the victim, and to institute the present proceedings on his behalf.
3. The principal grievance raised before this Court is that neither the victim nor her father (petitioner no. 2) was supplied a copy of the order dated 19.02.2015 passed by the learned Juvenile Justice Board– II, despite repeated efforts. In addition to the said grievance, the petition also raises broader concerns relating to the functioning of the criminal justice system in cases involving sexual assault, particularly those concerning child victims.
4. On the basis of these grievances, the petitioners have sought the following reliefs: ―Issue a writ of mandamus and or a writ in the nature of mandamus or any other appropriate writ, direction or order to respondents,to pass appropriate order: a. To PROVIDE immediately copy of order and judgement dt 24.02.2015 passed by the JJB II, Delhi Gate in FIR NO. 142/13 PS Badapur, including copy of the inquiry record of the case to the Pet. No. 2. b. To APPOINT immediately female member on JJB II, c. To FORMULATE standards and efficacious mechanisms for delivery of services for sexual assault victim/survivors including the right to receive counseling support; right to be legally represented when testifying as witnesses at inquiry; the right to receive information concerning the preinquiry and inquiry process, and outcome; right to receive protection, the right to compensation. d. To Respondent No. 2 to FORMULATE MECHANISM whereby copy of FIR is received without delay from Police on registration of crimes of sexual assault and immediately on it‘s own motion Respondent No 2 para legal staff/volunteers handed over case to follow up, the disbursement of compensation not to take more than 30 days; and monitoring of cases of sexual assault of/by children handled by Respondent No. 2 appointed advocates, their periodic sensitisation, rotation etc. e. To Respondent No. 1 to ADOPT AGE APPROPRIATE MEASURES in the field of education to modify the social and cultural patterns of conduct of men and women. f. To HARMONISE ACTS aimed at providing better protection against sexual violence, specially the girl child, including a separate Bill of Rights as recommended by the Justice Varma Committee as affirmative action policy/ legislation.‖
5. At the outset, it is relevant to note that the present petition was listed for the first time on 21.04.2015, when notice was issued to the respondents, except in respect of prayer clause (b). This Court had observed that Section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2000 mandates that the Juvenile Justice Board shall consist of two social workers, of whom at least one must be a woman. A similar statutory requirement is contained in Section 4 of the Juvenile Justice (Care and Protection of Children) Act, 2015. In view thereof, the Predecessor Bench had directed the State Government to ensure compliance with the statutory mandate, if not already complied with.
6. Upon examination of the record, this Court notes that vide notification dated 19.05.2005, a female member had already been appointed to the learned JJ Board–II. Consequently, prayer (b) does not survive for consideration and has become infructuous.
CONSIDERATION OF THE PRAYERS MADE BEFORE THIS COURT Prayer (a): Supply of Copy of the Order of Acquittal Passed by the JJ Board
7. The first prayer i.e. prayer (a) pressed before this Court seeks a direction for supply of a copy of the order and judgment dated 19.02.2015 passed by the learned JJ Board–II. It has been urged that an application seeking the said order was moved by the father of the victim before the learned Juvenile Justice Board; however, the said request was declined vide order dated 24.02.2015.
8. Insofar as this prayer is concerned, this Court‘s attention has been drawn by the State, to Section 21 of the JJ Act, 2000 which places an embargo on the publication or disclosure of any report of inquiry which may reveal the name, address, or any other particulars leading to the identification of a juvenile in conflict with law. The provision is intended to protect the privacy, dignity, and future prospects of the juvenile and has to be strictly construed. Further, Section 52 of the JJ Act, 2000 provides for a right of appeal to the Court of Sessions to any ―person aggrieved‖ by an order of a competent authority under the Act; however, the statute expressly bars an appeal against an order of acquittal passed by the Juvenile Justice Board. In this regard, the decision of the Coordinate Bench of this Court in X Minor through Father Natural Guardian v. State & Ors.: 2012 SCC OnLine Del 2143, wherein it was, inter alia, held as under: ―13. …A perusal of Section 52 of the JJ Act shows that any person aggrieved by an order made by a competent authority under the JJ Act can prefer an appeal to the Court of Session within 30 days. However, no such appeal shall lie from an order of acquittal made by the Board in respect of a juvenile alleged to have committed an offence. Thereby meaning that except in the case of an order of acquittal, an appeal by any aggrieved person would lie before a Court of Sessions. Learned counsel for Respondent No. 2 has strenuously contended that the word ‗aggrieved person‘ in Section 52 would mean a ―juvenile in conflict with law‖ who has been found to have committed an offence by the Board and no other person. Such a restrictive meaning to the words ―aggrieved person‖ cannot be given. If the Legislature had so intended, it would have then used the words ―juvenile in conflict with law‖ and not ―any person aggrieved‖. However, at the same time it may be noted that the right of appeal is limited as no appeal against an acquittal lies. Thus, the other orders on which the victim or the State may have the grievance like an order declaring a person juvenile, the aggrieved person would be entitled to copy of the order for challenge before the Superior Court. ***
16. Applying the principles enumerated above to the facts of the present case, it may be noted that the grievance of the Petitioner in the present case is that to the best of her knowledge Respondent No. 2, though was held to have committed the alleged offence yet has been directed to remain in the special home for the period undergone i.e. a period of two to three months. As noted above, the concept of proportionality of sentence is unknown to the JJ Act. In view of the fact that there is no indefeasible right of the Petitioner to file an appeal on the proportionality of sentence, I find no ground to direct the Juvenile Justice Board to give a copy of the order dated 8th July, 2011 to the Petitioner herein.‖
9. Therefore, it is manifest from the above that where no right of appeal exists in law, no corresponding enforceable right to seek a certified copy of the order for the purpose of challenge can be claimed, particularly when such disclosure may also infringe the confidentiality mandate under Section 21 of the JJ Act, 2000. In the present case, the juvenile-accused stood acquitted by the learned JJ Board–II vide order dated 19.02.2015. In view of the decision of this Court in X Minor through Father Natural Guardian v. State & Ors. (supra), and in view of the fact that the victim or her father does not possess a right to challenge the order of acquittal, the refusal by the learned JJ Board-II vide order dated 24.02.2015, to provide a copy of the order of acquittal to the petitioner no. 2, therefore, cannot be faulted. Accordingly, prayer (a) of the present petition is unmerited and is hereby declined.
10. Prayers (c), (d), (e) and (f) collectively seek directions for formulation of institutional mechanisms for delivery of services to victims of sexual assault, including counselling and legal support; timely supply of copies of FIRs; expeditious disbursement of compensation; monitoring of cases by statutory authorities; adoption of age-appropriate educational measures to alter social and cultural patterns; and harmonisation of statutes aimed at protection against sexual violence, etc.
11. At this juncture, it is required to be noted that several of the concerns articulated by the petitioners have already been the subject matter of judicial decisions in the past. Prayer (c): Mechanism for Grant and Disbursement of Compensation to Victims of Sexual Assault
12. With regard to prayer (c), insofar as it seeks formulation of an efficacious mechanism for grant and disbursement of compensation to victims of sexual assault, this Court notes that a detailed statutory framework is already in existence. The Delhi Victims Compensation Scheme, initially notified in 2011, was subsequently modified in 2015 and thereafter comprehensively updated in 2018. The Delhi Victims Compensation Scheme, 2018, read with the Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes, 2018, lays down the procedure, eligibility, timelines, and quantum for grant of interim as well as final compensation.
13. The Hon‘ble Supreme Court, in Nipun Saxena v. Union of India: W.P. (C) No. 565/2012, has also extensively monitored and overseen the formulation and implementation of the said compensation schemes, pursuant to which the National Legal Services Authority (NALSA) had framed the Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes, which has been duly adopted by the State in the year 2018.
14. In view of the existence of a comprehensive statutory and policy framework governing victim compensation, and in the absence of any specific challenge to its implementation in the present case, this Court finds no occasion to issue any further directions in this regard. Prayer (d): Mechanism for Prompt Intimation to DSLSA and Provision of Victim Support Services
15. Insofar as prayer (d), seeking formulation of a mechanism whereby the Delhi State Legal Services Authority (DSLSA) is promptly informed by the police upon registration of an FIR in cases of sexual assault, is concerned, this issue is no longer res integra. Division Bench of this Court in Khem Chand v. State (NCT of Delhi): 2008 SCC OnLine Del 1611, has already issued directions to ensure immediate institutional support to victims of rape and sexual abuse at the very inception of the criminal process.
16. In the said decision, the Division Bench, after noting the need to minimise trauma to victims and to ensure their rehabilitation and reintegration, directed, inter alia, that the concerned SHO shall inform the DSLSA immediately upon commission of the offence of rape, whereafter the DSLSA shall depute a Social Worker/Para-Legal Worker to establish contact with the victim and her family within a stipulated time. The directions further mandate psychological counselling, legal assistance, educational continuity, and supervision by trained counsellors/psychologists. These directions are set out below: ―130. From time to time directions and observations setting out the measures to be taken to minimise the rigours of the trial for victims of rape and sexual abuse have been given in a number of judicial pronouncements. These directions have varied from avoidance of eye contact with the accused, provision of a screen, control of offensive, vexatious and obtrusive questions in cross-examination of the victim etc. These are intended to reduce and minimise the trauma of the victim of the offence and rigour of the trial and to prevent the erosion and loss of self confidence of the victim. There is a dire need for effective measures to be taken from the initial stage of commission of offence itself to ensure adjustment and rehabilitation, healthy and normal growth of the victim as member of the community. For achieving this, it is necessary to sensitize all those who are involved in the investigation, prosecution and trial of the offence and the role each one of them can play to mitigate the rigour of the trial and prevent the erosion and loss of confidence of the victim. Towards this end, following directions are being given:—
(i) The concerned S.H.O. shall inform the Delhi Legal
Services Authority immediately of the commission of the offence of rape. The D.L.S.A. shall depute a Social Worker/Para Legal Worker to establish contact latest within a week of the commission of offence with the victim and her family. The Social Worker/Para Legal Worker shall work towards gaining the confidence of the victim and provide necessary moral and legal support and advice as may be required to face the ordeal. The Social/Para Legal Worker shall operate under the overall guidance and supervision of the Child Counsellor/Psychologist nominated by the Delhi Legal Services Authority. The Child Counsellor/ Psychologist shall personally step in and give assistance to the Social/Para Legal Worker or herself handle the case, wherever required, to ensure adjustment and rehabilitation of the victim. The Child Counsellor/Psychologist will also ensure that education of the victim is not disrupted and normal life is restored as soon as possible. A report would be submitted to the Delhi Legal Services Authority in this regard by the Child Counsellor/Psychologist……‖
17. The aforesaid directions continue to hold the field and are binding on all authorities concerned. In view thereof, the prayer seeking formulation of any other fresh or parallel mechanism in this regard does not warrant any further directions from this Court. Prayers (e) and (f): Policy and Legislative Measures Sought by the Petitioners
18. Prayers (e) and (f) seek directions to the State to adopt ageappropriate educational measures to modify social and cultural patterns of conduct, and to harmonise statutes aimed at protection against sexual violence, including enactment of a separate Bill of Rights as recommended by the Justice Verma Committee.
19. These prayers are clearly in the nature of broad public interest and policy formulation, traversing into the legislative and executive domain. The reliefs sought are not confined to the facts of the present case or the enforcement of any existing statutory duty, but instead seek sweeping directions for social reform and legislative action. Such prayers cannot be entertained or granted in the present writ petition, which is not framed or maintainable as a public interest litigation.
20. For the aforesaid reasons, this Court finds that prayers (c) and
(d) are already adequately addressed by binding judicial precedents and existing statutory schemes, and therefore do not call for any further directions. Prayers (e) and (f), being in the nature of public interest and policy formulation, are beyond the scope of the present proceedings.
21. Accordingly, all the prayers i.e. (a), (b), (c), (d), (e) and (f) are declined.
ISSUE OF AVAILABILITY OF VULNERABLE WITNESS DEPOSITION CENTRES BEFORE JUVENILE JUSTICE BOARDS Concern Raised before this Court
22. Be that as it may, during the course of arguments addressed before this Court on 02.05.2024, an issue of significance was flagged which required independent consideration. It was pointed out that, unlike regular criminal courts, the learned JJ Boards did not have dedicated vulnerable witness rooms for minor victims of sexual assault. In view of the nature of the concern raised, this Court deemed it appropriate to seek clarity and accordingly, a reply was called for from the Delhi High Court Legal Services Committee (DHCLSC), and the learned Registrar General of this Court was directed to submit a detailed report regarding the protocol followed for examination of child victims before the JJ Boards. The present petition thereafter continued to be heard, and replies were sought, confined to this limited issue.
23. This issue is of significance for the reason that there can be no distinction, in law or in principle, between victims of sexual assault who approach and depose before criminal courts situated in the district judiciary and those who seek justice before the JJ Boards. The forum before which a victim appears is determined by the status of the accused as a juvenile in conflict with law, a factor entirely beyond the control of the victim. The trauma, vulnerability, and need for protection of a child victim of sexual assault remains the same, irrespective of whether the proceedings are conducted before a Magisterial/Sessions Court or a JJ Board. Any difference in providing infrastructural safeguards or procedural sensitivity would, therefore, have a direct bearing on the victim‘s right to dignity, privacy, and fair participation in the justice delivery process.
24. Before proceeding further and considering the replies received by this Court from the learned Registrar General and DHCSLC, at this stage, it is also relevant to note that the present petition was instituted in the year 2015, at a time when the JJ Act 2015 had not yet come into force. At that point in time, the concept of Vulnerable Witness Deposition Centres was not formally recognised or institutionalised. Subsequently, pursuant to directions issued by the Hon‘ble Supreme Court in a series of cases, comprehensive guidelines governing the establishment and functioning of Vulnerable Witness Deposition Centres were developed and implemented.
25. In this regard, it is apposite to note that in State of Maharashtra v. Bandu: (2018) 11 SCC 163, the Hon‘ble Supreme Court had approved the Guidelines for Recording Evidence of Vulnerable Witnesses in Criminal Matters implemented by this Court in 2017, with a direction to all High Courts to establish Vulnerable Witness Deposition Centres within their jurisdictions. In Smruti Tukaram Badade v. State of Maharashtra: (2022) 18 SCC 24, the Hon‘ble Supreme Court constituted a Committee to devise an all- India framework for training and infrastructure of Vulnerable Witness Deposition Centres and expanded the concept of a ―vulnerable witness‖. By order dated 08.04.2022 in the same case, the Hon‘ble Supreme Court directed that Vulnerable Witness Deposition Centres be made available across jurisdictions, including Juvenile Justice Boards and Children‘s Courts. This framework has since been reinforced by way of the ‗Guidelines of the High Court of Delhi for Recording of Evidence of Vulnerable Witnesses, 2024‘. Reports Received from the Registrar General and DHCLSC
26. In light of the above jurisprudential evolution and the clear mandate of the Hon‘ble Supreme Court extending the use of Vulnerable Witness Deposition Centres to proceedings before the JJ Boards, the concern expressed before this Court in the year 2024 required verification, as it was specifically brought to the notice of this Court that Vulnerable Witness Deposition Centres were not available in JJ Boards in Delhi. Given the sensitivity of the issue and its direct bearing on the rights and dignity of child victims of sexual offences, this Court considered it necessary to call for reports. However, the reports subsequently received make it evident that Vulnerable Witness Deposition Centres have, in fact, been established and are functional in Juvenile Justice Boards in Delhi, in compliance with the directions issued by the Hon‘ble Supreme Court.
27. Pursuant to the directions issued by this Court, detailed replies were received from the learned Registrar General of this Court as well as the Secretary, DHCLSC. The responses addressed two broad aspects: first, the protocol followed for examination of vulnerable witnesses, including child victims, before the JJ Boards; and second, the availability of vulnerable witness rooms, also referred to as Vulnerable Witness Deposition Centres, in premises where JJ Boards function.
28. The then learned Registrar General of this Court, in his report dated 17.05.2024, submitted as under: ―4. It is submitted that as per the reports submitted by the different Juvenile Justice Boards, the privacy and identity of a vulnerable victim is maintained by recording his/her statement 'In Camera' in a Vulnerable Witness Deposition Centre (VWDC) in the presence of guardian of the victim, RCC Advocate and support person/required judicial ministerial staff. It is further submitted that while the guidelines issued by this Hon'ble Court regarding recording of evidence of vulnerable witnesses in criminal matters are being followed by the Boards, the other witnesses, who are not vulnerable, are examined as per the practice directions followed in the Magisterial and Sessions Courts.‖
29. For the sake of illustration, the reply furnished by one of the JJ Boards, i.e. JJ Board–I, Kingsway Camp, Delhi, is reproduced hereinbelow: ― In this regard, it is submitted that a Vulnerable Witness Deposition Centre (VWDC) is available at Sewa Kutir Complex, Kingsway Camp, Delhi for the common use of JJB-I & JJB-III. In order to maintain and protect a vulnerable victim's privacy and identity,the victim's statement is recorded In Camera in a VWDC (Vulnerable Witness Deposition Centre) in the presence of the guardian of the victim, RCC Advocate and support person (if available). The VWDC has a separate area for the victim, wherein there is a deposition room with video conferencing facility, one waiting room, one counselling room, one washroom and a pantry. Further, the VWDC has a separate room with video-conferencing facility for the Child in Conflict with Law, Counsel for the CCL, Stenographer, Public Prosecutor and the Principal Magistrate. There are two separate rooms for the victim and the CCL with separate entry/exit doors to avoid face-to-face contact between the CCL and the victim. Both the rooms have their own waiting rooms separate from each other as well as separate from the common waiting area for the Board. The Hon'ble Delhi High Court guidelines for recording of evidence of vulnerable witnesses in criminal matters are being followed by the Board. The examination of other witnesses (who are not vulnerable witnesses) is being done as per the practice directions followed in the Magisterial and Sessions Courts of Delhi. Further, a dedicated support person for vulnerable witnesses is not assigned for JJB-I, therefore, the RCC lawyer is being directed to act as a support person for the vulnerable witnesses.‖
30. In relation to the availability of Vulnerable Witness Deposition Centres, a reply was received from the then learned Secretary, DHCLSC, who stated as under: ―1. It is respectfully submitted that pursuant to order dated 02.05.2024, passed by this Hon'ble Court, the Secretary, DHCLSC issued a letter to all the Ld Principal Magistrates, Juvenile Justice Boards-I, II, III, IV, V, VI, VII, seeking information qua existence and functioning of Vulnerable Witness Deposition Centre (VWDC) in their respective Juvenile Justice Boards. (A copy of letter is at Annexure A).
2. In response thereto, all the Juvenile Justice Boards furnished their replies. [The copies of replies are at Annexure B(colly)]. Thus, it is apparent that as per information received, all the Juvenile Justice Boards have a VWDC room for recording deposition of a victim of POCSO case.‖
31. It is relevant to note that the Secretary, DHCLSC had called for replies from each JJ Board, on the following four questions: ―1) Whether there is VWDC (Vulnerable Witness Deposition Centre) room in the JJB for recording deposition of victim of a POCSO case.
2) Whether there is any provision of waiting room and refreshment akin to VWDC setup in Courts.
3) Whether travel expenses are being reimbursed to the victim and one escort accompanying the child, in terms of Section 91 (2) of The Juvenile Justice (Care and Protection of Children) Act,2015.
4) Whether a support person is provided to the victim?‖
32. This Court has also examined the individual replies submitted by all the JJ Boards. For the sake of brevity, the contents of the said replies are not being reproduced herein.
33. What clearly emerges from the replies placed on record by the learned Registrar General of this Court and the Secretary, DHCLSC is that a structured and sensitive protocol is presently being followed by the JJ Boards in Delhi while recording the evidence of vulnerable witnesses, including child victims of sexual offences. The statements of such victims are recorded in camera in designated Vulnerable Witness Deposition Centres, to ensure protection of their privacy and identity. The presence of a guardian, RCC advocate and support person is secured, and adequate safeguards are in place to prevent any direct or indirect contact between the victim and the child in conflict with law. The infrastructure of the Vulnerable Witness Deposition Centres, including separate entry and exit points, waiting areas, counselling spaces and video-conferencing facilities, also reflects adherence to the guidelines issued by this Court and the directions of the Hon‘ble Supreme Court. It is also evident that such centres are available and functional across all JJ Boards in Delhi, which addresses the concern that was raised before this Court during the course of arguments.
34. In view of the above, the grievance raised on behalf of the petitioners with regard to the non-availability of Vulnerable Witness Deposition Centres in the JJ Boards does not survive for further consideration.
35. In case the petitioner notices any infrastructural gaps or other related issues in the JJ Boards, it may file an appropriate representation or petition in that regard, if so advised, in accordance with law before the appropriate Bench.
36. The present petition, alongwith pending application, is disposed of with above directions.
37. The judgment be uploaded on the website forthwith. DR.
SWARANA KANTA SHARMA, J DECEMBER 15, 2025 T.D./T.S.