# Siddhant @ Aashu v. State of U.P. & Ors. 1058 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 9 ILRA 1057
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-13
- **Case number:** Criminal Misc. 2nd Bail Application No. 36536 of 2023
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siddhant-aashu-v-state-of-u-p-ors-1058-indian-law-reports-allahabad-series-50726
- **Pages:** 18

## Headnote

Criminal Law-Code of Criminal Procedure,
1973-Section 439--- Witnesses have been
declared hostile at the instance of the
prosecution--- Inordinate delay in concluding
trial had has led to virtually an indefinite
imprisonment of the applicant without there
being any credible evidence to implicate him in
the offence and violates the rights of the
applicant to speedy trial---Applicant claims
congruency in role and seeks parity in relief
granted to the co-accused who has been
enlarged on bail by this Court. (Para 63 & 64)

Bail application allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,845 of 56,878. This is a partial read: ask again with offset=39845 for what follows._

9 All. Siddhant @ Aashu Vs. State of U.P. & Ors.
1057

(1) When any such offence as is
described in section 175, section 178, section
179, section 180 or section 228 of the Indian
Penal Code (45 of 1860 ), is committed in the
view or presence of any Civil, Criminal or
Revenue Court, the Court may cause the
offender to be detained in custody and may,
at any time before the rising of the Court on
the same day, take cognizance of the offence
and, after giving the offender a reasonable
opportunity of showing cause why he should
not be punished under this section, sentence
the offender to fine not exceeding two
hundred rupees, and, in default of payment of
fine, to simple imprisonment for a term
which may extend to one month, unless such
fine be sooner paid.

(2) In every such case the Court shall
record the facts constituting the offence, with
the statement (if any) made by the offender,
as well as the finding and sentence. (3) If the
offence is under section 228 of the Indian
Penal Code (45 of 1860 ), the record shall
show the nature and stage of the judicial
proceeding in which the Court interrupted or
insulted was sitting, and the nature of the
interruption or insult.

349. Imprisonment or committal of
person refusing to answer or produce
document. If any witness or person called to
produce a document or thing before a
Criminal Court refuses to answer such
questions as are put to him or to produce any
document or thing in his possession or power
which the Court requires him to produce, and
does not, after a reasonable opportunity has
been, given, to him so to do, offer any
reasonable excuse for such refusal, such
Court may, for reasons to be recorded in
writing,
sentence
him
to
simple
imprisonment, or by warrant under the hand
of the Presiding Magistrate or Judge commit
him to the custody of an officer of the Court
for any term not exceeding seven days, unless
in the meantime, such person consents to be
examined and to answer, or to produce the
document or thing and in the event of his
persisting in his refusal, he may be dealt with
according to the provisions of section 345 or
section 346.

350.
Summary
procedure
for
punishment for non- attendance by a
witness in obedience to summons.

(1) If any witness being summoned to
appear before a Criminal Court is legally
bound to appear at a certain place and time in
obedience to the summons and without just
excuse neglects or refuses to attend at that
place or time or departs from the place where
he has to attend before the time at which it is
lawful for him to depart, and the Court before
which the witness is to appear is satisfied that
it is expedient in the interests of justice that
such a witness should be tried summarily, the
Court may take cognizance of the offence
and after giving the offender an opportunity
of showing cause why he should not be
punished under this section, sentence him to
fine not exceeding one hundred rupees.

(2) In every such case the Court shall
follow, as nearly as may be practicable, the
procedure prescribed for summary trials.
----------
(2023) 9 ILRA 1057
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Criminal Misc. 2nd Bail Application No. 36536 of
2023

Siddhant @ Aashu ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Sri Atmaram Nadiwal, Sri Dinesh Kumar
Yadav

Counsel for the Opposite Parties:
G.A.

Criminal Law-Code of Criminal Procedure,
1973-Section 439--- Witnesses have been
declared hostile at the instance of the
prosecution--- Inordinate delay in concluding
trial had has led to virtually an indefinite
imprisonment of the applicant without there
being any credible evidence to implicate him in
the offence and violates the rights of the
applicant to speedy trial---Applicant claims
congruency in role and seeks parity in relief
granted to the co-accused who has been
enlarged on bail by this Court. (Para 63 & 64)

Bail application allowed. (E-15)

List of Cases cited:

1. Junaid Vs St. of U.P. & anr.2021 (6) ADJ 511

2. Barun Chandra Thakur Vs Master Bholu &
anr.2022 SCC OnLine SC 870

(Delivered by Hon'ble Ajay Bhanot, J.)

1. The judgement is being structured
in the following conceptual framework to
facilitate the discussion:

I
Introduction
II
Submissions of learned counsel for both the parties
on CWC report.
III
Statutory Schemes:

1.

Relevant provisions
2.
Issues arising for consideration:
A.
Procedure
regarding care &
protection
of
child
B.
Conditions
precedent
for
participation
of
CWC
with
reference to Rule
4
of
POCSO
Rules, 2020
C.
Enquiry by the
CWC
D.
Agencies
assisting
the
CWC
E.
Evaluation
of
mental health of
the child victim
by CWC
F.
CWC reports and
process
of
the
courts
IV

Conclusions and Directions
V

Order in bail application
VI

Appendix

I. Introduction:

2. The case at hand also requires
consideration of the role of Child Welfare
Committee1 report in ensuring a just
hearing to the victim in bail proceedings in
offences under the Protection of Children
From Sexual Offences Act, 20122. The
POCSO Act, 2012 read with Protection of
Children from Sexual Offences Rules,
20203 create a composite scheme to serve
equal justice to victims, and the CWC
report has a direct bearing on fair
administration of bail jurisdiction and the
trial process.

3. The prosecution case discloses that
after the victim was abducted, the accused
were chased and intercepted by the
villagers. The F.I.R. was got lodged
promptly. The accused were arrested at the
9 All. Siddhant @ Aashu Vs. State of U.P. & Ors.
1059
spot and the victim too was recovered.
Medical report was drawn up on the same
day. The statements of the victim under
Sections 161 Cr.P.C. and 164 Cr.P.C.,
accounts of the witnesses as well as
medical report fully corroborated the
prosecution story of abduction and rape.
However subsequently the victim turned
hostile in the trial. In these circumstances
the implementation of the POCSO Act,
2012 and the role of the CWC reports in
securing justice to child victims of sexual
offences need to be examined.

4. The CWC report available with the
learned AGA does not depict examination
of socio-economic circumstances of the
victim and of the accused persons. The
appointment of the support person in this
case was not preceded by requisite
enquiries and made in a mechanical
manner. Support person did not send any
report regarding the victim's condition to
the CWC at any stage. The mental
condition of the victim after the sexual
assault was not adverted to in the report.
These shortcomings had far reaching
consequences on the trial. Protection and
rehabilitation needs of the child victim in
this case were absent in the report.

5. In summation the CWC report
neglected
various
relevant
aspects
regarding the victim's condition and is not
in consonance with the statute.

6. This Court is finding that CWC
reports are often deficient and not in
conformity with the statutory parameters
laid down in Rule 4 of the POCSO Rules,
2020. This creates impediments in fair
administration of bail jurisdiction in
POCSO Act offences and in dispensation of
justice to child victims of sexual offences.

II. Submissions of learned counsel
for both the parties on CWC report:

7. Shri Atmaram Nadiwal, learned
counsel and Shri Dinesh Kumar Yadav,
learned counsel for the applicant has made
these submissions:

I.
The
applicant
cannot
be
penalized for the failure of the Child
Welfare Committee.

II. CWC report has no bearing on
the bail application.

8. Shri Paritosh Kumar Malviya,
learned AGA-I; Shri Rishi Chaddha,
learned AGA and Ms. Sujata Chaudhary,
learned AGA for the State made the
following submissions:

I. CWC report is an indispensable
feature of the POCSO Act and assists in
securing justice to the victim.

II. CWC report is liable to be
examined by the court while hearing bail in
light of judgement rendered by this Court
in Junaid Vs State of U.P. and another4.

III. CWC report was not drawn in
adherence to POCSO Act and Rules and
has resulted in a miscarriage of justice.

III. Statutory Schemes :

III (1). Relevant Provisions

9. Grant of bails in offences under the
POCSO Act, 2012 are regulated by Section
439 of the Code of Criminal Procedure,
19735 as well as the provisions of the
POCSO Act, 2012 read with the POCSO
Rules, 2020.

10. A distinguishable feature of the
said POCSO Act, 2012 read with POCSO
Rules, 2020 is that the statutory right of
hearing at the bail application of the
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
accused is vested in the victim. The
enactment marks shift from earlier tenets of
criminal jurisprudence which gave a
weaker right of hearing to a victim in
criminal matters prosecuted by the State.
Child victims of POCSO Act, 2012
offences constitute a separate and well
defined
class.
The
legislature
has
acknowledged their vulnerabilities of this
class, and the scheme of enactment
squarely
addresses
their
plight.
The
protective and ameliorative regime under
the POCSO Act, 2012 read with POCSO
Rules, 2020, is initiated at the pre-trial
stage and extends through the trial process.

11. This Court in Junaid Vs State of
U.P. and another6 while examining the
functions of CWC in the context of bail
applications held as under:

"B. Functions of CWC:-

I.
Receive
information
and
documents from the police and take
appropriate action thereupon as provided in
the POCSO Act, 2012 read with POCSO
Rules, 2020.

II. To apprise the child of its
entitlements under the POCSO Act, 2012
read with POCSO Rules, 2020. Identify the
person who would be best suited to protect
the interests of the child and receive notices
of the legal proceedings on its behalf from
amongst the following persons: child's
parents/guardian/any other person in whom
the child has trust and confidence or
appoint a support person for the child
whenever required.

III.
To
prepare
reports
and
coordinate with the police and various
government
agencies
for
providing
information and services entitled to the child.

IV. To coordinate with the DLSA
and HCLSC to provide free legal aid in
appropriate cases to the child at the District
Court and High Court respectively.

V. Disclose to the High Court
as well as the trial court the status of
entitled
information
and
services
including free legal aid provided to the
child and submit relevant reports when
the bail application is placed before the
Court."

12. The POCSO Act, 2012 read with
POCSO
Rules,
2020
contemplates
a
significant role for the Child Welfare
Committee in securing the rights and interests
of child victims of sexual abuse.

13. The police authorities while
investigating an offence upon receiving
information which satisfies the prerequisites
of Section 19(1) of the POCSO Act, 2012
shall produce before the Child Welfare
Committee in the manner stated in the
provision.
The
provision
is
extracted
hereinunder:

"19. Reporting of offences:-
(1) Notwithstanding anything contained
in the Code of Criminal Procedure, 1973
(2 of 1974) any person (including the
child), who has apprehension that an
offence under this Act is likely to be
committed or has knowledge that such
an offence has been committed, he shall
provide such information to,--

(a) the Special Juvenile Police
Unit; or

(b) the local police.

(2) Every report given under subsection (1) shall be--

(a) ascribed an entry number and
recorded in writing;

(b) be read over to the informant;

(c) shall be entered in a book to be
kept by the Police Unit."
9 All. Siddhant @ Aashu Vs. State of U.P. & Ors.
1061

14. The monitoring framework is
spelt out in Rule 12 of the POCSO Rules,
2020i (see Appendix I).

15. Appointment of a 'support person'
is also a critical feature in the protective
scheme of the POCSO Act, 2012 read with
POCSO Rules, 2020:

"2 Definition:

(f) "support person" means a
person assigned by the Child Welfare
Committee, in accordance with sub-rule (7)
of rule 4, to render assistance to the child
through the process of investigation and
trial, or any other person assisting the child
in the pre-trial or trial process in respect of
an offence under the Act."

16. The importance of engaging with
experts of different fields and taking their
assistance for the benefit of the child are
mandated in Section 39 of the POCSO Act,
2012. The provision states as follows:

"39. Guidelines for child to take
assistance of experts, etc. - Subject to
such rules as may be made in this behalf:
the
State
Government
shall
prepare
guidelines for use of non-governmental
organisations, professionals and experts or
persons having knowledge of psychology,
social work, physical health, mental health
and child development to be associated
with the pre-trial and trial stage to assist the
child."

17. The provisions of POCSO Act,
2012
have
to
be
implemented
in
conjunction with the provisions of the
Juvenile Justice (Care and Protection of
Children), Act, 20157. Section 2(14) of the
JJ Act, 2015 defines child in need of care
and protection. The provision has a wide
ambit and covers a children who has
suffered sexual abuse. The provision is
extracted hereinunder:

"2. Definition: -

(14) "child in need of care and
protection" means a child-

(iii) who resides with a person
(whether a guardian of the child or not) and
such person-

(a) has injured, exploited, abused
or neglected the child or has violated any
other law for the time being in force meant
for the protection of child; or

(b) has threatened to kill, injure,
exploit or abuse the child and there is a
reasonable likelihood of the threat being
carried out; or

(c) has killed, abused, neglected
or exploited some other child or children
and there is a reasonable likelihood of the
child in question being killed, abused,
exploited or neglected by that person; or

(v) who has a parent or guardian
and such parent or guardian is found to be
unfit or incapacitated, by the Committee or
the Board, to care for and protect the safety
and well-being of the child; or

(viii) who has been or is being or
is likely to be abused, tortured or exploited
for the purpose of sexual abuse or illegal
acts; or

(ix) who is found vulnerable and
is likely to be inducted into drug abuse or
trafficking; or

(x) who is being or is likely to be
abused for unconscionable gains; or

(xii) who is at imminent risk of
marriage before attaining the age of
marriage
and
whose
parents,
family
members, guardian and any other persons
are
likely
to
be
responsible
for
solemnisation of such marriage;"

18. Section 31 of the JJ Act, 2015,
nominates the person who may produce the
1062 INDIAN LAW REPORTS ALLAHABAD SERIES
child in need of care and protection before
the CWC. The provision is part of
Appendixii II.

19. The procedure before the CWC after
the child is produced is outlined in Rule 18 (1)
of the Juvenile Justice (Care and Protection of
Children) Model Rules, 20168. The provision
is part of Appendixiii III.

20. The procedure for enquiry which
is to be undertaken into the circumstances
of the child

21. The provisions for line of enquiry of
the CWC in the JJ Act, 2015 are more
comprehensive. However, there is no conflict
with the enquiry contemplated under Rule 4 of
the POCSO Rules, 2020. Both the provisions
have to be interpreted harmoniously in the best
interests of the child. The provisions of the JJ
Rules, 2016 and the POCSO Act, 2012 read
with POCSO Rules, 2020 insofar as they
relate to child victims of sexual offences have
to be construed as an integrated scheme to
achieve the common purpose which is the
welfare of the child victim.

III. Statutory Schemes :

III (2). Provisions & issues arising
for consideration:

22. Some aspects of the functioning
of CWCs and issues with respect of CWC
reports
which
arise
directly
for
consideration
in
the
facts
and
circumstances of this case are discussed in
this part of the narrative.

III (2) A. Procedure regarding care
and protection of child

23. The procedure regarding care and
protection of a child and the duties of the
police authorities, the CWC and other
agencies are delineated in Rule 4 of the
POCSO Rules, 2020. Rule 4(3) of the
POCSO Rules, 2020, nominates the SJPU
or the local police as the first responders
and requires them to take various actions
upon receipt of information in accordance
with the provisions of Section 19(1) of the
POCSO Act, 2012. The relevant provision
is extracted hereinunder:

"4. Procedure regarding care
and protection of child:-

(3) Where an SJPU or the local
police, as the case may be, receives
information
in
accordance
with
the
provisions contained under sub-section (1)
of section 19 of the Act in respect of an
offence that has been committed or
attempted or is likely to be committed, the
authority
concerned
shall,
where
applicable, --

(a) proceed to record and register
a First Information Report as per the
provisions of section 154 of the Code of
Criminal Procedure, 1973 (2 of 1974), and
furnish a copy thereof free of cost to the
person making such report, as per subsection (2) of section 154 of that Code;

(b)
where
the
child
needs
emergency medical care as described under
sub-section (5) of section 19 of the Act or
under these rules, arrange for the child to
access such care, in accordance with rule 6;

(c) take the child to the hospital
for the medical examination in accordance
with section 27 of the Act;

(d) ensure that the samples
collected for the purposes of the forensic
tests are sent to the forensic laboratory
immediately;

(e) inform the child and child's
parent or guardian or other person in whom
the child has trust and confidence of the
availability of support services including
9 All. Siddhant @ Aashu Vs. State of U.P. & Ors.
1063
counselling, and assist them in contacting
the persons who are responsible for
providing these services and relief;

(f) inform the child and child's
parent or guardian or other person in whom
the child has trust and confidence as to the
right of the child to legal advice and
counsel and the right to be represented by a
lawyer, in accordance with section 40 of
the Act."

III (2) B. Conditions precedent for
participation of CWC with reference to
Rule 4 of the POCSO Rules, 2020

24. The prerequisites which have to
be satisfied by the SJPU or the local police
prior to production of child before the
CWC for detailed assessment of the latter
are stated in Rule 4 (4) of the POCSO
Rules, 2020:

"4(4) Where the SJPU or the
local police receives information under
sub-section (1) of section 19 of the Act,
and has a reasonable apprehension that
the offence has been committed or
attempted or is likely to be committed by
a person living in the same or shared
household with the child, or the child is
living in a child care institution and is
without parental support, or the child
is found to be without any home and
parental support, the concerned SJPU, or
the local police shall produce the child
before the concerned Child Welfare
Committee (hereafter referred to as
"CWC") within 24 hours of receipt of
such report, together with reasons in
writing as to whether the child is in need
of care and protection under sub-section
(5) of section 19 of the Act, and with a
request for a detailed assessment by the
CWC."
(emphasis supplied)

25. The words "the child is found to
be without any home and parental support"
in Rule 4 (4) of the POCSO Rules, 2020,
denote that the legislative intent is to go
beyond the fact that the child is simply
living with their9 parents and stays in the
shelter of a temporary/permanent structure.
The provision casts a duty to examine the
status of the child in the family, the nature
of support and understanding which are
bestowed on the child by their parents. This
fact is particularly critical in view of
relegation of the girl child and children
with disabilities to an insignificant position
in many families on account of a skewed
value systems or oppressive social norms.

III (2) C. Enquiry by the CWC:

26. The role of the CWC commences
upon receipt of a report in Rule 4(3) of the
POCSO Rules, 2020. The CWC shall
thereafter
proceed
to
make
its
determination under Rule 4 (5) of the
POCSO Rules, 2020, in accordance with
the powers vested under Section 31 (1) of
the JJ Act, 2015. The relevant provisions
are extracted hereunder:

"4(5) Upon receipt of a report
under sub-rule (3), the concerned CWC
must proceed, in accordance with its
powers under sub-section (1) of section 31
of the Juvenile Justice Act, 2015 (2 of
2016), to make a determination within three
days, either on its own or with the
assistance of a social worker, as to whether
the child needs to be taken out of the
custody of child's family or shared
household and placed in a children's home
or a shelter home."

27. CWC is enjoined by law to create
a report after meeting the victim on various
aspects related to their10 conditions.
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
Parameters of the CWC report which also
define its purpose are provided in Rule 4(6)
of the POCSO Rules, 2020. The provisions
being germane to the controversy are
reproduced below for ease of reference:

"(6) In making determination
under sub-rule (4), the CWC shall take into
account
any
preference
or
opinion
expressed by the child on the matter,
together with the best interests of the child,
having
regard
to
the
following
considerations, namely: -

(i) the capacity of the parents, or
of either parent, or of any other person in
whom the child has trust and confidence, to
provide for the immediate care and
protection needs of the child, including
medical needs and counselling;
(emphasis supplied)

(ii) the need for the child to
remain in the care of parent's, family and
extended
family
and
to
maintain
a
connection with them;

(iii) the child's age and level of
maturity, gender, and social and economic
background;

(iv) disability of the child, if any;

(v) any chronic illness from
which a child may suffer;

(vi)
any
history
of
family
violence involving the child or a family
member of the child; and,

(vii) any other relevant factors
that may have a bearing on the best
interests of the child:

Provided that prior to making
such determination, an inquiry shall be
conducted in such a way that the child is
not unnecessarily exposed to injury or
inconvenience."

28. While enquiring into the "capacity
of the parents", the CWC under Rule 4(6)
of the POCSO Rules, 2020, will examine
the
ability
of
the
parents
to
give
unconditional support to the victim in the
hour of crisis, and to rally the family
behind the child to tide over the trauma.
The statutory mandate is furthered by
ascertaining the empathy shown by the
parents to the plight of the victim, and
responsive engagement with the child in
assisting them11 to overcome the ordeal.
The capacity of the parents is reflected in
the manner they facilitate the victim's
rehabilitation and confident re-entry into
the social mainstream. The enquiry should
factor in the strength of the parents to
withstand pressures and to insulate the
child from unhealthy influences during the
investigation/trial.

29. The "capacity of the parents"
signifies the need to determine the socioeconomic conditions and vulnerabilities of
the victim and her family in the facts and
circumstances of the case. These have to be
seen in light of the impact of the crime on
the child and the ability of the parents to
provide a conducive environment to the
child victim in their12 striving for justice
and search for closure with dignity.

III(2) D. Agencies assisting the
CWC

30. The CWC in drawing up its report
can seek the assistance of a social worker
and other expert agencies in light of Rule
4(5) of the POCSO Rules, 2020 (quoted
earlier). The conduct of the process by the
CWC should not be intrusive and has to
respect the privacy of the child and the
family.

31. Rules 4(8) to 4(12) of the POCSO
Rules, 2020, contemplate the appointment
of a suitable "support person" by the CWC.
The CWC after considering the relevant
9 All. Siddhant @ Aashu Vs. State of U.P. & Ors.
1065
facts and circumstances should appoint a
suitable support person to assist the child in
all possible manner through the process of
investigation and trial and also to obviate
the
possibility
of
the
victim
being
pressurized on any count. Information of
the support person shall be conveyed to
police authorities. The support person shall
be monitored by the CWC. The provision is
extracted hereinunder:

"(8) The CWC, on receiving a
report under sub-section (6) of section 19
of the Act or on the basis of its assessment
made under sub-rule (5), and with the
consent of the child and child's parent or
guardian or other person in whom the child
has trust and confidence, may provide a
support person to render assistance to the
child in all possible manner throughout the
process of investigation and trial, and shall
immediately inform the SJPU or Local

(9) The support person shall at all
times maintain the confidentiality of all
information pertaining to the child to which
he or she has access and shall keep the
child and child's parent or guardian or other
person in whom the child has trust and
confidence,
informed
regarding
the
proceedings of the case, including available
assistance,
judicial
procedures,
and
potential outcomes. The Support person
shall also inform the child of the role the
Support person may play in the judicial
process and ensure that any concerns that
the child may have, regarding child's safety
in relation to the accused and the manner in
which the Support person would like to
provide child's testimony, are conveyed to
the relevant authorities.

(10) Where a support person has
been provided to the child, the SJPU or the
local police shall, within 24 hours of
making such assignment, inform the
Special Court in writing.

(11) The services of the support
person may be terminated by the CWC
upon request by the child and child's parent
or guardian or person in whom the child
has trust and confidence, and the child
requesting the termination shall not be
required to assign any reason for such
request. The Special Court shall be given in
writing such information.

(12) The CWC shall also Seek
monthly reports from support person till the
completion of trial, with respect to
condition and care of child, including the
family situation focusing on the physical,
emotional and mental wellbeing, and
progress towards healing from trauma;
engage with medical care facilities, in
coordination with the support person, to
ensure
need-based
continued
medical
support
to
the
child,
including
psychological care and counseling; and
shall ensure resumption of education of the
child, or continued education of the child,
or shifting of the child to a new school, if
required."

III(2) E. Evaluation of mental health
of the child victim by CWC:

32. The scope of the enquiry by the
CWC after taking into account the
preference or opinion of the child in the
matter, together with the best interests of
the child are provided in Rule 4 (6) of the
POCSO Rules, 2020 (as quoted earlier).

33. The words employed in Rule 4
and Rule 4 (6)(vii) of the POCSO Rules,
2020 especially the phrase "best interests of
the child" reflect the wide ambit of the
CWC enquiry. Operationalizing the broad
terms of Rule 4(6)(vii) of the POCSO
Rules, 2020, is the key to achieving the
legislative object of the CWC. Rule
4(6)(vii) of the POCSO Rules, 2020 also
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
embraces an enquiry into the mental health
and psychological condition of a victim of
a POCSO Act offence.

34. Engaging with child victims of
sexual
offences
and
evaluating
their
conditions is a complex task. The process
requires
sensitive
engagement
and
professional handling of the victim by
experts in child psychology, mental health
and allied fields. In many instances CWC
members are not professional psychologists
or experts in mental health and behavioural
sciences, and often do not have a ready
access to the advice of the latter. Absence
of expert advice results in infirmities in
CWC reports which may inflict lasting
traumas
upon
victims,
impede
their
rehabilitation and even cheat the process of
justice. In these circumstances it is
mandatory for the CWC to work with
expert agencies to develop a scientific
framework for evaluating the mental
condition and needs of a child victims of
sexual abuse.

35. Paucity of trained psychologists
and mental health experts was noticed by
the National Institute of Mental Health &
Neurosciences, Bangalore13 in its report
published in August 2023 rendered in the
context of 'Juveniles in conflict with law.'

36. Creation of standardized lines of
enquiries and templates developed by
expert agencies like NIMHANS can supply
the deficiencies in the current system.
Standardized evaluation systems/enquiry
formats so drawn up by institutions like
NIMHANS can guide the CWC in
assessing the mental condition of a child
victim of a POCSO Act offence, and to
determine the process of rehabilitation of
the latter. The said standards of enquiry can
form the basis of the CWC reports.

37. Opinions of mental health
experts/psychologists in CWC reports is a
legal mandate which aid the courts to
determine the capacity of the child victim
to depose before the court and to sensitize
the
trial
proceedings.
Incorporating
opinions
of
mental
health
professionals/psychologists in the said
reports will also assist in the rehabilitation
of the victim by making a timely reference
to
mental
health
professionals
for
prolonged treatment if needed.

38. In a number of fields the
legislature has acknowledged the necessity
of interface of law and legal professionals
with other domains and domain experts.

39. At times the intellectual capital
created by the siloed process of courts is
inadequate for addressing complex legal issues
of moment. In such situations, the Courts have
not hesitated to draw from other fields of
knowledge or domains of specialization.
Interdisciplinary
engagement
garners
the
intellectual capital which is necessary to serve
justice in complex decision making processes
like those related to minor victims of sexual
offences. The concept of interdisciplinary
engagement has found legitimacy in the legal
process.
Inclusive
decision
making
is
noticeable in holdings of constitutional courts.
This paradigm shift in the process of law was
recognized by the Supreme Court in Barun
Chandra Thakur Vs. Master Bholu and
Another14.

40. The discussion will profit from the
holdings and the methodology adopted in
Barun Chandra Thakur (supra) which arose
out of proceedings under the Juvenile Justice
(Care and Protection of Children) Act, 2015.

41. The concept of interdisciplinary
engagement between the courts and experts
9 All. Siddhant @ Aashu Vs. State of U.P. & Ors.
1067
in the field of child psychology was
affirmed in Barun Chandra Thakur
(supra) by referencing and relying on
various
specialized
agencies
and
institutions like NIMHANS, Bangalore.

42. Barun Chandra Thakur (supra)
went on to notice specialized nature of the
field
of
child
psychology
and
the
importance of integrating report of such
experts in the preliminary assessment
mandated by Section 15 of the JJ Act, 2015
by holding thus:

"75. It is to be noted that child
psychology is a specialised branch of
development psychology, its genesis is
based on the premise that children and
adults have a different thought process. The
individualised assessment of adolescent
mental capacity and ability to understand
the consequences of the offence is one of
the most crucial determinants of the
preliminary
assessment
mandated
by
Section 15 of the Act, 2015. The report of
the preliminary assessment decides the
germane question of transferring the case
of a child between 16 to 18 years of age to
the Children's Court. This evaluation of
'mental capacity and ability to understand
the consequences' of the child in conflict
with law can, in no way, be relegated to the
status of a perfunctory and a routine task.
The process of taking a decision on which
the fate of the child in conflict with law
precariously rests, should not be taken
without
conducting
a
meticulous
psychological evaluation."

43. The interdisciplinary interface in the
judicial process was pioneered by Justice
Louis D. Brandeis. The engagement of courts
and the process of law with other domains of
knowledge has a long history. It is gaining
more acceptability in our country in recent
times. The courts have consistently called for
reports of environmental experts, scientists
and so on as and when the need has arisen to
secure the ends of justice.

III (2) F. CWC report & process of
the courts

44. Consideration of CWC reports
while deciding bail applications reflects the
new contours of law created by the POCSO
Act [also see Junaid (supra)].

45. CWC reports play a critical role in
the implementation of various protective
measures and other entitlements of victims
under the POCSO Act, 2012 read with
POCSO Rules, 2020.

46. The CWC report assists the courts
in evaluating the victim's condition and to
sensitize the process of law. The CWC report
also helps the court to determine whether the
victim has access to various protective and
rehabilitative measures under the POCSO
Act, 2012 read with POCSO Rules, 2020.
The courts are obligated to direct the
authorities to provide the benefits and
entitlements to child victims under the
POCSO Act, 2012 read with POCSO Rules,
2020, whenever shortcomings are observed.
The rights of the child victims are brought to
fruition in this manner.

47. Denial of statutory support
systems like counselling services, medical
care, support persons, and legal aid put the
victims
at
a
disadvantage
in
court
proceedings, impede their rehabilitation
and defeat the intent of the legislature.

48. CWC reports also enable courts to
oversee
the
functioning
of
various
government agencies and statutory bodies
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
charged with duties of implementing the
POCSO Act, 2012 read with POCSO
Rules, 2020.

49. Authorities upon whom the statute
imposes the duty to secure the rights of
victims under the POCSO Act, 2012 read
with POCSO Rules, 2020 are accountable
to courts where legal proceedings are
pending. This Court in Junaid (supra) held
thus:

"42....It has to be stated that the
said judgments of Delhi High Court and
Bombay High Court enrich legal debate,
and elevate the concerns of child rights to
the conscience of the court. The judgments
have sensitized the process of law and
ameliorated the plight of child victims by
acknowledging the responsibilities of the
courts and making the CWC, Legal
Services Authorities and police officials
accountable to courts in bail applications.
These recognizable principles of law can be
clearly distilled from Reena Jha (supra),
Miss G (supra), Arjun Kishanrao Malge
(supra)."

50. In summation the CWC reports
are pivotal to serve justice to child victims
of POCSO Act, 2012 offences in line with
the enactment. It is thus imperative that
CWC report should be placed before the
learned trial court as well as High Court for
consideration at the time of hearing of the
bail applications.

IV. Conclusions and Directions

51. Justice to child victims of POCSO
Act offences is not secured only by a
singular act of bringing an accused to face
the law. The POCSO Act scheme takes a
composite view of the menace of sexual
abuse of children, and justice under the
enactment has many facets. Justice to child
victims of sexual offences is truly served
when the protective script of the legislation
sensitizes the process of law, the alleviating
measures under the enactment heal the
trauma and efface the scars suffered by the
victim, and the rehabilitative scheme
contemplated by the legislature absorbs the
victim in the social mainstream with full
dignity.

52. In this wake, the following
directions are issued to the competent
authorities for execution:

I.
The
Judicial Training
&
Research
Institute,
Lucknow,
in
consultation with the State Government,
institutions
of
higher
legal
learning,
institutions
of
higher
research
and
education, institutions of special expertise
like NIMHANS, CWCs and other experts
in the field shall create a standardized
evaluation
system/line
of
enquiry
to
determine the mental condition of the
victims of offences under the POCSO Act,
2012 and to provide for their rehabilitation.
The said standardized lines of enquiry shall
provide the basis for the CWC to engage
with the child and to create a report
contemplated under Rule 4 of the POCSO
Rules, 2020.

II. State Government/Additional
Chief Secretary, Department of Women &
Child Development, Government of U.P.,
Lucknow shall render all support to the
JTRI in this undertaking.

III.
NIMHANS
shall
create
standardized evaluation enquiries/templates
for determining the mental health and
rehabilitation measures of a child victim of
sexual offences at the request of the JTRI.

IV. The JTRI shall similarly after
consultation with the State Government,
CWCs and other institutions of expertise
9 All. Siddhant @ Aashu Vs. State of U.P. & Ors.
1069
and higher learning create appropriate
standardized evaluation formats /templates
containing
all
other
relevant
facts
contemplated in Rule 4 of the POCSO
Rules, 2020 and Rule 19 of the JJ Rules,
2016, and other relevant provisions of law.

V. The CWCs shall use the above
standardized lines of enquiries/templates
for drawing up the CWC reports under the
POCSO Act, 2012 read with POCSO
Rules, 2020.

VI. The State Government is
directed to ensure that details of agencies
whose assistance can be taken by the CWC
under Section 39 of the POCSO Act, 2012
are duly provided to the CWCs.

VII. The JTRI shall after due
consultation with the State Government,
CWC and other stake holders prepare the
training modules for all CWC members in
the State. The training modules will be
implemented by the State Government.

VIII. The JTRI, Lucknow, shall
conclude the exercise within a period of
four months from the date of receipt of a
copy of this order.

53. Apart from the above standardized
evaluation system/templates so create, it
shall be open for the CWC to further
enquire into any other relevant issues in the
facts and circumstances of a case and as per
law.

54. This Court also notices that the
CWC have not been provided with the
necessary infrastructure and lack the
required wherewithal to discharge their
functions.
The
State
Government/Additional Chief Secretary,
Government of U.P. Lucknow, are directed
to
urgently
evaluate
and
upgrade
infrastructure available with the CWC to
facilitate discharge of their statutory
functions.

55. CWC while creating the report
has to be conscious of the scope and
limitations of its jurisdiction. The CWC
report is not part of the investigations made
by the police into the offences under
Section 173 Cr.P.C. The report cannot be
equated with the statements of the victim
made under the relevant provisions of the
Cr.P.C.

56. The CWC has to adhere to norms
of legal propriety and act within the bounds
of its jurisdiction in order to achieve its
statutory purpose. The CWC acting in
consonance with these tenets will sensitize
the statutory authorities and the process of
justice to the plight of victims and bring
their rights to fruition.

57.