Overview of the procedures under POCSO Act – Prepared by CCL NLSIU, FEB 2013

Recording of Statement by the Magistrate

How must the statement be recorded?

A Magistrate recording the statement of a child under Section 164 of the Code of Criminal Procedure (CrPC) must record it in the exact language spoken by the child. The statement must be recorded in the presence of parents or any other person in whom the child trusts or has confidence. The assistance of a qualified translator or interpreter can be taken while recording the statement.The Magistrate must also try and ensure that the statement is recorded by audio-visual means. The Magistrate must also provide the child and his or her parents or representative, a copy of the police report on the matter.

What measures must be taken to record the statement of a child with disabilities?

The Magistrate must seek the assistance of a qualified special educator or a person familiar with the manner of communication of the child or an expert in that field, while recording the statement of a child with mental or physical disability.

Trial before the Special Court

All trials before the Special Court must be conducted in camera and in the presence of the parents of the child or any other person the child trusts.

Examination, cross-examination, and re-examination

In the course of recording the examination-in-chief, cross-examination or re-examination, all questions to the child by the Special Public Prosecutor or the counsel for the accused must be communicated to the Special Court which must then put the questions to the child.

Recording of Evidence

The evidence of the child must be recorded within 30 days of the Special Court having taken cognizance of the offence. If it is delayed, reasons will have to be recorded by the Special Court explaining the delay. At the time of recording evidence, the Special Court will have to ensure that the child is not exposed to the accused and also that the accused is in a position to hear the statement of the child and communicate with his advocate. This can be done by recording the evidence through video-conferencing or by using single visibility mirrors or curtains. Assistance of a qualified translator or interpreter or special educator can be sought while recording the evidence of a child including a child with mental or physical disability.

Responsibilities of the Special Court

The Special Court must take the following measures while conducting the trial under the Act:

• If required, permit frequent breaks for the child during the trial.
• 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.
• Ensure that the child is not called repeatedly to testify in court.
• Not allow aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times.
• Ensure that the identity of the child is not disclosed at any time during the course of investigation or trial. Such disclosure can be permitted it is in the interest of the child after reasons are recorded in writing.
• Ensure that trial is completed, as far as possible, within one year from the date of taking cognizance of the offence.

The Special Court can also order interim compensation to meet the immediate needs of the child for relief and rehabilitation at any stage after registration of the FIR. Such an order can be passed based on an application by or behalf of the victim or by the court on its own. It can also recommend the award of compensation if the child has suffered loss or injury and where the accused is convicted, discharged, acquitted, or is not traceable or identifiable. The compensation awarded is payable by the State Government from the Victims Compensation Fund or other schemes or funds established for the purpose of compensating and rehabilitating victims under Section 357A of the CrPC. Such compensation is payable within 30 days of the receipt of the order.