She tried her best. But a 60-year-old senior lady doctor, a resident of Delhi’s Defence Colony, whose 40-year-old daughter having a mental maturity of a four-year-old toddler was raped, lost her legal battle on behalf of hundreds of similar victims for a more friendly trial court. If she had won, it would have been a landmark ruling.

The Supreme Court on Friday unfortunately ruled that the trial of a case wherein the victim is an adult whose mental maturity is of a kid cannot be shifted to a children’s court and the accused cannot be tried under the stringent provisions of Protection of Children from Sexual Offences (POCSO) Act 2012.

The victim, who was brutally raped, suffered from cerebral palsy, a case of under-developed brain like that of a child.

Due to the impact of the gruesome incident seven years ago, the victim’s mental capacity drastically reduced from that of an 8-year old to a three-year old toddler. This was making the recording of her statement before a magistrate extremely difficult as she could not convey to the judge what exactly was done to her.

The victim in the pertinent case anyways would not have benefitted even if the court had ruled in her favour as the accused died when her mother’s plea to shift the case from a normal court to children’s court was pending in the apex court.

But her mother, despite the tragedy and trauma that had befallen her, had fought on with the help of her lawyer Aishwarya Bhati for the interest of hundreds of other similar victims.

“We discussed the issue in detail. There are two concurring judgments rejecting the plea,” said Justice Dipak Misra

Justice Rohinton Nariman added:  “We thought about it. But despite our best effort, we could not do much.”

Both judges said that criteria of mental age required amendment of the rules of Protection of Children from Sexual Offences (POCSO) Act 2012 and it was the job of the parliament and not of the court.

“Needless to emphasise that courts  sometimes expand or stretch the meaning of a phrase by taking recourse to purposive interpretation. A judge can have a constructionist approach but there is a limitation to his sense of creativity.  In the instant case,  I am obliged to state that stretching of the words “age” and “year” would be encroaching upon the legislative function,” Justice Misra said in the judgment.

Justice Nariman said: “It is clear that viewed with the lens of the legislator, we would be doing violence both to the intent and the language of Parliament if we were to read the word “mental” into Section 2(1)(d) of the 2012 Act. Given the fact that it is a beneficial/penal legislation, we as Judges can extend it only as far as Parliament intended and no further.”

The Delhi High Court had earlier dismissed the victim’s mother’s plea. The apex court was initially convinced by the argument of  Aishwarya Bhati, the lawyer for the petitioner that the mental age of the victim should be taken as the criteria for classifying an offence under POSCO instead of the chronological age.

The POSCO Act defines child to mean a person below 18 years of age and lays down a detailed mechanism and procedure to ensure that recording of statement of the child is done in a child-friendly manner with care. But unfortunately the act fails to account for the mental age of the victim.

It requires that the child doesn’t see the accused at the time of testifying and permits assistance of interpreter/expert and the presence of parents. The Rules provide for compensation for relief or rehabilitation of the child.

SHOCKING EXTRACTS 

Said the mother’s petition in the court: “After putting a lot of efforts were made to do In-Camera Recording the evidence of the prosecutrix in a vulnerable room at Saket Court Complex, New Delhi in which prosecutrix did make a coherent statement in child like language of the anatomical part of the accused that was put in her.

However, the trial judge refused to accept the child-like language, despite the fact that the interpreter Dr. Roma Kumar was interpreting the child like language for the trial judge and the case was thereafter adjourned because the prosecutrix was distressed and crying instead the trial judge adjourned the in-Camera Trial because repeated questioning in the same was making  the child cry and distressed. Thereafter, the matter was listed for 21.05.2015, 27.05.2015 and the I.O. was directed to collect the relevant information from AADI and submit the report on 18.05.2016 at 4.00 p.m.”

Although the Delhi Police proceeded with filing chargesheet against the accused under Section 376(2)(L) of the Indian Penal Code (sexual assault with a mentally or physically challenged victim), the victim’s mother approached the Delhi High Court to allow shifting of the case to the Special Court trying POSCO cases.

The High Court in June last year turned down the request forcing the mother to approach the Supreme Court.

BENEFITS OF A POCSO COURT

• In a normal court a “child” victim feels intimidated in the presence of the accused and his lawyer who will cross examine her even if it is an in-camera proceeding.

• In a designated POCSO court, procedure of recording statement of victim is different.

• Child will be comfortable as accused will not be seen.

• The accused’s lawyer cannot cross examine the child and he can only submit a list of questions to the judge who will then put it to her. Thereby any chance of intimidation of the victim by the defence lawyer is ruled out.

• Rules also provide for compensation for relief or rehabilitation of the child.