Guidelines and Protocols for Judiciary
Delhi Commission for Women v. Delhi Police, W.P. (CRL) 696/2008, Delhi High Court order dated 23.4.2009.
a) In cases where the child is placed in a shelter following the orders of the Child Welfare Committee or a Metropolitan Magistrate, the application seeking custody of the child made by the parents/relatives of the victim should not be acceded to till such time The Public Prosecutor gets the status of the applicants verified with the Rape Crisis Cell and also call for the records of the Child Welfare Committee if it is not available.
a) The Magistrate, unless there are compelling reasons, shall record the statement of the victim under Section 164 Cr.P.C. on the day on which the application is moved by the Investigation Officer. The Magistrate before proceeding to record the statement shall ensure that the child is made comfortable and she is free of any extraneous pressure.
b) An endeavor shall be made to commit such cases of offence to the Court of Sessions expeditiously and preferably within 15 days.
c) The Hon’ble Supreme Court in Delhi Domestic Working Women Forum Vs Union of India, 1995 (1) SCC 14 and reiterated by this Hon’ble Court in Khem Chand Vs. State of Delhi 2008 (4) JCC 2 497 had directed that the victim be provided with a counsel. The existing practice of the victims being represented by a counsel from the Rape Crisis Cell may continue. In cases where the victim has a private lawyer, she may be allowed to retain the private lawyer.
d) As far as possible chief examination and cross examination of the victim must be conducted on the same day.
e) The Additional Session Judge / District Judge shall maintain a panel of psychiatrists, psychologists and experts in sign language etc. who would assist in recording the statement of witnesses as and when requested by the Session Courts.
f) If it is brought to the notice of the Court from a support person / Rape Crises Cell Advocate/Victim, regarding threats received by the victim or her family members to compromise the matter, the judge shall immediately direct the ACP to look into the matter and provide an action taken report before the court within 2 days. The court must ensure that protection is provided to the victim and her family.
g) In cases in which the witness is sent back unexamined and is bound down, the Court shall ensure that at least the travelling expenses for coming to and from for attending the Court are paid.
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Delhi High Court, Guidelines for recording of evidence of vulnerable witnesses in criminal matters
Some key features of the guidelines are as follows:-
A child who has not completed 18 years of age is to be treated as” Vulnerable Witness”.
Practice of Court House Tour has been introduced which means that a pre-trial tour of court room will be conducted to familiarize the vulnerable witnesses with the environment and the basic process of adjudication and roles of each court official.
The guideline recognizes factors of adversarial Criminal Justice System which causes stress on child witness, rendering them further vulnerable. These factors include
1. Multiple depositions and not using developmentally appropriate language;
2. Delays and continuances;
3. Testifying more than once;
4. Prolonged/protracted court proceedings;
5. Lack of communication between professionals including police, doctors, lawyers, prosecutors, investigators, psychologists, etc,
6. Fear of public exposure;
7. Lack of understanding of complex legal procedures;
8. Face to face contact with the accused;
9. Practices are insensitive to developmental needs;
10. Inappropriate cross-examination;
11. Lack of adequate support and victims services;
12. Sequestration of witnesses who may be supportive to the child;
13. Placement that exposes the child to intimidation, pressure, or continued abuse;
14. Inadequate preparation for fearless and robust testifying;
15. Worry about not being believed especially when there is no evidence other than the testimony of the vulnerable witness;
16. Formality of court proceedings and surroundings including formal dress of members of the judiciary and legal personnel.
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