Isabella Mariam

The Gauhati High Court Single Bench of Justice Parthivjyoti Saikia (Single Bench), has directed that the custody of a victim child involved in an ongoing POCSO case be temporarily shifted to her paternal grandmother to facilitate a fair trial. The decision comes in response to a criminal revision petition challenging the order passed by the Special Judge (POCSO), Sonitpur, Tezpur.

The petitioner, the biological father of the victim child, approached the High Court under Sections 397 and 401 of the Criminal Procedure Code, challenging the trial court's order dated 29.09.2022 in Special POCSO Case No.53/2021. The petitioner and Respondent No.2, are estranged and currently undergoing divorce proceedings. Their 12-year-old daughter resides with her mother, Respondent No.2.

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On 11.09.2021, Respondent No.2 lodged a complaint before the police, alleging that on 19.07.2021, the petitioner took their daughter to his mother’s house during the day but later moved her to his rented accommodation, where he allegedly applied talcum powder over her body and touched her inappropriately. The complaint further mentioned that the victim narrated these incidents to her mother on 08.09.2021. Consequently, Tezpur P.S. Case No.1949/2021 was registered under Section 354(A) of the Indian Penal Code and Section 8 of the POCSO Act. A charge sheet has been filed, and the trial is ongoing.

The petitioner previously filed an application before the trial court requesting that his daughter be kept in neutral custody before her examination as a witness, alleging possible tutoring by her mother. The trial court rejected this plea, which led the petitioner to approach the High Court through Criminal Revision Petition No.337/2022. The High Court set aside the earlier rejection, remanding the matter to the trial court for reconsideration. However, on 29.09.2022, the trial court again rejected the petitioner's prayer, stating:

"Considering the best interest of the child that the victim is under the care and custody of her natural guardian, i.e., the mother and also considering Rule Nos. 15 & 16 of Rules for Recording of Vulnerable Witnesses in criminal cases, Notification No.23 dated 5th May, 2022, I am not inclined to appoint any person as guardian ad litem to the victim as the victim is under the care of her mother."

This renewed rejection led to the current criminal revision petition before the High Court.

The Court referred to Rule Nos. 15 and 16 of the guidelines for recording the evidence of vulnerable witnesses, stating the appointment and duties of a guardian ad litem. The guidelines state:

"The court may appoint any person as guardian ad litem as per law to a witness who is a victim of, or a witness to a crime having regard to his best interests after considering the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified."

The duties of a guardian ad litem include attending all depositions and hearings, making welfare recommendations for the child, explaining legal proceedings in understandable terms, assisting the child and family with emotional coping, and remaining with the witness before testimony.

Justice Saikia also cited the Supreme Court decision in Smruti Tukaram Badade v. State of Maharashtra, (2022) 18 SCC 24, which stated:

"The fairness of the process of trial as well as the pursuit of substantive justice are determined in a significant measure by the manner in which statements of vulnerable witnesses are recorded. The dignity of person, which is an intrinsic element of Article 21 of the Constitution, cannot be left to the vagaries of insensitive procedures and a hostile environment."

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Observing the strained relationship between the petitioner and Respondent No.2, and noting that the child maintained a good relationship with her paternal grandmother, the Court recorded:

"There is every possibility of tutoring by the mother. At the time of filing of the FIR, the girl was 12 years old. Now, she must be 16 years old. Undoubtedly, she has a good relationship with her grandmother. She used to stay with her for a long duration of time. In a criminal trial, the court has to think about the victim as well as the accused. The fairness of the process of trial should be the pursuit of the court."

In conclusion, the Court set aside the order dated 29.09.2022 passed by the Special Judge (POCSO), Sonitpur, Tezpur, and issued the following directions:

• "The victim girl shall be given in custody of her grandmother i.e. the mother of her father."

• Both parents are directed to bring the girl from the Respondent No.2’s house and drop her at her grandmother’s residence.

• The petitioner shall bear the transportation expenses.

• The grandmother will bring the child to court for her testimony after spending seven days at her residence.

• During this seven-day period, Respondent No.2 shall not meet or communicate with the child, nor during her transit to the court.

• After recording her evidence, the victim will return to her mother’s custody.

• Both parties are directed to appear before the trial court on 22nd May 2025, with the interim order to stand vacated on that date.

• The trial court is instructed to endeavor to dispose of the matter within three months after 22nd May 2025.

Advocates Representing the Parties

For the Petitioner: Mr. S.K. Singh, Mr. B. Pushilal.

For the Respondents: Mr. B. Sarma, Additional Public Prosecutor, Assam; Ms. BRA Sultana, Legal Aid Counsel

Case Title: XXXXX v. The State of Assam and Anr.

Neutral Citation: 2025: GAU-AS:5642

Case Number: Crl.Rev.P./550/2022

Bench: Justice Parthivjyoti Saikia

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