Minor Child K & Ors. vs State Nct Of Delhi & Ors.
- Court
- Delhi High Court
- Case type
- Criminal Misc Case
- Decided on
- 11-03-2026
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 16.12.2025
Judgment pronounced on: 11.03.2026
Judgment uploaded on: 13.03.2026
+ CRL.M.C. 3880/2025 & CRL.M.A. 16947/2025
MINOR CHILD K & ORS. .....Petitioners
Through: Mr. Nitin Saluja, Ms Nimisha
Menon, Ms Pranya Madan and
Ms Ankita Talukdar, Advs.
versus
STATE NCT OF DELHI & ORS. .....Respondents
Through: Mr. Manoj Pant, APP for the
State along with SI Sonia.
Ms. Prachi Dubey, Amicus
Curiae
CORAM:
HON'BLE DR. JUSTICE SWARANA KANTA SHARMA
J U D G M E N T
Index to the Judgment
FACTUAL BACKGROUND ................................................................... 3
SUBMISSIONS BEFORE THE COURT .............................................. 5
ANALYSIS & FINDINGS .................................................................... 11
A. Vulnerable Witnesses in Criminal Justice System: Scope and Judicial
Approach ............................................................................................................ 11
B. Safeguards under the POCSO Act to Protect Child Victims During
Trial ...................................................................................................................... 18
C. Use of Video Conferencing for Examination of Vulnerable
Witnesses ............................................................................................................. 22
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:13.03.2026
18:22:20
D. Presence of Victim during Bail Hearings in Cases of Sexual
Offences .............................................................................................................. 31
E. Conclusion ................................................................................................... 36
DR. SWARANA KANTA SHARMA, J
1. By way of the present petition, the petitioners have approached
this Court seeking, firstly , the setting aside of the bailable warrants
dated 22.04.2025 issued against petitioner no. 1 in SC Case No. 622
of 2022, by the learned ASJ (SC-POCSO), South East, Saket Courts,
Delhi [hereafter ‗ Trial Court ‘]. The petitioners, in prayer (b), have
also prayed that appropriate directions be issued to the learned Trial
Courts to ensure strict compliance with the principles laid down by
the Coordinate Bench of this Court in XXXX v. State: Crl.A.
198/2020 (order dated 11.01.2023) as well as the guidelines framed
by the Hon‘ble Supreme Court in Smruti Tukaram Badade v. State
of Maharashtra: (2022) 18 SCC 24 , and the judgment of the
Coordinate Bench in Vikas v. State of Delhi: 2020:DHC:3058 ,
particularly with regard to safeguarding the interests of child victims
during trial. In addition, by virtue of prayer (c), the petitioners pray
for passing of further directions/guidelines that in proceedings under
the Protection of Children from Sexual Offences Act, 2012 [hereafter
‗ POCSO Act ‘], where repeated adjournments sought by the accused
or their counsel delay the examination of minor victims, the learned
Trial Courts may permit the cross-examination of such victims to be
conducted through video-conferencing.
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:13.03.2026
18:22:20
FACTUAL BACKGROUND
2. The brief facts of the case, as set out in the petition, are that on
06.08.2022, a missing complaint was lodged at the Police Station
(P.S.) Defence Colony by Mr. S.K., the father of petitioner no. 1,
along with Ms. B.K., the grandmother of petitioner no. 3, and Ms.
S.P., the sister of petitioner no. 2. It was reported that the three
petitioners, who are minor girls, had gone missing. On the basis of
the said complaint, the FIR bearing no. 153/2022 was registered
under Section 363 of the Indian Penal Code, 1860 [hereafter ‗ IPC ‘].
It is stated that on 08.08.2022, the three missing minor girls were
traced at P.S. Karol Bagh and were thereafter brought to P.S. Defence
Colony. Their statements under Section 161 of the Code of Criminal
Procedure, 1973 [hereafter ‗ Cr.P.C. ‘] were recorded at P.S. Defence
Colony on 09.08.2022 and 10.08.2022. In these statements, it was
disclosed that the minor children had allegedly been repeatedly
sexually abused, assaulted and criminally threatened by five accused
persons over a period of two days. At the relevant time, all the three
children were about 15 years of age. Consequent to these statements
made by the petitioners on 09.08.2022 and 10.08.2022, offences
under Sections 342, 328, 366A, 370, 376, 506 and 120B of the IPC,
as well as Section 6 of the POCSO Act, were added to the FIR.
Thereafter, the statements of the petitioners were also recorded under
Section 164 of the Cr.P.C. on 10.08.2022. In their statements, the
petitioners stated that on 06.08.2022 and 07.08.2022 they had been
sexually assaulted by respondent nos. 5 and 6 and were criminally
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:13.03.2026
18:22:20
threatened by respondent no. 4. In their respective statements, all
three minor victims narrated the incidents, and it is stated that their
versions broadly corroborated each other.
3. As noted above, the present petition was filed inter alia
challenging the order dated 22.04.2025 passed by the learned Trial
Court, by way of which bailable warrants in the sum of 75,000/- were
issued against petitioner no. 1, who is one of the minor victims and a
prosecution witness (PW-2). Before proceeding further , it is pertinent
to note that vide order dated 28.05.2025, this Court had allowed
prayer (a) and set aside the bailable warrants issued against the
petitioner no. 1. However, the matter was thereafter taken up in
respect of other prayers.
4. Apart from seeking quashing of the aforesaid bailable
warrants, the petitioners have also prayed that this Court issue
appropriate directions to ensure compliance with the ratio laid down
by the Coordinate Bench of this Court in XXXX v. State (supra) ,
particularly with regard to limiting and minimizing the presence of
child victims during court proceedings, as well as the guidelines
framed by the Hon‘ble Supreme Court and this Court with regard to
safeguarding the interests of child victims during trial.
5. On 04.08.2025, this Court had appointed Ms. Prachi Dubey,
Advocate as Amicus Curiae to assist the court on prayers (b) and (c)
sought by the petitioners.
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:13.03.2026
18:22:20
SUBMISSIONS BEFORE THE COURT
6. The learned counsel appearing for the petitioners submits that
the petitioners were minor girls aged about 15 years at the time of the
alleged incident and had allegedly been subjected to sexual abuse and
criminal intimidation by the accused persons during the period
between 06.08.2022 and 08.08.2022. It is submitted that pursuant to
investigation, a chargesheet was filed on 01.09.2022 against
respondent nos. 2 to 5, followed by a supplementary chargesheet
dated 02.02.2023 against respondent no. 6. Thereafter, charges under
the IPC and the POCSO Act were framed against respondent nos. 2
to 6 on 19.10.2023. It is further submitted that after the framing of
charges, the petitioners were repeatedly summoned by the Trial Court
for the purpose of recording their evidence. In this regard, it is stated
that petitioner no. 1 was summoned on nine occasions, petitioner no.
2 on four occasions, and petitioner no. 3 on six occasions before their
testimonies could ultimately be recorded and concluded. The learned
counsel submits that such repeated summoning of the minor victims
caused considerable distress to them. The learned counsel also
submits that the Trial Court had insisted upon the presence of the
petitioners, either physically or through virtual mode, on several
occasions even during the hearing of bail applications moved on
behalf of the accused persons, despite the petitioners being
represented through counsel. It is contended that the accused persons
had repeatedly moved bail applications which were thereafter
withdrawn, resulting in the child victims being required to appear
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Signature Not Verified
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By:ZEENAT PRAVEEN
Signing Date:13.03.2026
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before the Court on multiple occasions. It is further submitted that
vide the impugned order dated 22.04.2025, the Trial Court dismissed
an application seeking exemption on behalf of petitioner no. 1 and
issued bailable warrants in the sum of ₹5,000/- against her, despite it
being brought to the notice of the Court that she was not in a proper
mental and emotional condition to depose, which order was
subsequently set aside by this Court on 28.05.2025. It is also pointed
out that the testimonies of all three child victims were eventually
recorded and concluded only after a considerable period from the
date when they were first summoned. The learned counsel for the
petitioners further submits that the learned Trial Court failed to
adhere to the safeguards laid down by the Hon‘ble Supreme Court in
Smruti Tukaram Badade v. State of Maharashtra (supra) as well as
the Guidelines for Recording of Evidence of Vulnerable Witnesses in
Criminal Matters, 2024 issued by this Court. It is also contended that
the repeated summoning of the child victims, including during bail
proceedings, was contrary to the ratio laid down by the Coordinate
Bench in XXXX v. State (supra)
7. The learned counsel appearing for the petitioners has also
placed certain suggestions before this Court with regard to
strengthening the manner in which evidence of child victims is
recorded in cases under the POCSO Act. It is submitted that despite
the object of the POCSO Act to ensure a child-friendly and dignified
process, certain systemic issues continue to persist, such as lack of
uniform procedures for examination of child victims, repeated
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Signature Not Verified
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adjournments resulting in re-traumatisation, and absence of effective
accountability where child victims are summoned repeatedly. In this
context, the learned counsel has suggested that at the stage of
cognizance or framing of charge, the Special Courts may pass a
POCSO Witness Schedule Order, fixing in advance the dates for
examination and cross-examination of the child victim and other
vulnerable witnesses so that their evidence can be planned and
recorded in a structured manner. It is further suggested that the
testimony of child victims should be completed on proximate and
sequential dates, preferably over consecutive days or within a short
span, so as to avoid repeated court appearances and prolonged
exposure of the child to the trial process. The learned counsel has
also submitted that there should be strict restriction on repeated
summoning of child victims, particularly after their testimony has
been recorded, and their personal presence during interlocutory
proceedings such as bail hearings should ordinarily not be insisted
upon where they are represented through counsel or guardian, in line
with the ratio laid down in XXXX v. State (supra). Another
suggestion placed before this Court relates to psychosocial safeguards
for child victims, including liberal consideration of exemption
requests during periods of examinations, medical treatment or
psychological distress, and consultation with the support person
before requiring the child to appear. It is also suggested that delays
and adjournment requests by the defence should be strictly regulated,
and where repeated adjournments lead to delay in cross-examination
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:13.03.2026
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of a child witness, appropriate measures may be adopted, including
closing the opportunity for cross-examination or permitting such
cross-examination through video conferencing or at a Vulnerable
Witness Deposition Centre. Lastly, the learned counsel has suggested
the creation of a system of documentation and monitoring, including
maintenance of a witness-tracking sheet in each POCSO case and
periodic reporting or compliance mechanisms to ensure adherence to
the safeguards envisaged under Sections 33(5) and 35 of the POCSO
Act.
8. The learned Amicus Curiae has also assisted this Court and has
placed on record detailed written submissions, along with several
suggestions and proposed procedural safeguards concerning the
examination of vulnerable witnesses in cases under the POCSO Act.
The said submissions and suggestions have been perused by this
Court. The learned Amicus Curiae submits that the protection of
children within the criminal justice process flows from the
constitutional guarantees under Articles 14, 15(3), 21 and 39(f) of the
Constitution of India. It is submitted that the framework laid down by
the Hon‘ble Supreme Court in Smruti Tukaram Badade v. State of
Maharashtra (supra) and the judgment of this Court in Vikas v.
State (supra) emphasise that the criminal process must ensure that
child victims are protected from secondary victimisation while at the
same time preserving the right of the accused to a fair trial. It is
further submitted that while several High Courts have framed
guidelines for examination of vulnerable witnesses, the
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Signature Not Verified
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Signing Date:13.03.2026
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implementation of such mechanisms remains uneven, and therefore
there is a need for uniform procedural standards.
9. The learned Amicus Curiae has particularly emphasised the
importance of establishing and operationalising Vulnerable Witness
Deposition Centres (VWDCs) in every district. It is submitted that
such centres should provide a safe and child-friendly environment for
recording the testimony of vulnerable witnesses through video-link
facilities, with appropriate infrastructure, trained personnel and
counselling support. According to the learned Amicus Curiae, the
testimony of child victims should ordinarily be recorded through
video-conferencing from such centres, so that their physical presence
in open court can be avoided as far as possible. It is also suggested
that the trial court may undertake certain pre-trial management
measures, such as holding a pre-trial conference to determine the
mode and schedule of testimony, conducting a brief psychological
assessment of the child through a trained counsellor, and arranging an
orientation session for the child to familiarise them with the process
before the recording of evidence. With regard to the recording of
evidence, the learned Amicus Curiae submits that if a properly video-
recorded statement under Section 164 of the Cr.P.C. is made
available, it may be considered as the examination-in-chief of the
child, while preserving the right of the accused to cross-examine the
witness. It is suggested that the evidence of the child should be
recorded through secure video-link systems, with appropriate
safeguards relating to recording, storage and chain of custody of such
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:13.03.2026
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electronic evidence. The learned Amicus Curiae has further
submitted that the mode of cross-examination of child witnesses may
be suitably regulated. It is suggested that cross-examination may,
where necessary, be conducted through an intermediary or with the
assistance of the presiding judge, and that questions intended to be
put to the child may be filed in advance so that the Court can ensure
that irrelevant or harassing questions are not asked. It is also
suggested that the duration and number of sessions for cross-
examination may be suitably regulated to prevent undue stress to the
child. Another aspect highlighted by the learned Amicus Curiae
concerns the recall of child witnesses under Section 311 of the
Cr.P.C. It is submitted that such recall should be treated as an
exceptional measure and permitted only when the Court is satisfied
that it is essential for a just decision of the case and cannot be
achieved through less intrusive alternatives such as video-link
questioning or reliance on previously recorded evidence. In
conclusion, the learned Amicus Curiae has suggested that this Court
may consider issuing appropriate practice directions or a Standard
Operating Procedure for all Special Courts dealing with cases under
the POCSO Act in the National Capital Territory of Delhi.
10. This Court has heard and considered the submissions made
before this Court by the learned counsel for the petitioners as well as
the learned Amicus Curiae.
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Signature Not Verified
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:13.03.2026
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ANALYSIS & FINDINGS
11. The criminal justice system has, over time, increasingly
recognised that certain witnesses, particularly victims of sexual
offences and children, require special procedural protection while
participating in the court proceedings. The concept of a ―vulnerable
witness‖ has evolved through judicial pronouncements which
acknowledge that the ordinary processes of a criminal trial may cause
intimidation, embarrassment or psychological distress to such
witnesses.
A. Vulnerable Witnesses in Criminal Justice System: Scope and
Judicial Approach
12. One of the early judicial recognitions of this concern came in
the case of State of Punjab v. Gurmit Singh: (1996) 2 SCC 384 ,
where the Hon‘ble Supreme Court emphasised that trials of rape
cases must ordinarily be conducted in camera in terms of Section 327
of the Cr.P.C. It was highlighted that such proceedings help create a
more comfortable and dignified environment for the victim to depose
and reduce the embarrassment that may arise from testifying in open
court. The Hon‘ble Supreme Court had also stressed the importance
of protecting the identity of victims of sexual offences and ensuring
that court procedures do not aggravate their trauma. The Hon‘ble
Supreme Court further developed these principles in Sakshi v. Union
of India: (2004) 5 SCC 518 , where it recognised that the process of
giving evidence in cases of sexual assault and child abuse must be
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Signing Date:13.03.2026
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made sensitive to the psychological state of the victim. It was
observed that mere presence of the accused in full view may induce
fear in the mind of the victim and hamper truthful testimony. In view
thereof, the Hon‘ble Supreme Court had issued certain directions to
ensure a child-friendly procedure during trial, including that: (i)
appropriate arrangements such as screens may be used so that the
victim or vulnerable witness does not have to directly face the
accused while giving evidence; (ii) questions in cross-examination
may, where necessary, be given in writing and put to the witness by
the presiding judge in appropriate language; and (iii) sufficient breaks
should be allowed to the victim while recording testimony.
13. Subsequently, in State of Maharashtra v. Bandu @ Daulat:
(2018) 11 SCC 163 , the Hon‘ble Supreme Court took note of the
mechanism developed by the Delhi High Court for recording the
testimony of vulnerable witnesses and endorsed the need for
establishing special centres for examination of vulnerable witnesses.
The Supreme Court noted that such facilities would provide a
conducive environment for vulnerable witnesses to depose and
directed the High Courts across the country to consider adopting
similar mechanisms and to take steps towards establishing such
centres in their respective jurisdictions.
14. A significant advancement in this area came with the decision
of the Hon‘ble Supreme Court in Smruti Tukaram Badade v. State
of Maharashtra: (2022) 18 SCC 24 . In the said decision, it was
emphasised that there was a need for creating a supportive
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environment for recording the testimonies of vulnerable witnesses.
The Supreme Court also expanded the scope of the term ―vulnerable
witness‖ and held that it is not confined to children alone but may
include victims of sexual offences, persons suffering from mental
illness, individuals with disabilities, witnesses facing threat
perception under the Witness Protection Scheme, and any other
witness who may be considered vulnerable by the court. The Court
further directed all High Courts to adopt and notify schemes for
establishing Vulnerable Witness Deposition Centres (VWDCs) so as
to facilitate safe and sensitive recording of evidence of such
witnesses. It was inter alia held as under:
―3. 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. Access to
justice mandates that positive steps have to be adopted to create
a barrier free environment. These barriers are not only those
which exist within the physical spaces of conventional courts
but those which operate on the minds and personality of
vulnerable witnesses. There is a pressing need to facilitate the
salutary purpose underlying the creation of a barrier free
environment where depositions can be recorded freely without
constraining limitations, both physical and emotional. This
requires not just the creation of infrastructure but sensitizing all
stakeholders.
4. This Court issued notice to all the High Courts in pursuance
of which they have appeared through Counsel. Based on the
material which has been placed before the Court, Ms. Vibha
Datta Makhija, amicus curiae, has prepared a tabulated
statement of the position of infrastructure in various High
Courts as of 25 October 2021. A copy of the tabulated
statement is annexed as a broad indicator at Annexure ‗A‘ to
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Signature Not Verified
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By:ZEENAT PRAVEEN
Signing Date:13.03.2026
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this order. Based on the deliberations which have taken place
during the course of proceedings in the Court, the suggestions
which have been proposed by the amicus curiae and the
responses of some of the Counsel who have appeared on behalf
of the High Courts, the following directions are issued under
Article 142 of the Constitution in furtherance of the earlier
decisions of this Court. These are intended to facilitate the
implementation of the directions which were rendered on 24
October 2017 in Bandu (supra) and earlier in other decisions.
5. The directions are enumerated below:
(i) The definition of ―vulnerable witness‖ contained in Clause
3(a) of the ‗Guidelines for recording evidence of vulnerable
witnesses in criminal matters‘ of the High Court of Delhi shall
not be limited only to child witnesses who have attained the
age of 18 years and should be expanded to include, inter alia,
the following categories of vulnerable witnesses:
(a) Age neutral victims of sexual assault read with Sections
273 and 327 of the Code of Criminal Procedure 1973 and
Section 354 of the Penal Code, 1860;
(b) Gender neutral victims of sexual assault read with
Section 2(d) of the Protection of Children from Sexual
Offences Act, 2012;
(c) Age and gender neutral victims of sexual assault under
Section 377 of the Penal Code, 1860read with paragraph
34(1) of the decision in Sakshi (supra);
(d) Witnesses suffering from ―mental illness‖ as defined
under Section 2(s) of the Mental Healthcare Act, 2017 read
with Section 118 of the Indian Evidence Act, 1872;
(e) Any witness deemed to have a threat perception under
the Witness Protection Scheme 2018 of the Union
Government as approved by this Court in Mahender
Chawla v. Union of India ;
(f) Any speech or hearing impaired individual or a person
suffering from any other disability who is considered to be
a vulnerable witness by the competent court; and
(g) Any other witness deemed to be vulnerable by the
concerned court.
(ii) The High Courts shall adopt and notify a Vulnerable
Witnesses Deposition Centres Scheme within a period of two
months from the date of this order unless a scheme is already
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notified. The High Courts which already have existing VWDC
Schemes in place may consider making suitable modifications
in conformity with the guidelines which are indicated in the
present order. In formulating the VWDC Scheme, the High
Courts shall have due regard to the scheme which has been
formulated by the High Court of Delhi, which has been duly
approved in the judgment of this Court in Bandu (supra);
(iii) Every High Court should set up an in-house permanent
VWDC Committee for continuously supervising the
implementation of the present directions and making a periodic
assessment of the number of VWDCs required in each district
proportionate to the time required for recording evidence of
vulnerable witnesses and to coordinate the conduct of periodic
training programmes;
(iv) Every High Court is requested to make an estimation of
costs towards manpower and infrastructure required to set up at
least one permanent VWDC in every establishment of the
District Court (or additional Sessions Court establishments)
and estimate the optimal number of VWDCs required for the
entire State within a period of three months;
(v) Having due regard to the importance of conducting periodic
training programmes for manning and managing the VWDCs
and sensitizing all stake holders, including judicial officers,
members of the Bar and the staff of the court establishment, we
constitute a Committee chaired by Justice Ms. Gita Mittal,
former Chief Justice of the Jammu and Kashmir High Court.
The Committee shall devise and implement an All India
VWDC Training Programme, besides engaging with the High
Courts on the creation of infrastructure for VWDCs. The initial
tenure of the Chairperson shall be for a period of two years. All
High Courts or concerned role assignees shall facilitate and
give full cooperation in conducting training programmes in
terms of the module which may be prepared by the
Chairperson;
(vi) Upon the estimation of costs prepared by the VWDC
Committee of each High Court, the State Government shall
expeditiously sanction the requisite funds within a period of
three months from the date of the submission of the proposal or
the end of the financial year, whichever is earlier, and disburse
the funds to the High Court in accordance with the project plan.
The State Government shall nominate a nodal officer of the
Finance Department who shall be associated ex officio with the
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work of the VWDC Committee of the High Court, to facilitate
the implementation of the proposal submitted by the High
Court in terms of these directions;
(vii) The High Courts shall ensure that at least one permanent
VWDC is set up in every District Court establishment (or
additional Sessions Court establishments) within a period of
four months. The Registrars General of the High Courts shall
file compliance reports before this Court;
(viii) In many States, ADR Centres have been set up by the
High Courts in close proximity to the court establishments in
the districts. Where such ADR Centres are in place, the High
Courts would be at liberty to ensure that the VWDC is made
available within the premises of the ADR Centre so as to
secure a safe, conducive and barrier free environment for
recording the depositions of vulnerable witnesses;
(ix) The National Legal Services Authority as well as the State
Legal Services Authorities have a vital stake and role,
particularly in devising and implementing sensitization and
training programmes. The Chairperson of the Committee
appointed by this Court is requested to engage with NALSA
and SLSAs (subject to the directions which may be issued by
the Hon'ble Executive Chairperson of NALSA) so as to
provide an effective interface for implementing the scheme for
training;
(x) The Hon'ble Chief Justices of the High Courts would be at
liberty to take all appropriate steps either on the administrative
side or on the judicial side in furtherance of the present
directions and to monitor compliance on a periodic basis;
(xi) The Chief Justice of the High Court of Delhi is requested
to make available a work space/room for the office of the
VDWC Committee Training Centre and requisite staff,
preferably personnel who have previously assisted in the
development and implementation of the Training Modules of
the Delhi High Court and to designate a Coordinator of the
programme in consultation with the Chairperson. Appropriate
secretarial and logistical support staff and equipment may be
made available to the Committee on a reasonable remuneration
as fixed by the Chairperson. The expenses in that regard,
including the honorarium payable to the Chairperson shall be
defrayed by the Ministry of Women and Child Development to
the Director of the Delhi Judicial Academy. The Chairperson
may fix a reasonable honorarium for the work assigned to her
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under the terms of this order. In the event that any further
directions are necessary, the Chairperson may seek them before
this Court and any communication in that regard shall be
placed for further directions; and
(xii) The Ministry of Women and Child Development of the
Union Government shall designate a nodal officer for
coordinating the implementation of these directions and for
providing all logistical support to Justice Ms. Gita Mittal, the
Chairperson of the Committee appointed by this Court. This
would include the payment of honorarium to the Chairperson
in terms as fixed by the Chairperson and meeting the expenses,
including those towards engaging domain experts for training
programmes. The Union Ministry of Women and Child
Development and all Ministries of Women and Child
Development in the States shall coordinate with the
Chairperson and extend logistical support. The High Courts
shall, in consultation with the Chairperson of the Committee,
enlist experts in the field to facilitate proper training and
development of all stake holders…‖
15. Taking note of the directions issued by the Hon‘ble Supreme
Court in Smruti Tukaram Badade v. State of Maharashtra (supra) ,
and drawing upon the earlier ‗Guidelines for Recording of Evidence
of Vulnerable Witnesses in Criminal Matters‘ prepared by this Court,
the Protocol for Recording Evidence of Vulnerable Witnesses
notified by the High Court of Jammu and Kashmir, as well as
relevant statutory provisions, judicial precedents and international
standards relating to vulnerable witnesses, this Court framed the
‘Guidelines of the High Court of Delhi for Recording of Evidence
of Vulnerable Witnesses, 2024’ to streamline and strengthen the
procedure for recording the testimony of such witnesses.
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B. Safeguards under the POCSO Act to Protect Child Victims
During Trial
16. The POCSO Act contains several provisions intended to ensure
that the participation of a child victim in the criminal trial does not
result in further trauma. Section 33(5) of the POCSO Act mandates
that the Special Court shall ensure that the child is not called
repeatedly to testify in court. The purpose of this provision is to
protect the child from the psychological stress of narrating the same
traumatic incident multiple times during the course of trial.
17. Further, Section 35 of the POCSO Act prescribes timelines for
recording of evidence and disposal of cases. Sub-section (1) provides
that the evidence of the child shall be recorded within thirty days
from the date of taking cognizance , and if there is any delay, reasons
must be recorded by the Special Court. Sub-section (2) further
provides that the trial should, as far as possible, be completed within
one year from the date of taking cognizance . These provisions reflect
the legislative intent that trials involving child victims must proceed
expeditiously so that the child is not subjected to prolonged
participation in criminal proceedings.
18. Similarly, Section 36 of the POCSO Act ensures that the child
is not exposed to the accused while giving testimony. The provision
requires the Special Court to adopt suitable arrangements so that the
child can depose in a safe environment without directly confronting
the accused, while at the same time ensuring that the accused is able
to hear the testimony and communicate with his advocate. For this
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purpose, the Special Court may utilise mechanisms such as video-
conferencing, screens, mirrors, curtains or other protective devices.
The intent of this provision is to reduce fear and intimidation that
may be experienced by a child witness during testimony.
19. Now, insofar as Section 33(5) of the POCSO Act is concerned,
it is pertinent to note that the Hon‘ble Supreme Court in Madhan
Chandra Pradhan & Ors. v. State of Odisha: (SLP (Crl.) No. 10082
of 2024) has reiterated that the provision casts a duty upon the
Special Court to ensure that a child is not repeatedly called to testify
before the court. It has been observed that the legislative intent
behind this provision is clear, i.e., to ensure that a child who has
already undergone the trauma of sexual assault is not compelled to
repeatedly narrate the same incident during the course of the trial.
20. The emphasis of the learned counsel for the petitioners has also
been on the decision rendered by the Coordinate Bench of this Court
in Vikas v. State (supra) . In the said decision, it has been inter alia
held as under:
―25. In the light of the aforesaid judgement I may state at the
cost of repetition that no doubt Section 311 Cr.P.C. gives the
power to the Court to recall any witness to serve the ends of
justice, however, the said Section in my view would be subject
to Section 33 (5) of POCSO Act on the principle of generalia
specialibus non-derogant. As held by the Trial Court and
rightly so, the child victim was extensively examined for
several hours and any recall at this stage would fall foul of the
provisions of Section 33 (5) and the intent behind enacting the
Section. It is equally true that Courts have to balance the
conflicting rights and claims and do substantial justice by
permitting the Accused to cross-examine in a given case but
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the Court cannot lose site of the facts of the present case which
are different inasmuch as even after extensive cross-
examination the counsel for the Petitioner did not elicit which
according to him he now wants to ask in cross-examination.‖
21. Thus, the Bench observed that although Section 311 of the
Cr.P.C. empowers the court to recall a witness in order to arrive at a
just decision, the exercise of such power must be harmonised with
the mandate of Section 33(5) of the POCSO Act. Applying the
principle of generalia specialibus non derogant , it was held that the
special protection granted under the POCSO Act must prevail, and
once the child witness has been extensively examined, recall of the
witness should not ordinarily be permitted if it would defeat the very
object of Section 33(5).
22. Similarly, this Bench in Rakesh v. State (NCT of Delhi) : 2023
SCC OnLine Del 4774 , had observed that while the restriction
contained in Section 33(5) may not be absolute and must be balanced
with the power of the court under Section 311 of the Cr.P.C., the
discretion to recall a child witness must be exercised with
circumspection, caution and utmost sensitivity. It was observed as
under:
―10. While the bar under Section 33(5) POCSO Act may not be
absolute and balance of rights needs to be maintained under
Section 33(5) of POCSO Act and Section 311 of Cr. P.C., at
the same time, the Court's discretion in exercising its power to
re-summon a witness for cross-examination has to be exercised
with circumspection, caution and utmost sensitivity. The
crucial word used in Section 33(5) of POCSO Act is ―called
repeatedly‖. This Section thus has to be interpreted to balance
and applied with the right under Section 311 Cr. P.C. of
accused and right to fair trial of an accused depending on facts
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and circumstances of each case.‖
23. Thus, the consistent position emerging from the statutory
scheme and judicial precedents is that a child witness should not be
summoned repeatedly to testify before the court. While the power to
recall a witness under Section 311 of the Cr.P.C. is available, such
power must be exercised sparingly and strictly in accordance with
law. In that regard, no additional directions are required to be issued
by this Court , as all Trial Courts are already bound to follow the
statutory mandate and the principles laid down in the aforesaid
judicial decisions.
24. At the same time, this Court finds it apposite to emphasize that
the mandate of Section 33(5) of POCSO Act must also be kept in
mind while summoning the child victim for the purpose of recording
examination-in-chief or cross-examination. Even at this stage, the
child should not be required to appear before the court repeatedly on
multiple dates without effective progress in the recording of
evidence. The timelines prescribed under Section 35 of the POCSO
Act clearly indicate that the recording of the child‘s evidence must be
treated as a time-bound and priority exercise.
25. In this context, the attention of this Court was drawn to the
facts of the present case, wherein the petitioners were first summoned
to depose in December 2023. It was submitted that thereafter, till the
filing of the present petition in May 2025, petitioner no. 1 had been
summoned on nine occasions, petitioner no. 2 on four occasions, and
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petitioner no. 3 on six occasions solely for the purpose of recording
their testimony. However, for one reason or the other, their evidence
could not be recorded fully on each of those dates, resulting in
repeated appearances of the child victims before the Trial Court. It
was also pointed out that the victims were experiencing distress and
trauma due to repeated court appearances and had conveyed the same
to their respective support persons, expressing reluctance to visit the
court again.
26. Therefore , in light of the abovesaid, this Court is of the
considered opinion whenever the child victim is summoned for
recording of testimony, the Special Court should endeavour to fix
specific dates and ensure that the necessary arrangements are in place
so that the examination-in-chief and cross-examination are conducted
without unnecessary adjournments. This would ensure compliance
with the legislative intent of the POCSO Act and prevent avoidable
hardship to the child witness.
C. Use of Video Conferencing for Examination of Vulnerable
Witnesses
27. The issue of recording testimony of vulnerable witnesses
through video-conferencing or other protective arrangements must
also be examined in light of the existing framework already in place.
As noted above, pursuant to the directions of the Hon‘ble Supreme
Court in Smruti Tukaram Badade v. State of Maharashtra (supra) ,
this Court has framed the ‗Guidelines of the High Court of Delhi for
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Recording of Evidence of Vulnerable Witnesses, 2024‘. These
Guidelines provide a comprehensive procedure to ensure that
vulnerable witnesses, including child victims, are able to depose in a
safe and supportive environment.
28. The said Guidelines recognise that the recording of testimony
need not always take place through the conventional method of a
witness physically appearing in the courtroom. In this regard, the
Guidelines define the concept of a ― live link ‖, which includes the use
of audio-video electronic means or other technological arrangements
whereby a witness, while not physically present in the courtroom, can
still give evidence and be cross-examined through remote
communication. The Guidelines also recognise the use of various
testimonial aids , such as screens, single-visibility mirrors, curtains,
live links and other technological devices, to ensure that the
vulnerable witness is able to depose without fear or intimidation. The
Guidelines further provide for certain pre-trial measures intended to
reduce anxiety and trauma for vulnerable witnesses. These include
allowing such witnesses to undertake a pre-trial visit to the court
premises along with a support person or para-legal volunteer, so that
they may familiarise themselves with the courtroom environment,
understand the basic court procedure, and become aware of the
protective measures available to them. Such measures are intended to
help the witness feel more comfortable and prepared before their
testimony is recorded.
29. Insofar as the recording of evidence through video-link is
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concerned, the Guidelines specifically permit any party, the
prosecutor, or the guardian of the vulnerable witness to apply for an
order that the testimony be recorded from a room outside the
courtroom and transmitted to the courtroom through live-link
television or other technological means. The court may also pass such
directions on its own motion where it considers it appropriate for the
protection of the witness. While considering such a request, the court
is required to take into account various factors including the age and
mental condition of the witness, the likelihood of trauma if the
witness is required to testify in the presence of the accused, the nature
of the offence, the relationship between the witness and the accused,
and the wishes of the vulnerable witness regarding the manner in
which the testimony should be recorded.
30. For reference, the relevant guidelines are set out below:
― 3. Definitions -
x x x
j. Live Link – ‗Live link‘ means and includes a live television
link, audio-video electronic means or other arrangement
whereby a witness, while not being physically present in the
courtroom is nevertheless present in the courtroom by remote
communication using technology to give evidence and be
cross-examined
x x x
l. Testimonial Aids – means and includes screens; single
visibility mirrors, curtains, live links, image and/or voice
altering devices; or any other technical devices, facilities and
equipment.
*
10. Pre-trial visit of Witnesses to the Court -
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Vulnerable witnesses shall be allowed a pre-trial court house
tour or tour of the civil court or Juvenile Justice Board, etc.,
along with the support person or para-legal volunteer, as the
case may be, to enable such witnesses to familiarise
themselves with the layout, and may include visit to and
explanation of the following:
a. the location of the accused in the dock;
b. court officials (what their roles are and where they sit);
c. who else might be in the court;
d. the location of the witness box;
e. a run-through of basic court procedure;
f. the facilities available in the court which may include the
waiting room, toilet, separate passage for entry and exit, and
testimonial aids;
g. discussion of any particular fears or concerns, including
concerns regarding safety in relation to the accused, with the
support person, prosecutors and the judge to dispel the fear,
trauma and anxiety in connection with the upcoming deposition
at court;
h. demonstration of any special measures applied for and/or
granted, for example practising on the live link and explaining
who will be able to see them in the courtroom, and showing
the use of screens (where it is practical and convenient to do
so).
*
20. Live-link television testimony in criminal cases where
the vulnerable witness is involved –
(i) Any party in the case, the prosecutor, counsel or the
guardian ad litem may apply for an order that the testimony of
the vulnerable witness be taken in a room outside the
courtroom and be televised to the courtroom by live-link
television.
(ii) In order to take a decision of usage of a live-link the judge
may question the vulnerable witness in chambers, or in some
comfortable place other than the courtroom, in the presence of
the support person, guardian ad litem, prosecutor, and counsel
for the parties. The questions of the judge shall not be related
to the issues at trial but to the feelings of the vulnerable witness
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about testifying in the courtroom.
(iii) The court on its own motion, if deemed appropriate, may
pass orders in terms of (i) or any other suitable directions for
recording the evidence of a vulnerable witness.
*
22. Factors to be considered while considering the
application under Guidelines-
(i) The court may order that the testimony of the vulnerable
witness be taken by live- link television if there is a substantial
likelihood that the vulnerable witness would not provide a full
and candid account of the evidence if required to testify in the
presence of the accused/opposite party, their counsel or the
prosecutor as the case may be or if the vulnerable witness is
likely to be traumatised by exposure to the accused.
(ii) The order granting or denying the use of live-link television
shall state the reasons therefore and may consider the
following:
a. the age and level of development of the vulnerable witness;
b. the physical and mental health, including any intellectual or
physical disability of the vulnerable witness;
c. any physical, emotional, or psychological harm related to the
case on hand or trauma experienced by the vulnerable witness;
d. the nature of the alleged offence/case and circumstances of
its commission;
e. any threats against the vulnerable witness;
f. the relationship of the vulnerable witness with the accused or
adverse party;
g. the reaction of the vulnerable witness to any prior encounters
with the accused/opposite party in court or elsewhere;
h. the reaction of the vulnerable witness prior to trial when the
topic of testifying was discussed by parents or professionals;
i. specific symptoms of stress exhibited by the vulnerable
witness in the days prior to testifying;
j. testimony of expert or lay witnesses; k. the custodial
situation of the child and the attitude of the members of the
child‘s family regarding the events about which the child will
testify;
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l. the wishes of the vulnerable witness on the manner in which
they would like to render the testimony; and
m. other relevant factors, such as court atmosphere and
formalities of court procedure.
(iii) The court shall ensure ahead of time that the equipment is
working, recordings can be played and that camera angles will
not permit the witness to see the defendant. The court shall not
wait until the victim or vulnerable witness is in the live link
room to run checks: delays and malfunctions can be disruptive
to the vulnerable witness. Where a live link is being used
during the vulnerable witness‘s testimony, ensure that they are
able to see all of the questioner‘s face. It should be explained
that the judge or magistrates can always see the vulnerable
witness over the live video link even when the witness cannot
see the judge or magistrates.‖
31. The statutory scheme under the POCSO Act also reflects a
similar legislative intent. Section 36 of the POCSO Act mandates that
the Special Court shall ensure that the child is not exposed to the
accused while giving testimony. At the same time, the provision
ensures that the accused is able to hear the statement of the child and
communicate with his advocate. For achieving this purpose, Section
36 specifically permits the use of video-conferencing, single-
visibility mirrors, curtains or other suitable devices so that the child
can depose without being directly confronted with the accused.
32. Thus, both the statutory framework under the POCSO Act and
the Guidelines framed by this Court recognise that the use of
technology and protective arrangements is an important tool to ensure
that the testimony of vulnerable witnesses is recorded in a manner
that is both – fair to the accused and sensitive to the needs of the
victim .
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33. It may also be noted that even prior to the framing of detailed
guidelines regarding vulnerable witnesses, courts in India have, in
appropriate cases, permitted the testimony of victims of sexual
offences to be recorded through video-conferencing, particularly
where the victim was residing outside the jurisdiction of the court.
The law in this regard has gradually evolved through judicial
precedents recognising that technological means can be used for
recording evidence without compromising the rights of the accused
or the fairness of the trial.
34. In Vinod Kumar v. State (NCT of Delhi): 2023 SCC OnLine
Del 8287, this Bench had permitted the testimony of a prosecutrix,
who was a citizen of the United States of America, to be recorded
through video-conferencing. While allowing the said request, this
Court had examined the legal position relating to recording of
evidence through video-conferencing and referred to relevant
precedents of the Hon‘ble Supreme Court, including State of
Maharashtra v. Dr. Praful B. Desai: (2003) 4 SCC 601 wherein it
was held that recording of evidence through video-conferencing
satisfies the requirement of Section 273 of the Cr.P.C., which
mandates that evidence must be recorded in the presence of the
accused; that the video-conferencing enables the parties to see and
hear each other in real time and allows the accused and his counsel to
effectively cross-examine the witness; and that technological
advancements have made it possible for courts to record evidence
through such means without causing prejudice to the accused, and
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that the demeanour of the witness can also be observed when the
testimony is recorded through video-conferencing.
35. This Court had also observed in the aforesaid judgment that the
use of video-conferencing does not prevent the trial court from
observing the demeanour of the witness. The witness remains visible
to the judge and the parties on the screen during the course of
testimony. Reference was also made to the High Court of Delhi Rules
for Video Conferencing for Courts, 2021, which expressly permit the
court to record the demeanour of a person being examined through
video-conferencing. In this regard, it is also relevant to note that the
Guidelines of the High Court of Delhi for Recording of Evidence of
Vulnerable Witnesses, 2024 specifically provides as under:
― 39 . Application of High Court of Delhi Rules of Video
Conferencing for Courts 2021-
Wherever required, the ―High Court of Delhi Rules of Video
Conferencing for Courts 2021‖ shall apply.‖
36. In view of the aforesaid statutory provisions, judicial
precedents and the Guidelines framed by this Court, it is evident that
the criminal justice system now recognises the need to adopt
procedures that minimise the trauma of vulnerable witnesses while
ensuring fairness to the accused. The object of these safeguards is not
only to protect the dignity of the victim but also to ensure that the
testimony is recorded in an atmosphere where the witness is able to
depose freely and without fear.
37. Therefore, the learned Trial Courts dealing with cases
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involving child victims or other vulnerable witnesses must ensure
that the evidence of such witnesses is recorded in a timely and
effective manner , without repeatedly summoning them to court on
multiple dates without meaningful progress in the trial. Once the
witness-victim is summoned for the purpose of recording evidence,
the court should make all necessary efforts to ensure that the
examination-in-chief and cross-examination are conducted without
unnecessary adjournments, so that the witness is not required to
appear repeatedly before the court.
38. In appropriate cases, and particularly where a request is made
by the victim, the facility of video-conferencing or live-link
testimony , as envisaged under Section 36 of the POCSO Act and the
Guidelines of the High Court of Delhi for Recording of Evidence of
Vulnerable Witnesses, 2024, must be utilised for recording the
testimony — in accordance with the procedure set out in the said
Guidelines.
39. Though it has been urged before this Court that specific
guidelines be laid down to the effect that in cases under the POCSO
Act where the accused persons or their counsel seek two or more
adjournments resulting in delay in the examination of minor victims,
the learned Trial Courts should permit the recording of such cross-
examination through video-conferencing, this Court is of the view
that in light of the detailed directions already issued by the Hon‘ble
Supreme Court, and the Guidelines of the High Court of Delhi for
Recording of Evidence of Vulnerable Witnesses, 2024 — no further
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guidelines are required to be laid down in this regard.
40. Moreover, in compliance with the decision of Hon‘ble
Supreme Court in Smruti Tukaram Badade v. State of Maharashtra
(supra), there is already a Committee constituted on the
administrative side i.e. ‗ Committee to monitor proper implementation
of several guidelines laid down by the Supreme Court as well as this
Court for dealing with matters pertaining to sexual offences, child
witnesses and other vulnerable witnesses ‘ to oversee the
implementation of the Supreme Court‘s guidelines relating to the
examination and protection of victims and vulnerable witnesses in
cases involving sexual offences.
41. At the same time, suffice it to say , this Court is of the view that
all the learned Trial Courts must adopt a balanced and
compassionate approach while considering any such requests by the
victim, especially in situations where the victim has already been
called to court repeatedly for the purpose of recording evidence. The
ultimate consideration must be to ensure that the trial process does
not become a source of further distress or re-traumatisation for the
victim, while maintaining the essential safeguards of a fair criminal
trial.
D. Presence of Victim during Bail Hearings in Cases of Sexual
Offences
42. This Court now proceeds to deal with the last issue which has
been urged before this Court during the course of hearing. The issue
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concerns the manner in which victims are required to appear before
the Court during the hearing of bail applications in cases involving
sexual offences, particularly under the POCSO Act.
43. In this regard, the attention of this Court was drawn to the
order dated 11.01.2023 passed by a Coordinate Bench of this Court in
XXXX v. State (supra) . The said order reads as under:
"1. During the course of hearing of this appeal, it was pointed
out by Mr Pujari, learned counsel appearing for the appellant as
well as Ms Mishra, Secretary (Litigation), DSLSA that many
of the victims in POCSO cases were being asked to appear
physically or virtually in Court at the time of hearing bail
applications. This has led to a situation where the victims were
being forced not only to potentially interact with the accused
person but also be present in Court when arguments regarding
the offence were taken up for hearing.
2. The psychological impact on a POCSO victim being present
in Court during the arguments is grave as there are allegations,
accusations, doubting the integrity, character, etc. of the
prosecutrix, her family, etc. The presence of the prosecutrix
victim in Court at the time of arguments, according to me, has
an adverse impact on the psyche of the prosecutrix. The
prosecutrix is forced to be present in Court with the accused,
who is the same person who has allegedly violated her. It was
felt that it would be in the interest of the victim that she is not
traumatized again and again by re-living the said incident by
being present in Court proceedings.
3. In this view of the matter, the DHCLSC, DSLSA as well as
Mr Pujari were directed to give suggestive practice directions.
The suggestive practice directions have been forwarded to this
Court and I am in agreement that the said directions, if
implemented in its true letter, spirit and intent, may help in
reducing the trauma of a POCSO victims. In this view of the
matter and in addition to the practice directions issued earlier, it
is further directed that during bail hearings of a POCSO case,
the following guidelines shall also be adhered to: ―i. The IO
shall ensure that timely service of notice of bail application is
made on the victim/ prosecutrix, so that she gets reasonable
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amount of time to enter appearance and make her submissions.
ii. The Investigating Officer while serving notice/summons of
the bail application to the victim/ prosecutrix shall make
relevant inquiries about the victim and her circumstances and
shall document the same in order to assist the court in the
hearing of the bail application and to facilitate effective
representation and participation on behalf of the victim. The IO
should ensure that while making such enquiries the victim is
not made to feel uncomfortable or questioned like an
accomplice to a crime. Necessary sensitivity ought to be
displayed by the IO ·while making these enquiries.
iii. The victim can be produced virtually before the Court
(either by the IO/ Support person before the Court) (by way of
Video Conferencing) or by taking assistance of the District
Legal Services Authority. Hybrid form of hearing of bail
applications would suitably address the concerns of the victim
while at the same time safeguarding the rights of the accused.
Victim and the accused shall not come face to face in this
manner and this can prevent the re-traumatization of the victim.
iv. If the victim gives it in writing that her counsel/
parent/guardian/ support person shall appear on her behalf and
make submissions on the bail application, insistence on
physical or virtual presence of the prosecutrix shouldn‘t be
made. A written authorization of the victim authorising another
to make submissions on her behalf (after victim is duly
identified by the IO) and said authorization is forwarded by the
SHO, should suffice.
v. If the victim has appeared in court on one date of hearing of
a bail application, her presence on subsequent dates can be
dispensed with and RCC lawyer/ counsel/ parent/guardian/
support person representing the victim in court can be
permitted to make submissions on behalf of the victim. On the
day of the first appearance of the victim/prosecutrix, her
submissions qua the bail application can be recorded by the
Court and the same maybe used for the purpose of adjudicating
on the bail application. The victim‘s opinion and objections
regarding bail application on the first interaction can be
mentioned in the order passed on the day of interaction
between the Ld. Judge and the victim and this order can then be
relied on at the stage of final disposal of bail application.
vi. In certain exceptional cases, in- chamber interaction with
the victim can be done and her submissions qua the bail
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application can be recorded in the order sheet passed on that
day, so that the same maybe considered at a later stage.
vii. While recording the submissions/ objections/ statement of
the victim qua the bail application, appropriate questions may
be put to the victim to elicit her responses instant of bluntly
asking her ―Do you want bail to be given to the accused or
not?‖ Rather questions can be put to her to ascertain what her
apprehensions and fears are in case the accused is granted bail
in the matter, for bail is to be granted by the Court concerned
on the basis of overall appreciation of facts and circumstances
of the case and in the light of well settled principles governing
the grant of bail.
viii. Whenever the victim comes to court for a hearing on the
bail application, the support person provided to her should be
present with her so as to provide the necessary psychological or
logistical support to the victim/prosecutrix.
ix. It may further be clarified that victim's presence may not be
insisted on in cases under POCSO Act, where the accused is a
child in conflict with law, because the considerations for grant
of bail to the child in conflict with law arc not dependant on the
apprehensions of the prosecutrix. Section 12 of the Juvenile
Justice (Care and Protection) Act, 2015 delineate separate
parameters for considering grant of bail to children in conflict
with law and giving an audience to the prosecutrix will not
have any bearing on the same.
x. Further, after the bail application is disposed off, the copy of
the order should be mandatorily sent to the victim. This
becomes important since the victim's main concern is her
safety in case the accused is enlarged on bail. By providing her
a copy of the bail order the victim is made aware about the
status of the accused and the conditions of the bail and her right
to approach the court for cancellation of bail in case of breach
of conditions of bail.
xi. It would further be in the fitness of things that the Judicial
Officers are sensitized about the need to reduce interface of
victim with the accused in court to the minimum possible and
to permit victim to be represented through an authorised person
in court at the time of hearing of bail application, instead of
insisting for appearance of the victim in person (either
virtually/physically). Judicial Officers maybe sensitized to the
extent that Practice Directions issued by the Hon‘ble High
Court of Delhi on 24.09.2019 and judicial directions in ―Reena
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Jha v. Union of India‖ and ―Miss ‗G‘ (Minor) through her
Mother v. State of NCT of Delhi‖were issued to ensure that
victim doesn't remain unrepresented or unheard when the
question of granting bail to the accused is being considered.
However, it wasn‘t meant to invariably call for presence of
victim on all dates of hearing in bail application so that the
process itself becomes a punishment for the victim by exposing
her to the accused/ his counsel frequently and reopening her
emotional and psychological wounds.‖
4. The Secretary (Litigation), DSLSA who is present in Court
shall circulate the order to all necessary parties and stake
holders.‖
44. A reading of the aforesaid order shows that the Coordinate
Bench had issued certain practice directions with the object of
reducing the trauma that may be caused to victims of sexual offences
during the course of bail proceedings. The directions recognise that
although the victim has a right to be heard when the question of grant
of bail to the accused is being considered, repeated appearance of the
victim before the Court, either physically or virtually, may have an
adverse psychological impact. Therefore, the directions emphasise
that while the victim must be given an opportunity to present her
objections to the grant of bail, her presence should not be insisted
upon repeatedly once her views, in respect of bail plea of the accused,
have been recorded. The directions further clarify that the victim may
be represented through counsel, parent/guardian, support person, or
the concerned Legal Services Authority, and that appropriate
arrangements such as virtual appearance or in-camera interaction
may be adopted so as to minimise the interface between the victim
and the accused.
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45. In the present case, however, it has been brought to the notice
of this Court that the victims were called upon to appear before the
Court on about eleven occasions only for the purpose of hearing
arguments on the bail application . Such repeated appearance of the
victims was clearly not in consonance with the spirit of the directions
issued in XXXX v. State (supra).
46. In the opinion of this Court , the objection of the victim child
in such cases, to the grant of bail to the accused, could be recorded at
the first instance itself. Once the views of the victim have been noted,
the bail application can thereafter be contested on her behalf by her
counsel or authorised representative. Requiring the victim to remain
present on multiple dates of hearing of a bail application may result
in unnecessary distress and may defeat the very purpose of the
safeguards intended to minimise repeated exposure of the victim to
the court process during such proceedings.
E. Conclusion
47. In view of the discussion hereinabove, it can be concluded as
under:
(i) The expression “vulnerable witness” in criminal
proceedings includes victims of sexual offences and child
victims under the POCSO Act, who require a sensitive and
protective approach during investigation and trial.
(ii) The statutory scheme of the POCSO Act mandates
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adoption of child-friendly procedures so as to ensure that the
child victim is not subjected to repeated or unnecessary
appearances before the Court and that the trial process does not
result in re-victimisation or further trauma.
(iii) Courts are empowered to adopt appropriate procedural
mechanisms, including recording of evidence through video
conferencing or other suitable modes, so as to minimise the
exposure of vulnerable witnesses to the accused and reduce the
psychological stress associated with court proceedings.
(iv) At the stage of consideration of bail applications, while the
victim has a right to be heard, once the objections or views of
the victim regarding the grant of bail have been recorded,
repeated insistence on the physical or virtual presence of the
victim on every date of hearing ought to be avoided.
(v) The judicial precedents and practice directions governing
the protection of vulnerable witnesses are required to be
followed in their true letter and spirit so that the criminal
process itself does not become a source of distress to such
witnesses.
48. The present exercise has been undertaken so that the relevant
legal principles and judicial precedents governing these issues are
consolidated in one judgment and may serve as a ready reference.
This has also been considered necessary in view of the submission
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made before this Court that despite various directions issued from
time to time, the same are not being uniformly followed by the
learned Trial Courts/Special Courts.
49. Accordingly, a copy of the present judgment be circulated to
all learned Trial Courts/Special Courts and all Judicial Officers in
Delhi for their information and necessary guidance.
50. This Court places on record its appreciation for the valuable
assistance rendered by Ms. Prachi Dubey, learned Amicus Curiae.
51. The petition, alongwith pending application, is disposed of in
above terms.
52. The judgment be uploaded on the website forthwith.
DR. SWARANA KANTA SHARMA, J
MARCH 11, 2026/ns
T.D./T.S.
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