What the Delhi HC held on recording of statement under the POCSO Act

The Delhi High Court has reiterated that a statement given by the victim of a sexual offence under the Protection of Children from Sexual Offences Act (POCSO Act), 2012 can be made only to a Police Officer or a Magistrate..The Court further held that counselling report or notes of a counsellor are confidential in nature and the same cannot be made a part of the chargesheet or otherwise on the trial court record under Section 173 of the Code of Criminal Procedure, 1973..The Bench of outgoing Acting Chief Justice Gita Mittal and Justice Anu Malhotra pronounced the judgment on August 4. It was passed on a reference made by Vishal Singh, Principal Magistrate, Juvenile Justice Board-I, Delhi seeking a clarification on the legality of a statement or version of a victim of a sexual offence recorded through an NGO or a private counsellor..The reference was made in the light of “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.”.The reference also sought for the High Court’s guidance on the issue of “multiple recording” of statements by a victim of a sexual offence insofar as it adversely affects the veracity of the prosecution..The Court noted that Section 26(3) of the POCSO Act only enables the Magistrate or the Police Officer to take assistance of the special educator or the persons named therein. It, however, does not in any manner empower an NGO or a counsellor to record the statement..Section 39 of the POCSO Act contemplates guidelines for the child to take assistance, and does not envisage any assistance to the police conducting the investigation or the Magistrate recording the statement..“The role of the persons detailed in Section 39 read with Section 26 of the POCSO Act is limited to their presence during recording of the statement of a child victim to ensure that the child victim is comfortable and strengthened while recording the incident to the police.”.It was also decreed that there is no prohibition on recording of multiple statements made by a victim to avoid the chance of contradictory versions..“A seemingly contradictory initial account is not a reason in itself to disbelieve the subsequent accounts by the victims. The multiple statements placed by the investigating agency should be carefully scrutinized by the Trial Courts in order to ensure that complete justice is done.”.Since neither the POCSO Act nor the Juvenile Justice Act defines the term “counsellors” anywhere, the Court also attempted to shed some light on the possible roles that a counsellor may fulfil..“Counsellors can be persons trained in child development and used to effectively communicate with the child; they can be persons familiar with the child’s communication (for instance, if the child has had prior contact with the police); and they can also fulfill the role of empowering the child by explaining the legal processes involved.”.Thus, the High Court answered the references in the following terms:.“Q. No. 1. What is the legality of recording a statement or version of the incident enumerated by a victim of sexual offence by an NGO or a private counsellor and filing of such statement or counselling report along with a chargesheet before the trial court under Section 173 of the Cr.P.C.?.(i) A statement under the POCSO Act can be made only to a police officer or a magistrate, and;.(ii) Provisions of the POCSO Act or the JJ Act do not contemplate any report to be made by a counsellor. It further makes it explicitly clear that counselling report/notes of the counsellor (as well as any person or expert recognized under the POCSO Act and Rules of 2012 and the JJ Act) are confidential in nature and the same cannot be made a part of the chargesheet or otherwise on the trial court record..Q.No. 2: What is the permissibility and legality of recording of multiple statements/versions of a victim of sexual assault, both women and children, by an investigating officer/judicial officer?.(i) The law allows the investigating agencies to record multiple statements of the victims. There is no prohibition on recording multiple statements by the police..(ii) A seemingly contradictory initial account is not a reason in itself to disbelieve the subsequent accounts by the victims. The multiple statements placed by the investigating agency should be carefully scrutinized by the Trial Courts in order to ensure that complete justice is done.”.Senior Advocate Dayan Krishnan and Advocate Trideep Pais were appointed amici curiae in the matter..Read judgement below: