Appointment of “Guardian ad litem” or “Support person” in incest cases under POCSO Act: Delhi High Court
The Delhi High Court passed a judgment on 08-02-2017 in the case of Smt. Lavanya Anirudh Verma vs NCT of Delhi Crl.M.C. 301/2017. Justice Mukta Gupta disposed of the petition by appointing Smt. Lavanya Anirudh as guardian ad litem of child victim.
FACTS OF THE CASE
Minor ‘X’, a girl aged 12 years and her brother aged 9 years, were found abandoned in Delhi by the officers of P.S. Ambedkar Nagar, who handed over the two children to Child Welfare Officer, Foundling Home – Welfare Home for Children, for immediate care and protection. On 13th April, 2016, Minor ‘X’ and her brother were counselled by the Child Welfare Officer when they stated that they had left the home voluntarily as their father had been sexually assaulting Minor ‘X’ and was also physically violent with both of them. Their mother had abandoned them three years back and had married another man. They stated that they did not wish to return home to their father. The Child Welfare Officer filed a report before the Child Welfare Committee (CWC). On the same day, Chairman, CWC directed short term placement of Minor ‘X’ and her brother at Foundling Home – Welfare Home for Children. On 18th April, 2016, FIR No. 234/2016 was registered for the offences punishable under Section 376 IPC and Section 6 of Protection of Children from Sexual Offences (in short POCSO) at PS Ambedkar Nagar at the instance of Minor ‘X’ against her father, whereafter statement of Minor ‘X’ was also recorded under Section 164 Cr.P.C.
CWC had passed an order transferring Minor ‘X’ to “Global Home” for further rehabilitation. Thereafter, on 25th May, 2016, another order was passed by CWC whereby Minor ‘X’ was transferred to “Samarpan Home for Girls”. CWC passed an order directing that Minor ‘X’ shall remain in the long term care and custody of “Samarpan Home for Girls” till 25th September, 2017. An application was filed by the petitioner for inspection of records which was dismissed on 26th October, 2016. In view of the aforesaid order, an application was made to CWC to appoint the petitioner as the guardian of Minor ‘X’ in terms of Section 2(31) of the Juvenile Justice Act, 2015 . Later, CWC while exercising its powers under Section 29(1) and in furtherance of its responsibilities under Section 30(vi) of the JJ Act, 2015, appointed the petitioner as the guardian of Minor ‘X’.
Thereafter, again an application for inspection of record was filed before the learned Additional Sessions Judge, bringing on record the order dated 9th November, 2016 of CWC appointing the petitioner as the Guardian of Minor ‘X’, which was also dismissed vide the impugned order dated 21 st December, 2016. Hence, the new petition was filed.
The court took reference from the case of Delhi Commission for Women v. Delhi Police W.P.(CRL) 696/2008 which laid down the guidelines to enable the authorities to tackle sexual offences effectively including the sexual abuse offences against children which defined a ‘guardian’ and imposed a duty on the Court to provide legal aid to a victim of sexual offence.
The court observed that the term “guardian ad litem” was defined in The UN Model Law on Justice in Matters involving Child Victims and Witnesses of Crime published by UN Office on Drugs and Crime, Vienna, UN, New York 2009 as-
(g) “Guardian ad litem” means a person appointed by the court to protect a child’s interests in proceedings affecting his or her interests.
The High Court of Delhi, after taking a valuable insight from ‘The UN Model Law on Justice in matters involving Child Victims and Witnesses of Crime’ published by the UN Office on Drugs and Crime, Vienna, UN, New York 2009, formulated the Guidelines for recording of evidence of vulnerable witnesses in criminal matters which were reiterated in the decision of the Division Bench of this Court reported as (2015) 224 DLT (CN 13) 13 Arsheeran Bahmeech Vs. State. Paras 15, 16 and 17 of the guidelines provide for ‘Appointment of Guardian ad litem’, ‘Duties of Guardian ad litem’ and ‘Legal Assistance’ respectively
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JUDGMENT REVIEWED BY ABHINAV CHATURVEDI
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