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2018 DIGILAW 435 (UTT)

REENU SAINI v. STATE OF UTTARAKHAND

2018-08-29

MANOJ K.TIWARI, RAJIV SHARMA

body2018
JUDGMENT Hon'ble Rajiv Sharma, ACJ (Oral) 1. The petitioner's nephew was a victim of sexual assault, aged about 16 years. The case was registered against respondent No. 5 under the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act") and I.P.C. The First Information Report, bearing FIR No.0351 of 2018 was lodged on 24.07.2018 under Sections 354 and 506 of I.P.C. as well as under Sections 7 & 8 of the POCSO Act against the respondent No. 5. 2. Respondent No. 5 approached this Court by way of WPCRL No.1457 of 2018, wherein, the interim relief was granted to him. Immediately thereafter, he started threatening the victim and her family members. The pressure was mounted on the family to drop the proceedings against him. 3. Respondent No. 4 is the Investigating Officer of the case, who is posted as the Sub-Inspector, Kotwali Gangnahar Roorkee, District Haridwar. According to the averments made in paragraph no.11 of the writ petition, he is also mounting the pressure on victim's family to withdraw the criminal proceedings against the respondent no.5. Resultantly, the petitioner was also constrained to make a representation before the respondent No. 2 i.e. Senior Superintendent of Police, Haridwar on 20.08.2018 seeking protection for her life and liberty. 4. There is a detailed procedure about the manner in which the statement of a child is to be recorded under Chapter VI of the POCSO Act. According to Section 24 of the POCSO Act, (1) the statement of the child is to be recorded at his residence or at a place where he usually resides or at the place of his choice as far as practicable by a woman police officer not below the rank of sub-inspector; (2) the police officer, while recording the statement of a child, shall not be in uniform (3) the police officer making the investigation, shall, while examining the child, ensure that at no point of time the child come in the contact in any way with the accused, (4) No child, for the purpose of recording the statement, can be detained in the police station in the night for any reason and (5) the police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child. 5. 5. According to the averments made in the petition, respondent No. 4 has violated the mandate of Section 24 of POCSO Act. It was incumbent upon the Senior Superintendent of Police, Haridwar to appoint a woman police officer not below the rank of sub-inspector to investigate such a heinous crime. 6. Mr. Ajay Veer Pundir, learned counsel for the petitioner submits that the Investigating Officer i.e. respondent No. 4 has also visited the school of victim. This act of respondent No.4 must have caused tremendous agony & pain to the victim in presence of her schoolmates. It is the mandate of sub-section (5) of Section 24 that the police officer shall ensure that the identity of the child is protected from the public media. 7. Since, in the present case, the respondent No. 4 has visited the school, the identity of the child was not protected from the public gaze. It is a serious dereliction of duty by the respondent No. 4. 8. Section 25 of the POCSO Act provides a detailed procedure in the manner in which the statement of the child is recorded by the Magistrate. There are additional provisions also for recording the statement of the child. 9. Section 27 of the POCSO Act deals with medical examination of the child. 10. Accordingly, with the consent of the parties, the writ petition is disposed of at admission stage itself by issuing the following directions: - A. The Director General of police to the State of Uttarakhand is directed to take the disciplinary action against the respondent No.4 in the manner in which he conducted the investigation of FIR No.0351 of 2018 registered on 24.07.2018 under Sections 354 and 506 of I.P.C. as well as under Sections 7 & 8 of POCSO Act. B. The Director General of Police is also directed to appoint a woman police officer, not below the rank of sub-inspector to undertake further enquiry and investigation in the matter, within 24 hours. The statement of the victim, if not already recorded, shall only be recorded at her house or at any convenient place, as suggested by family/guardian of the victim. C. It is further directed that no child, as defined under POCSO Act, shall be called to any police station throughout the State of Uttarakhand for the purpose of recording his/her statement. The statement of the victim, if not already recorded, shall only be recorded at her house or at any convenient place, as suggested by family/guardian of the victim. C. It is further directed that no child, as defined under POCSO Act, shall be called to any police station throughout the State of Uttarakhand for the purpose of recording his/her statement. The identity of the child shall not be disclosed to any person, including social media, print media, electronic media, whatsapp, tweeter or any other mode, not even in blurred pictures. D. Henceforth, in the cases registered under POCSO Act as well as under Section 376 of I.P.C. or any other sexual offence relating to child/girl, the enquiry/investigation shall be carried out by a woman police officer not below the rank of sub-inspector and the victim shall only be examined by woman doctor, as provided under Section 27 of the POCSO Act. E. The Senior Superintendent of Police, Haridwar is directed to provide necessary/sufficient protection to the life and property of the victim and her close family members forthwith. 11. All pending applications stand disposed of accordingly.