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Himachal Pradesh High Court · body

2018 DIGILAW 1805 (HP)

Mohinder Kumar v. State of Himachal Pradesh

2018-10-08

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. The instant petition under Section 482 Cr.P.C has been filed on behalf of the petitioner-accused (hereinafter referred to as the accused) for quashing and setting aside the order dated 8.6.2018, passed by learned Special Judge, Chamba in Cr. MP No.522/2018, titled as State of H.P. versus Mohinder Kumar and others in (Sessions Trial No. 36/2017), whereby the application having been filed by the prosecution under Section 39 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the Act in short), has been allowed and Smt. Sneh Sharma, Counsellor in the Office of District Child Protection Unit, Chamba, has been summoned for rendering assistance while recording the statement of victim No.6, who is, admittedly, suffering from Moderate Mental Retardation (ICD-10F71), mental age (6-9 years), with disability of 72% and is unable to depose. 2. The facts, as emerge from the record are that an application under Section 39 of the Act, came to be filed on behalf the respondent prosecution (hereinafter referred to as the prosecution), seeking therein permission to take assistance of an expert while recording the statement of victim No.6. The prosecution averred in the application that pursuant to order dated 11.04.2018, passed by this Court, victim No.6, was subjected for the psychological evaluation by the Medical Board constituted by the RPGMC, Tanda, who has categorically opined that victim No.6 is suffering from Moderate Mental Retardation (ICD-10F71), mental age (6-9 years), with disability of 72%, severe type and permanent in nature. The prosecution also averred that keeping in view the mental condition of victim No.6, there is a requirement to take assistance of an expert as far as examination of the witnesses at the pre-trial as well as trial stage is concerned. The prosecution further averred that victim No.6 cannot be examined without assistance of an expert/Counsellor and as such, the person, namely, Smt. Sneh Sharma, who is enrolled as Counsellor in the Office of District Child Protection Officer, Chamba, may be summoned/called while recording the statement of victim No.6. 3. The aforesaid application filed by the prosecution came to be resisted on behalf the petitioner-accused as well as other co-accused on the ground that assistance of Counsellor cannot be taken at the time of recording of statement of mentally challenged child, under Section 39 of the (Protection of Children from Sexual Offences Act) 2012. 3. The aforesaid application filed by the prosecution came to be resisted on behalf the petitioner-accused as well as other co-accused on the ground that assistance of Counsellor cannot be taken at the time of recording of statement of mentally challenged child, under Section 39 of the (Protection of Children from Sexual Offences Act) 2012. The petitioner-accused also claimed before the Court below that the person proposed to be appointed as a Counsellor does not fall within the ambit of an expert, interpretor, special educator or translator as defined under Section 2 (c) (d) and (e) of the Protection of Children from Sexual Offences Rules, 2012. Apart from above, the accused also stated by way of reply that since FIR at hand came to be registered at the behest of District Child Protection Officer, Chamba and the proposed Counsellor had also played an active role in registration of the FIR, she cannot be termed to be a fit person to be appointed as an expert while recording the statement of victim No.6. 4. Learned Court below vide order dated 8.6.2018, allowed the application filed under Section 39 of the Act and directed the person, namely, Sneh Sharma, Counsellor, District Child Protection Unit, Chamba, to remain present in the Court on 22nd June, 2018, for rendering assistance at the time of recording the statement of victim No.6. 5. In the aforesaid background, the petitioner-accused has approached this Court by way of the instant petition, praying therein to set aside the impugned order dated 08.06.2018. 6. I have heard learned counsel for the parties and gone through the record carefully. 7. It is not in dispute that victim No.6 is suffering from Mental Retardation (ICD-10F71), mental age (6-9 years), with disability of 72%. The perusal of the impugned order reveals that certain questions were put to victim No.6 to ascertain as to whether she is/was not prevented by her mental retardation from understanding and giving rational answers of the questions put to her and accordingly, learned Court below with a view to ascertain her medical age and capacity to depose, referred her to Medical Board of Specialist doctors constituted by R.P.G.M.C, Tanda, who after having examined her, opined that she is suffering from moderate mental retardation. The Board further opined in its report that though due to restricted development of brain, victim No.6, has difficulty in understanding complex tasks, but with assistance she is capable of deposing in her ongoing legal proceedings. 8. Section 38 of the Act, provides that wherever necessary, the Court may take the assistance of a translator or interpreter having such qualifications, experience and on payment of such fees as may be prescribed, while recording the evidence of mentally/physically challenged child. Section 38 (2) clearly provides that if a child has a mental or physical disability, the special Court may take the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed to record the evidence of the child. Section 39 of the Act, provides that State Government shall prepare guidelines for use of non-governmental organizations, professionals and experts or persons having knowledge of psychology, social work, physical health, mental health and child development to be associated with the pretrial and trial stage to assist the child. In this regard, model guidelines have been formulated by the Central Government. 9. Chapter-V of Model Guidelines (Annexue-P5), available at page-24 of paper book, provides for role and appointment of Psychologists and Mental Health Experts. Para 2.1 of this chapter provides for role of Counsellors, whereas, para-2.2 of the aforesaid chapter prescribes qualification of a person to be appointed as Counsellor. It would be appropriate to reproduce the relevant provisions of Chapter-V of Model Guidelines issued by the Ministry of Women and Child Development, under Section 39 of the Act, as under:- “1. Relevant Legal Provisions in the Act and Rules and related Laws: Rule 4 (2)(e): where an SJPU or the local police receives any information under sub-section (1) of Section 19 of the Act, they must inform the child and his/her parent or guardian or other person in whom he child has trust and confidence of the availability of support services including counseling and assist them in contacting the persons who are responsible for providing these services and relief. Rule 5(4)(v): Wherever necessary, a referral or consultation for mental or psychological health or other counseling should be made by the medical professional rendering emergency medical care o the child. Rule 5(4)(v): Wherever necessary, a referral or consultation for mental or psychological health or other counseling should be made by the medical professional rendering emergency medical care o the child. Thus, the rules made under the POCSO At, 2012 provide that the child may be referred for counseling either by the police or by a doctor. 2. Counsellors 2.1 Role of Counsellors The counsellor’s duties will include: (i) To understand the child’s physical and emotional state; (ii) To resolve trauma and foster healing and growth; (iii)To hear the child’s version of the circumstances leading to the concern; (iv) to respond appropriately to the child when the crisis; (v) To provide counseling, support, and group-based prgrams to children referred to them; (vi) To improve and enhance the child’s overall personal and social development, and his/her health and wellbeing; (vii) To facilitate the reintegration of the child into his/her family/community. 2.2 Who may be appointed as a Counsellor? Counseling for children and families at risk in an integral component of the ICPS. The ICPS envisages the development of a cadre of counsellors to prove professional counseling services under various components of the scheme. Counseling may be provided under ICPS by any of the following: (i) CHILDLINE Services (ii) Counsellors appointed by the District Child Protection Society, who will report to the Legal-cum-Probation Officer and will be responsible for providing counseling support to all children and families coming in contact with DCPS (iii) NGOs and other voluntary sector organisations. In all cases of penetrative sexual assault and all aggravated cases, arrangements should be made as far as possible to ensure that the child is provided counseling support. Where a counsellor is not available within the existing ICPS framework, the State Government may secure the engagement of external counsellors on contract basis. 2.3 Criteria for engagement as Counsellor In order to enable the engagement of counsellors from outside the ICPS, including senior counsellors for the more aggravated cases, the DCPU in each district shall maintain a list of persons who may be appointed as counsellors to assist the child. These could include mental health professionals employed by Government or private hospitals and institutions, as well as NGOs and private practitioners outside the ICPS mechanism, chosen on the basis of objective criteria. These could include mental health professionals employed by Government or private hospitals and institutions, as well as NGOs and private practitioners outside the ICPS mechanism, chosen on the basis of objective criteria. As indicative criteria, for any counsellor engaged to provide services to a sexually abused child, a graduate degree, preferably in Sociology/Psychology (Child Psychology)/Social Work is a must. In addition to this, at least 2 to 3 years of work experience related to providing counseling services to children in need of care and protection as well as their parents and families and training on handling cases of child sexual abuse is essential in order to ensure that the child receives counseling from those qualified for and experienced in providing it. 2.1 Counseling Services under the Integrated Child Protection Scheme: Training of Personnel: Counseling can be difficult for children because of the nature of being a child and the difficulty in relating to an adult, especially an adult that they don’t know. Counseling for abused children therefore requires that the counsellor is trained in the subject and understands how children communicate. The ICPS therefore provides that only trained professionals provide services (including counseling) to children.” 10. As per aforesaid provisions/guidelines, the counseling may be provided under ICPS by the CHILDLINE Service, Counsellors appointed by the District Child Protection Society and NGOs/voluntary Sector Organizations, but if roll of Counsellor as defined in para 2.1 is perused, this Court finds force in the argument of Mr. Kul Bhushan Khajuria, learned counsel for the accused-petitioner, that assistance of the Counsellor cannot be taken while recording the statement of victim No.6, who is mentally not fit to get her statement recorded, rather role of Counsellor is to provide physical and emotional support to the victim after alleged incident. The Role of Counsellors, as prescribed in para 2.1 of Chapter-V of Guidelines, nowhere provides that the assistance of counsellor shall be taken by the Court while recording the statement of victim, who is not in a fit state of mind to depose. At this stage, it is apt to take note of Chapter-VII of the Guidelines of the Child Development Experts, which reads as under:- “Child development refers to the various stages of physical, social and psychological growth that occur from birth through young adulthood. At this stage, it is apt to take note of Chapter-VII of the Guidelines of the Child Development Experts, which reads as under:- “Child development refers to the various stages of physical, social and psychological growth that occur from birth through young adulthood. A child who has been the victim of a sexual offence is likely to have been severely traumatized, both mentally as well as physically. A child development expert is therefore a person who is trained to work with children with physical or mental disabilities, to evaluate such a child’s mental and physical development in the context of that child’s experience, and to accordingly facilitate communication with the child. 1. Legal Provisions: As per the definitions in the rules framed under the POCSO Act, 2012, rule 2 (c) states: “Expert” means a person trained in mental health, medicine, child development or other related discipline, who may be required to facilitate communication with a child whose ability to communicate has been affected by trauma, disability or any other vulnerability. Section 26(3) states, “the Magistrate or the Police Officer, as the case may be, may, in the case of a child having a mental or physical disability, seek the assistance of a special educator or any person familiar which the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed, to record the statement of child.” Section 38(2) states, “if a child has a mental or physical disability, the special Court may take the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed to record the evidence of the child.” Thus, the Act envisages a role for child development experts at the stage of taking evidence from the child and recording his/her statement for the purpose of investigation and trial under the Act. The role of this expert is to facilitate communication between the child and the authority concerned. Rule 3 provides for the engagement of various experts, including child development experts, for the purposes of the Act. The role of this expert is to facilitate communication between the child and the authority concerned. Rule 3 provides for the engagement of various experts, including child development experts, for the purposes of the Act. It specifies the qualifications and experience of the experts engaged for facilitating communication with the child, stating that such an expert shall be qualified in the relevant discipline from a recognized University or an institution recognized by the Rehabilitation Council of India. The Rehabilitation Council of India runs programmes in various aspects of child development, including working with physically and mentally disabled children. It also recognizes courses run by other universities in these disciplines. Rule 3 (6) provides that payment for the services of an expert shall be made by the State Government from the Fund maintained under Section 61 of the Juvenile Justice Act, 2000, or from other funds placed at the disposal of the DCPU, at the rates determined by them. It is thus for each DCPU to fix the rates payable to experts in various disciplines. However, it is suggested that these rates be fixed at the level of the State o provide for administrative consistency. The following is also to be kept in mind while engaging the services of an expert: (i) Any preference expressed by the child as to the gender of the expert, may be taken into consideration, and where necessary, more than one such person may be engaged in order to facilitate communication with the child-Rule 3(7). (ii) The interpreter, translator, special educator, expert, or person familiar with the manner of communication of the child engaged to provide services for the purposes of the Act shall be unbiased and impartial and shall disclose any real or perceived conflict of interest. He shall render a complete and accurate interpretation or translation without any additions or omissions, in accordance with Section 282 of the Code of Criminal Procedure, 1973-Rule 3(8). (iii) In proceedings under Section 38, it is for the Special Court to ensure that there is no conflict of interest in engaging a particular expert to provide services under the Act-Rule 3(9). (iv) Any expert appointed under the provisions of the Act or its rules shall be bound by the rules of confidentiality, as described under Section 127 read with Section 126 of the Indian Evidence At, 1872-Rule 3(10).” 11. (iv) Any expert appointed under the provisions of the Act or its rules shall be bound by the rules of confidentiality, as described under Section 127 read with Section 126 of the Indian Evidence At, 1872-Rule 3(10).” 11. It has been specifically provided in the aforesaid Guidelines (Chapter-VII) that a child development expert is a person, who is trained to work with children with physical or mental disabilities, to evaluate such a child’s mental and physical development in the context of the child’s experience, and to accordingly facilitate communication with child. As per rule 2 (c) of the Rules, framed under the POCSO Act, 2012, “Expert” means a person trained in mental health, medicine, child development or other related discipline, who may be required to facilitate communication with a child whose ability to communicate has been affected by trauma, disability or any other vulnerability. Section 26 (3) of the Act, which is reproduced here-in-above clearly provides that the Magistrate or the Police Officer, as the case may be, may, in the case of a child having a mental or physical disability, seek the assistance of a special educator or any person familiar with the manner of communication of the child or an expert in that field, having such qualifications, experience and on payment of such fees as may be prescribed, to record the statement of child. 12. In the case at hand, learned Special Judge, Chamba, taking note of the fact that victim No.6 is suffering from Mental Retardation (ICD-10F71), mental age (6-9 years), with disability of 72%, has summoned Smt. Sneh Sharma, Counsellor, District Child Protection Unit, Chamba, so that her assistance is taken while recording the statement of victim No.6, but she cannot be termed to be appropriate person to have assistance while recording the statement of victim No.6, who is not mentally fit. 13. Having carefully perused the guidelines, as referred to above, this Court is of the considered view that assistance of some special educator or expert in field or person having knowledge of psychology, mental health and child development, can be taken while recording the statement of mentally challenged person. 13. Having carefully perused the guidelines, as referred to above, this Court is of the considered view that assistance of some special educator or expert in field or person having knowledge of psychology, mental health and child development, can be taken while recording the statement of mentally challenged person. It is not in dispute that Smt. Sneh Sharma, is a Counsellor, registered with District Child Protection Unit, Chamba, but if role of counselor as prescribed in para 2.1 of Chapter-V is perused, it nowhere provides that assistance of Counselor can be taken at the time of recording of statement of mentally challenged person, rather Section 26 (3) as has been taken note above, clearly provides that the Magistrate while recording the statement of mentally challenged person can seek the assistance of special educator or any person familiar with the manner of communication of the child or an expert in that field having such qualifications, experience. Besides above “Expert” has been defined in the Rules framed in POCSO Act, 2012 i.e. Rule 2 (c), which defines “Expert” to be a person trained in mental health, medicine, child development or other related discipline, who may be required to facilitate communication with a child whose ability to communicate has been affected by trauma, disability or any other vulnerability. 14. In the case at hand, it is admitted case that victim No.6 is prevented due to her mental retardation from understanding and as such, “Expert” having ability to communicate with a child having been affected by trauma, disability or any other vulnerability, is/was required to be called at the time of recording of statement of victim No.6. Needless to say that services of Expert are required to facilitate communication with a child whose ability to communicate has been affected by trauma, disability and as such, this Court is persuaded to agree with the contentions of learned counsel Mr. Khajuria that learned Court below ought not have summoned the counsellor to have her assistance at the time of recording of statement of victim No.6, rather some expert having qualification, experience to communicate with the child affected by trauma and disability, should have been summoned to render assistance at the time of recording of statement of victim No.6. 15. Khajuria that learned Court below ought not have summoned the counsellor to have her assistance at the time of recording of statement of victim No.6, rather some expert having qualification, experience to communicate with the child affected by trauma and disability, should have been summoned to render assistance at the time of recording of statement of victim No.6. 15. Though, learned Special Judge has brushed aside the argument/plea raised by the accused that since FIR came to be lodged at the behest of District Child Protection Unit, Chamba, the person associated with it cannot be appointed as a counsellor, but this Court having perused material available on record, especially statements having been made by other victims No. 1 to 5 before the Court during trial, wherein they have categorically stated that they were persuaded/compelled by the District Child Protection Unit to lodge complaints against the accused, is of the definite view that learned Court below in no circumstance ought to have summoned Smt. Sneh Sharma to render assistance at the time of recording of statement of victim No.6. 16. Consequently, in view of the above, the present petition is allowed and impugned order dated 8.6.2018, passed in Cr.MP No.522/2018, titled as State of H.P. vs. Mohinder Kumar & others, is set aside and learned Court below is directed to take assistance from an expert or a person as prescribed under Section 26 (3) of the Act as well as Rule 2(c) of POCSO Act, 2012. 17. Registry of this Court is directed to communicate this order to learned Court below forthwith to do the needful. The parties, through learned counsels representing them, undertake to remain present before the Court below on 12.11.2018, on which date, the application having been filed by the prosecution under Section 39 of the Act, shall be decided afresh in view of the observations made hereinabove. Accordingly, the petition stands disposed of, so also the pending applications, if any.