The Delhi High Court's single judge bench, led by Justice Jasmeet Singh, has issued a slew of directions regarding the presence of POCSO victims during bail hearings, observing that it has a negative impact on the victim's psyche. The bench ordered that the victim be brought virtually before the court, either by the IO or a support person, via Video Conferencing or by utilising the District Legal Services Authority's assistance (DSLSA). Observing that the victim and accused will not come face to face in this manner, which can prevent "victim re-traumatization," the court stated that a hybrid form of hearing bail applications would adequately address the victim's concerns while safeguarding the rights of the accused.

The court ordered that the concerned IO serve the victim's notice of bail application on her in a timely manner so that she has a reasonable amount of time to enter appearance and make her submissions. “The Investigating Officer while serving notice/summons of the bail application to the victim/ prosecutrix shall make relevant inquiries about the victim and her circumstances and shall document the same in order to assist the court in the hearing of the bail application and to facilitate effective representation and participation on behalf of the victim,”

It also stated that the IO should make certain that the victim is not made to feel uncomfortable or questioned as an accomplice to a crime while conducting such inquiries.

"On the day of the first appearance of the victim/prosecutrix, her submissions qua the bail application can be recorded by the Court and the same maybe used for the purpose of adjudicating on the bail application. The victim’s opinion and objections regarding bail application on the first interaction can be mentioned in the order passed on the day of interaction between the Ld. Judge and the victim and this order can then be relied on at the stage of final disposal of bail application," the court added.

The bench also stated that in exceptional cases, in-chamber interaction with the victim can be done and her submissions regarding the bail application can be recorded in the order sheet passed on that day, so that it can be considered at a later stage.

It also clarified that the presence of the victim may not be insisted on in cases under the POCSO Act where the accused is a child in conflict with the law, because the considerations for granting bail to the child in conflict with the law are not dependent on the prosecutrix's apprehensions.

Other directions are as follows:

• If the victim indicates in writing that her counsel/parent/guardian/support person will appear on her behalf and make submissions on the bail application, the prosecutrix's physical or virtual presence should not be required. A written authorization signed by the victim authorising another to make submissions on her behalf (after the victim has been identified by the IO) and forwarded by the SHO should suffice.
• Furthermore, once the bail application is denied, a copy of the order must be sent to the victim. This is significant because the victim's primary concern is her safety if the accused is released on bail. By giving her a copy of the bail order, the victim is informed about the status of the accused, the conditions of the bail, and her right to petition the court for bail cancellation if the conditions of bail are violated.
• It would also be in the best interests of things if Judicial Officers were made aware of the need to limit the victim's interaction with the accused in court to the bare minimum and to allow the victim to be represented in court through an authorised person at the time of bail application hearing, rather than insisting on the victim's appearance in person (virtually/physically).
• Judicial Officers may be sensitised to the extent that Practice Directions issued by the Hon'ble High Court of Delhi on September 24, 2019, and judicial directions in "Reena Jha v. Union of India" and "Miss 'G' (Minor) through her Mother v. State of NCT of Delhi" were issued to ensure that the victim does not remain unrepresented or unheard when the question of granting bail to the accused is being considered. However, it was not intended to require the victim's presence on all dates of hearing in a bail application, so that the process itself becomes a punishment for the victim by repeatedly exposing her to the accused/his counsel and reopening her emotional and psychological wounds.

"The psychological impact on a POCSO victim being present in Court during the arguments is grave as there are allegations, accusations, doubting the integrity, character, etc. of the prosecutrix, her family, etc. The presence of the prosecutrix victim in Court at the time of arguments, according to me, has an adverse impact on the psyche of the prosecutrix. The prosecutrix is forced to be present in Court with the accused, who is the same person who has allegedly violated her. It was felt that it would be in the interest of the victim that she is not traumatized again and again by re-living the said incident by being present in Court proceedings," the court said.

During the hearing of an appeal challenging an accused's conviction in a POCSO case, the court took note of the issue on its own. The appeal will be heard in due course, according to Justice Singh.

Case Title: X v. STATE