# ALAKH ALOK SRIVASTAVA v. UNION OF INDIA & ORS

- **Citation:** [2018] 6 S.C.R. 972
- **Court:** Supreme Court of India
- **Decided:** 2018-05-01
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/alakh-alok-srivastava-v-union-of-india-ors-32832
- **Pages:** 11

## Headnote

Protection of Children from Sexual Offences Act, 2012
(POCSO) - Implementation of - Keeping in view the protection of
the children and the statutory scheme conceived under the POCSO
Act, directions issued so that the legislative intent and the purpose
are actually fructified at the ground level - Held: (i) The High Courts
to ensure that the cases registered under the POCSO Act are tried
and disposed of by the Special Courts and the presiding officers of
the said courts are sensitized in the matters of child protection and
psychological response; (ii) The Special Courts be established, if
not already done, and be assigned the responsibility to deal with
cases under the POCSO Act; (iii) Instructions be issued to the Special
Courts to fast track the cases by not granting unnecessary
adjournments and complete the trial in a time-bound manner or
within a specific time frame under the POCSO Act; (iv)The Chief
Justices of the High Courts to constitute a Committee of Judges to
regulate and monitor the progress of the trials under the POCSO
Act; (v) The Director General of Police or the officer of equivalent
rank of the States to constitute a Special Task Force which shall
ensure that the investigation is properly conducted and witnesses
are produced on the dates fixed before the trial courts; (vi) Adequate
steps to be taken by the High Courts to provide child friendly
atmosphere in the Special Courts keeping in view the provisions of
the POCSO Act so that the spirit of the Act is observed.
Protection of Children from Sexual Offences Act, 2012
(POCSO) - The Statement of Objects and reasons of the Act -
Discussed.
Eera through Dr. Manjula Krippendorf v. State (NCT
of Delhi) and another 2017 (8) SCALE 112;
[2018] 6 S.C.R. 972
972
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M.C. Mehta v. State of T.N. and others (1996) 6 SCC
756 : [1996] 9 Suppl. SCR 726; Supreme Court Women
Lawyers Association (SCWLA) v. Union of India and
another (2016) 3 SCC 680 : [2016] 1 SCR 207 -
referred to.
Case Law Reference
2017 (8) SCALE 112
referred to
Para 12
[1996] 9 Suppl. SCR 726
referred to
Para 19
[2016] 1 SCR 207
 referred to
Para 20
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 76
of 2018.
Under Article 32 of the Constitution of India.
Alakh Alok Srivastava, (Petitioner-in-person), Ms. Harpreet Kaur,
Kedar Nath Tripathy, Advs. for the Petitioner.
Ms. Pinky Anand, ASG, R. Balasubramanian, Ms. Swarupma
Chaturvedi, Ms. Snidha Mehra, Ms. Aarti Sharma, Santosh Kr.
Vishwakarma, Ms. Arunima Dwivedi, Ms. Saudamini Sharma,
M.K. Maroria, Gurmeet Singh Makker, Sibo Sankar Mishra, Ms. Sutapa
Sarangi, Ms. S.S. Sen, Advs. for the Respondents.

## Text

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ALAKH ALOK SRIVASTAVA
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 76 of 2018)
MAY 01, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Protection of Children from Sexual Offences Act, 2012
(POCSO) - Implementation of - Keeping in view the protection of
the children and the statutory scheme conceived under the POCSO
Act, directions issued so that the legislative intent and the purpose
are actually fructified at the ground level - Held: (i) The High Courts
to ensure that the cases registered under the POCSO Act are tried
and disposed of by the Special Courts and the presiding officers of
the said courts are sensitized in the matters of child protection and
psychological response; (ii) The Special Courts be established, if
not already done, and be assigned the responsibility to deal with
cases under the POCSO Act; (iii) Instructions be issued to the Special
Courts to fast track the cases by not granting unnecessary
adjournments and complete the trial in a time-bound manner or
within a specific time frame under the POCSO Act; (iv)The Chief
Justices of the High Courts to constitute a Committee of Judges to
regulate and monitor the progress of the trials under the POCSO
Act; (v) The Director General of Police or the officer of equivalent
rank of the States to constitute a Special Task Force which shall
ensure that the investigation is properly conducted and witnesses
are produced on the dates fixed before the trial courts; (vi) Adequate
steps to be taken by the High Courts to provide child friendly
atmosphere in the Special Courts keeping in view the provisions of
the POCSO Act so that the spirit of the Act is observed.
Protection of Children from Sexual Offences Act, 2012
(POCSO) - The Statement of Objects and reasons of the Act -
Discussed.
Eera through Dr. Manjula Krippendorf v. State (NCT
of Delhi) and another 2017 (8) SCALE 112;
[2018] 6 S.C.R. 972
972
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M.C. Mehta v. State of T.N. and others (1996) 6 SCC
756 : [1996] 9 Suppl. SCR 726; Supreme Court Women
Lawyers Association (SCWLA) v. Union of India and
another (2016) 3 SCC 680 : [2016] 1 SCR 207 -
referred to.
Case Law Reference
2017 (8) SCALE 112
referred to
Para 12
[1996] 9 Suppl. SCR 726
referred to
Para 19
[2016] 1 SCR 207
 referred to
Para 20
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 76
of 2018.
Under Article 32 of the Constitution of India.
Alakh Alok Srivastava, (Petitioner-in-person), Ms. Harpreet Kaur,
Kedar Nath Tripathy, Advs. for the Petitioner.
Ms. Pinky Anand, ASG, R. Balasubramanian, Ms. Swarupma
Chaturvedi, Ms. Snidha Mehra, Ms. Aarti Sharma, Santosh Kr.
Vishwakarma, Ms. Arunima Dwivedi, Ms. Saudamini Sharma,
M.K. Maroria, Gurmeet Singh Makker, Sibo Sankar Mishra, Ms. Sutapa
Sarangi, Ms. S.S. Sen, Advs. for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI. 1. The instant Writ Petition initially raised
two issues, first, the treatment of an eight month old female child who
had become a victim of a crime committed under the Protection of
Children from Sexual Offences Act, 2012 (for brevity, 'the POCSO
Act') and the second, speedy trial and monitoring of the trials under the
POCSO Act in a child friendly court regard being had to the letter and
spirit of the provisions contained in the said Act.
2. The first prayer was dealt with vide orders dated 31st January,
2018, 1st February, 2018 and 12th March, 2018. It is necessary to note
here that regard being had to the health condition of the child, a team of
doctors from the All India Institute of Medical Sciences (AIIMS) was
sent to visit the patient at Kalawati Saran Children Hospital. That apart,
a direction was issued to the authorities of the Delhi State Legal Services
Authority to accompany the team of doctors.
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3. A team of doctors along with the competent authority of the
Delhi State Legal Services Authority examined the victim and submitted
a report. The relevant part of the report reads as follows:-
"Examination revealed 8 month old female infant alert and active,
sharing bed with another girl child. She was breast feeding with
normal vital signs (HR 120/min, Respiratory rate 32/min, no distress,
saturation 98% on room air, temperature 36.8 C). Her weight
was 5.6 kilogram and physical appearance looks normal. Systemic
examination did not reveal any abnormality. The operated perineal
would was looking normal and the colostomy was healthy.
Overall the child looks stable and recouping following surgery.
The surgical wound will need regular aseptic dressings and further
management will be done as per need. In view of providing holistic
care, the team felt that the child may be shifted to AIIMS under
care of Pediatrics Surgery, Pediatrics & Obstetrics Department
with support from Psychiatry (for parenteral counseling). Team
talked to family (Father & Mother) took consent for transfer of
child under care by AIIMS team which they agreed but were
worried and concerned about child's health. Father was counseled
and given assurance for providing best care. Being less than one
year age all medical expenses will be exempted at AIIMS under
Janani Shishu Suraksa Yojana of Government of India."
4. Be it stated, the Member Secretary of the Delhi State Legal
Services Authority filed a status report which mentions that the child
had been shifted to AIIMS for better treatment. That apart, the Member
Secretary stated thus:-
"That, in the instant case as per report received from DLSA
concerned it has stated that vide order dated 30.01.2018 by the
Court of Ld. Additional Sessions Judge, Rohini Court an interim
compensation of Rs.75,000/- has been awarded in accordance
with Delhi Victim Compensation Scheme, 2015. After completion
of necessary formalities i.e. bank account etc. the amount of the
said interim compensation would be disbursed immediately through
RTGS.
That, it is submitted that DLSA Secretary, North-West has also
visited at Kalawati Saran Hospital and met the parents of the
child in the morning of 31.01.2018 and apprised them of their
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legal rights qua Delhi Witness Protection Scheme, 2015, Delhi
Victim Compensation Scheme, 2015 etc. It is also submitted Legal
Services Advocate of DLSA has been appointed for providing
legal aid in the matter."
5. On 12.03.2018, when the matter was listed, it was submitted
by Ms. Pinky Anand, learned Additional Solicitor General, that the victim
child had been discharged from AIIMS but she was required to undergo
another surgery which had been fixed for 17th April, 2018.
6. As far as the child in the instant case is concerned, we have
been apprised that she has undergone a second surgery and she is
presently stable. Ms. Pinky Anand, learned Additional Solicitor General,
would submit that if any medical assistance is required and the same is
brought to her notice, proper care shall be provided to the child.
7. With regard to the second aspect, on 01.02.2018, it was urged
by petitioner who appeared in person that as far as cases under the
POCSO Act are concerned, there should be speedy disposal of such
cases and on a subsequent date, information was sought from the High
Courts in respect of the monitoring of speedy disposal of such cases.
8. When the matter was called up today, the petitioner filed a
chart stating the number of cases under the POCSO Act pending in
various States and sought intervention of this Court for issuing directions
so that sensitivity with regard to the said legislation is shown by the trial
courts and further, there should be a speedy trial as postulated in the
POCSO Act.
9. We have heard Mr. Alakh Alok Srivastava, the petitioner, who
has appeared in person and Ms. Pinky Anand, learned Additional Solicitor
for the respondent-Union of India.
10. The POCSO Act has been legislated keeping in view the
fundamental concept under Article 15 of the Constitution that empowers
the State to make special provisions for children and also Article 39(f)
which provides that the State shall in particular direct its policy towards
securing that the children are given opportunities and facilities to develop
in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against moral
and material abandonment. The Statement of Objects and Reasons of
the Act indicate the focus for reduction of child abuse and protection of
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children from the offences of sexual assault, sexual harassment and
pornography, etc. The relevant part of the Statement of Objects and
Reasons of the POCSO Act is extracted below:-
"3. The date collected by the National Crime Records Bureau
shows that there has been increase in cases of sexual offences
against children. This is corroborated by the 'Study on Child Abuse:
India 2007' conducted by the Ministry of Women and Child
Development. Moreover, sexual offences against children are not
adequately addressed by the existing laws. A large number of
such offences are neither specifically provided for nor are they
adequately penalized. The interests of the child, both as a victim
as well as a witness, need to be protected. It is felt that offences
Against children need to be defined explicitly and countered
through commensurate penalties as an effective deterrence.
4. It is, therefore, proposed to enact a self contained comprehensive
legislation inter alia to provide for protection of children from the
offences of sexual assault, sexual harassment and pornography
with due regard for safeguarding the interest and well being of
the child at every stage of the judicial process incorporating childfriendly procedures for reporting, recording of evidence,
investigation and trial of offences and provision for establishment
of Special Courts for speedy trial of such offences."
11. In this context, it is apposite to reproduce the long Preamble
of the POCSO Act. It is as follows:-
"An Act to protect children from offences of sexual assault, sexual
harassment and pornography and provide for establishment of
Special Courts for trial of such offences and for matters connected
therewith or incidental thereto.
Whereas clause (3) of article 15 of the Constitution, inter alia,
empowers the State to make special provisions for children;
And whereas, the Government of India has acceded on the 11th
December, 1992 to the Convention on the Rights of the Child,
adopted by the General Assembly of the United Nations, which
has prescribed a set of standards to be followed by all State parties
in securing the best interests of the child;
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And whereas it is necessary for the proper development of the
child that his or her right to privacy and confidentiality be protected
and respected by every person by all means and through all stages
of a judicial process involving the child;
 And whereas it is imperative that the law operates in a manner
that the best interest and well being of the child are regarded as
being of paramount importance at every stage, to ensure the healthy
physical, emotional, intellectual and social development of the child;
And whereas the State parties to the Convention on the Rights
of the Child are required to undertake all appropriate national,
bilateral and multilateral measures to prevent -
(a) the inducement or coercion of a child to engage in any
 unlawful sexual activity;
(b) the exploitative use of children in prostitution or other
unlawful sexual practices;
(c) the exploitative use of children in pornographic performances
and materials;
And whereas sexual exploitation and sexual abuse of children
are heinous crimes and need to be effectively addressed."
12. In Eera through Dr. Manjula Krippendorf v. State (NCT
of Delhi) and another1, one of us (Dipak Misra, J), dwelling upon the
purpose of the Statement of Objects and Reasons and the Preamble of
the POCSO Act, observed:-
"20. ... the very purpose of bringing a legislation of the present
nature is to protect the children from the sexual assault, harassment
and exploitation, and to secure the best interest of the child. On
an avid and diligent discernment of the preamble, it is manifest
that it recognizes the necessity of the right to privacy and
confidentiality of a child to be protected and respected by every
person by all means and through all stages of a judicial process
involving the child. Best interest and well being are regarded as
being of paramount importance at every stage to ensure the healthy
physical, emotional, intellectual and social development of the child.
There is also a stipulation that sexual exploitation and sexual abuse
are heinous offences and need to be effectively addressed. The
 1 (2017) 15 SCC 133
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statement of objects and reasons provides regard being had to the
constitutional mandate, to direct its policy towards securing that
the tender age of children is not abused and their childhood is
protected against exploitation and they are given facilities to develop
in a healthy manner and in conditions of freedom and dignity.
There is also a mention which is quite significant that interest of
the child, both as a victim as well as a witness, needs to be
protected. The stress is on providing child-friendly procedure.
Dignity of the child has been laid immense emphasis in the scheme
of legislation. Protection and interest occupy the seminal place in
the text of the POCSO Act."
13. At the very outset, it has to be stated with authority that the
POCSO Act is a gender neutral legislation. This Act has been divided
into various Chapters and Parts therein. Chapter II of the Act titled
"Sexual Offences Against Children" is segregated into five parts. Part
A of the said Chapter contains two Sections, namely Section 3 and Section
4. Section 3 defines the offence of "Penetrative Sexual Assault" whereas
Section 4 lays down the punishment for the said offence. Likewise, Part
B of the said Chapter titled "Aggravated Penetrative Sexual Assault
and Punishment therefor" contains two sections, namely Section 5 and
Section 6. The various sub-sections of Section 5 copiously deal with
various situations, circumstances and categories of persons where the
offence of penetrative sexual assault would take the character of the
offence of aggravated penetrative sexual assault. Section 5(k), in
particular, while laying emphasis on the mental stability of a child stipulates
that where an offender commits penetrative sexual assault on a child, by
taking advantage of the child's mental or physical disability, it shall amount
to an offence of aggravated penetrative sexual assault.
14. That apart, Section 28 which occurs in Chapter VII titled
"Special Courts" requires for designation of a Court of Session in each
district as Special Court specifically, to try offences under the POCSO
Act for ensuring a speedy trial which is one of the fundamental objectives
of the Act. Further, Section 32 stipulates that State Government shall
appoint a Special Public Prosecutor for every Special court, so designated
under Section 28, for conducting cases only under the POCSO Act.
15. Chapter VIII of the Act deals with the procedure and powers
of theses Special Courts and the procedure for recording evidence of
the child victim. Section 33 falling under Chapter VIII provides for various
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safeguards at the trial stage and ensures that various manifold interests
of the child are protected. We think it appropriate to reproduce the
relevant part of Section 33:-
"33. Procedure and powers of Special Court - (1) A Special Court
may take cognizance of any offence, without the accused being
committed to it for trial, upon receiving a complaint of facts which
constitute such offence, or upon a police report of such facts.
(2) The Special Public Prosecutor, or as the case may be, the
counsel appearing for the accused shall, while recording the
examination-in-chief, cross-examination or re-examination of the
child, communicate the questions to be put to the child to the Special
Court which shall in turn put those questions to the child.
(3)The Special Court may, if it considers necessary, permit frequent
breaks for the child during the trial.
(4)The Special Court shall create a child-friendly atmosphere by
allowing a family member, a guardian, a friend or a relative, in
whom the child has trust or confidence, to be present in the court.
(5) The Special Court shall ensure that the child is not called
repeatedly to testify in the court.
(6) The Special Court not permit aggressive questioning or
character assassination of the child and ensure that dignity of the
child is maintained at all times during the trial.
(7) The Special Court shall ensure that the identity of the child is
not disclosed at any time during the course of investigation or
trial:
Provided that for reasons to be recorded in writing, the Special
Court may permit such disclosure, if in its opinion such disclosure
is in the interest of the child.
Explanation. - For the purposes of this sub-section, the identity of
the child shall include the identity of the child's family, school,
relatives, neighbourhood or any other information by which the
identity of the child may be revealed."
16. Section 35 provides for recording of the evidence of the child
and disposal of the cases. The same being important for the present
purpose, it is quoted here:-
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"35. Period for recording of evidence of child and disposal of
case. - (1)The evidence of the child shall be recorded within a
period of thirty days of the Special Court taking cognizance of the
offence and reasons for delay, if any, shall be recorded by the
Special Court.
(2) The Special Court shall complete the trial, as far as possible,
within a period of one year from the date of taking cognizance of
the offence."
17. The aforesaid provisions make it clear as crystal that the
legislature has commanded the State to take various steps at many levels
so that the child is protected and the trial is appropriately conducted.
18. Section 37 provides that the Special Court shall try cases in
camera and in the presence of the parents of the child or any other
person in whom the child has trust or confidence; Section 36 casts a
duty on the Special Court to ensure that the child is not exposed in any
way to the accused at the time of recording of the evidence while at the
same time ensuring that the accused is in a position to hear the statement
of the child and communicate with his advocate. The objective of the
POCSO Act is to protect the child from many an aspect so that he/she
does not feel a sense of discomfort or fear or is reminded of the horrified
experience and further there has to be a child friendly atmosphere.
19. Speaking about the child, a three-Judge Bench in M.C. Mehta
v. State of T.N. and others2 opined that:-
"... "child is the father of man". To enable fathering of a valiant
and vibrant man, the child must be groomed well in the formative
years of his life. He must receive education, acquire knowledge
of man and materials and blossom in such an atmosphere that on
reaching age, he is found to be a man with a mission, a man who
matters so far as the society is concerned."
20. In Supreme Court Women Lawyers Association (SCWLA)
v. Union of India and another3, this Court has observed:-
"In the case at hand, we are concerned with the rape committed
on a girl child. As has been urged before us that such crimes are
rampant for unfathomable reasons and it is the obligation of the
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 3 (2016) 3 SCC 680
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law and law-makers to cultivate respect for the children and
especially the girl children who are treated with such barbarity
and savageness as indicated earlier. The learned Senior Counsel
appearing for the petitioner has emphasised on the obtaining
horrendous and repulsive situation."
Alice Miller, a Swiss psychologist, speaking about child abuse has
said:-
"Child abuse damages a person for life and that damage is in no
way diminished by the ignorance of the perpetrator. It is only with
the uncovering of the complete truth as it affects all those involved
that a genuinely viable solution can be found to the dangers of
child abuse."
21. Keeping in view the protection of the children and the statutory
scheme conceived under the POCSO Act, it is necessary to issue certain
directions so that the legislative intent and the purpose are actually
fructified at the ground level and it becomes possible to bridge the gap
between the legislation remaining a mere parchment or blueprint of social
change and its practice or implementation in true essence and spirit is
achieved.
22. Mr. Srivastava has provided us a chart relating to the cases
pending under the POCSO Act in all States except Andhra Pradesh,
Telangana, Rajasthan and Jammu and Kashmir in respect of which the
data is not available. We may take the example of two States, namely,
Madhya Pradesh and Uttar Pradesh. The pendency of such cases in
the State of Uttar Pradesh is approximately 30884 and in the State of
Madhya Pradesh, approximately 10117.
23. It is submitted by Mr. Srivastava that in both the States, the
cases are pending at the evidence stage beyond one year. We are
absolutely conscious that Section 35(2) of the Act says "as far as
possible". Be that as it may, regard being had to the spirit of the Act, we
think it appropriate to issue the following directions:-
(i) The High Courts shall ensure that the cases registered under
the POCSO Act are tried and disposed of by the Special Courts
and the presiding officers of the said courts are sensitized in the
matters of child protection and psychological response.
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(ii) The Special Courts, as conceived, be established, if not already
done, and be assigned the responsibility to deal with the cases
under the POCSO Act.
(iii) The instructions should be issued to the Special Courts to fast
track the cases by not granting unnecessary adjournments and
following the procedure laid down in the POCSO Act and thus
complete the trial in a time-bound manner or within a specific
time frame under the Act.
(iv) The Chief Justices of the High Courts are requested to
constitute a Committee of three Judges to regulate and monitor
the progress of the trials under the POCSO Act. The High Courts
where three Judges are not available the Chief Justices of the
said courts shall constitute one Judge Committee.
(v) The Director General of Police or the officer of equivalent
rank of the States shall constitute a Special Task Force which
shall ensure that the investigation is properly conducted and
witnesses are produced on the dates fixed before the trial courts.
(vi) Adequate steps shall be taken by the High Courts to provide
child friendly atmosphere in the Special Courts keeping in view
the provisions of the POCSO Act so that the spirit of the Act is
observed.
24. The Registry is directed to communicate this order to the
Registrar General of the High Courts so that it can be immediately
implemented. With the aforesaid directions, the writ petition stands
disposed of.
Ankit Gyan
 Writ Petition disposed of.