Prerana ATC | Fight Trafficking

Pre-Trial Legal Investigative Processes involving Child Victims of Sexual Offences - How can they be less violative and more child-friendly?

Geetarani Lourembam

With Inputs from Priti Patkar and Kashina Kareem

As per the Protection of Children from Sexual Offences ACT (POCSOA) Rules2020, the Child Welfare Committee (CWC) can appoint a Support Person to render assistance to the child through the process of investigation & trial. Over the last few years, as per appointment given by the CWCs, Prerana has played the role of  a  Support Person in cases of sexual violence against children.

As a part of the pre-trial investigation process, the Support Person is expected to assist the child victim (and where required, their family) in recording of the victim child’s statement (before the appropriate Magistrate – under section 164 of CrPC), spot identification – part of the investigation in which the police may ask the victim to accompany them to  identify the spots where the criminal incident  took place, and participate in the test identification parade[1] – to identify the accused from among the suspects in the said case. These are a few common processes among many others in the pre-trial investigative process.

In late September 2021, Prerana was appointed as a Support Person by the CWC in a certain case registered under the POCSO Act. As the case was considered to be sensitive due to the involvement of multiple persons as the suspects/accused, the CWC had reinforced with the police the importance for the presence of Support Person to be with the child during each phase of the investigation.

However, when the investigation process began, the social workers from Prerana were often informed about the respective process on the day of the investigation/procedure itself. The police expected and took for granted that the social worker would be available at any time of the day within a limited notice period to assist the child in the pre-trial processes.  Coordinating with the police thus became a challenge over a period of time. This also adversely affected the social worker’s scope to orient the child on the procedures well in advance and plan their day. This immediate intimation further led to a time delay in starting some of these investigation processes as the social worker who was already engaged elsewhere was expected to step in. Prior intimation would have helped the social worker to be present for this process in a more time efficient manner. Discussions between the social worker and the Investigating Officer on the importance of prior intimation and how this accounts for child friendly procedure took place over the course of time.

One such procedure where the social worker accompanied the child was the Test Identification Parade (TIP). TIP is a process that is mostly used in criminal investigation to identify the accused before an Executive Magistrate. The role of the witness (in quite a few cases, the victim themselves) is very important in the TIP because it is the responsibility of the witness to identify the offender through the parade. The purpose is to ascertain that the witness can identify the accused among the various several individuals. Law enforcement often uses this mechanism to establish the credibility of the witness and it is mostly used in cases where the witness might have never seen the accused except during the crime incident.

Even during this procedure, the police informed the Support Person (social worker) only an hour before the identification parade was to take place. Without much options, the social worker immediately proceeded to the venue to assist the child. However, by the time the Support Person, the child and the police reached the Jail for the process it was already around 1 pm. The officer in charge had left for his afternoon break by then. As the police informed the social worker that the officer would return from his break at around 4 pm, the child, the Support Person along with the police waited before the jail premises. During this time, the police officials were engaged in interacting with other individuals who seem to have been apprehended in other criminal matters.

The child and the Support Person waited outside the jail premise with a number of other alleged accused (not related to their case). After about an hour of waiting, the Support Person interacted with the Investigating Office and subsequently with the CWC to inform them about the situation at the jail premise. While the CWC heard and took cognizance of the matter, the IO responded stating that since this was beyond the Police Department, there was not much they could do about this situation. The child and Support Person, along with two lady police officials subsequently waited in the Police vehicle.

At around 4:40 p.m., the child was finally called inside for the identification parade. However, the Support Person was not allowed to accompany the child inside the jail premises. As per various Court Guidelines issued for TIP of accused by child witness, the child is entitled to be accompanied by his parents/ guardians or other trusted adults. However, on the field it has been observed that, the Support Persons are often not permitted to accompany the child within the jail premises. Due to prior experience, the Support Person had foreseen the possibility of not being able to accompany the child and thus, had beforehand oriented the child about the process. The child told the social worker that she felt confident to undergo the process on her own. The Support Person assured the child that they would be waiting for the child post the TIP.

The process of coming in close contact with an accused can be emotionally disturbing for a victim and thus, various Guidelines[2] by the Courts mandate installation of semi reflective screens or similar mechanisms so that the child witness is not confronted face to face with the suspects/offenders participating in the TIP proceedings. Approximately 7-8 minutes after the child was taken into the premise, she (the child) came out of the jail premises /block and approached the Support Person. She seemed overwhelmed and conveyed to the Support Person that there was no barrier between her and the accused while the identification was on-going, making it a one-to-one face off with the accused. She shared feeling scared but managed to identify the accused nonetheless.

Meanwhile the social worker was trying to look for the police officer who could not be located within the immediate premise to convey and report on the process that was followed. While returning to the Child Care Institution in the police vehicle, the child shared that she was extremely tired and hungry, and the case worker asked the police to take a break to grab some food for the child victim. Usually in such cases, the social worker would go prepared with food and water understanding that the process could be intense and exhausting for the child. However, in this situation, the immediate call to the social worker gave very little window for the social worker to go prepared.  When it comes to child-friendly systems and the current standards & practices, there is certainly so much that we need to work on to ensure that the victim is not re-traumatized or re-victimized especially during the process of investigation & trial. The Delhi High Court Guidelines[3] for TIP of accused by child witness provides for several conducive measures to be adopted by the Director General (Prisons) for children below 12 years of age.  Prerana’s on-ground experience of assisting child victim of sexual violence shows that extension of such guidelines for all children below 18 years of age will conceivably lead to significant reduction of revictimization of the child during the TIP.  

[1] Test Identification Parade is used as a means to examine the truthfulness of the witness and the witness’s ability to identify unknown persons/accused.

[2] For more information on Test Identification Parade, you may refer to the given link:

https://thelawbrigade.com/criminal-law/test-identification-parade-a-critical-analysis-in-india-practice/

https://www.mid-day.com/news/india-news/article/mere-identification-in-test-parade-not-substantive-basis-for-conviction-supreme-court-23187681 

https://indianexpress.com/article/cities/mumbai/bombay-high-court-court-can-summon-executive-magistrate-who-conducted-identification-parade-if-it-has-doubts-4685022/

[3] https://www.lawweb.in/2020/07/delhi-high-court-guidelines-for-test.html

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