Courts asking POCSO victims who turn hostile to return compensation right or wrong?

Why do child victims under the Protection of Children from Sexual Offences Act turn hostile? Is asking to return compensation the way to go? Child rights experts say such cases have to be seen in the light of multi-layered factors.

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ON January 14, a fast-track special court in Dakshina Kannada, Karnataka of an additional district and sessions judge directed a child victim of sexual violence to return the amount of compensation granted to them.

The offence had been registered under the Protection of Children from Sexual Offences (POCSO) Act, 2012, at the Panambur police station. The child victim had turned hostile during the trial.

Special public prosecutor Jyothi Pramod Nayak is reported to have stated, "This serves as a lesson for all victims, and it is important to not turn hostile."

In April last year, the Allahabad High Court directed the state government to frame necessary guidelines to recover compensation paid to rape victims who turn hostile.

This happened when the Lucknow Bench of the Allahabad High Court was hearing a matter pertaining to the offence of rape allegedly committed in the Unnao district. During the hearing of the case, the victim turned hostile.

The high court expressed serious concern over the victims turning hostile during trial proceedings of rape and cases under the POCSO Act, the court said, "The victim is the person who comes before the court and during the trial, if she denies the allegation of rape and becomes hostile, there is no justification to keep the amount of compensation provided by the state government.

"The state exchequer cannot be burdened like this and there is all possibility of misuse of the laws."

These are not isolated incidents. But why do child victims under the POCSO Act turn hostile and what can be done to ensure justice is done in such cases?

Child rights experts opine that victims turning hostile in POCSO cases have to be seen in the light of multi-layered contributing factors.

Lack of support

Advocate Persis Sidhva, director of the Rati Foundation, which works to create sexual violence-free spaces and communities for children, termed the trend of courts directing the recovery of compensation from the victims "deeply concerning".

According to Sidhva, one of the most common reasons that victims turn hostile is the lack of support during the time-consuming process of investigation and the long duration of the trial.

Sidhva explained, "While the law makes provisions for the victim to appoint a lawyer of her choice or a legal aid lawyer, or to take the help of a support person through child welfare committees (CWC), the beneficial mechanisms are either not being used or are under-resourced."

Sidhva also shared that once investigation and trial are complete, a child is not provided with support to rehabilitate.

She added, "Once a POCSO case is filed, the victims and their families are known to change residences. Some children even fall out of education. Nobody is looking at the multiple vulnerabilities of a child while facing the system and in her general life."

Kavita Mangnani, Director of Restorative Care at HAQ: Centre for Child Rights, New Delhi, stated that in cases where the accused person is a family member, there is considerable pressure on the victim to turn hostile during their testimony.

"Holistic support to meet the child's medical, educational and other needs is important to ensure the child continues to support the case [against a family member]," Mangnani said.

Long-pendency of cases

According to Mangnani, the delay in the completion of the trial is a major contributing factor in the victim and their families withdrawing support during the course of the proceedings.

Section 28 (designation of special courts) of the POCSO Act provides for establishing special courts to ensure a speedy trial.

Under Section 35 (period of recording evidence of child and disposal of cases) of the POCSO Act, the evidence of the child should be recorded within 30 days and the trial should be completed within one year, following the special court taking cognisance of the offence.

Since 2019, fast-track special courts have been established across the country to deal with cases registered under the POCSO Act. As reported in December last year, there are 351 fast-track courts and 412 POCSO courts in the country.

Mangnani shared that certain POCSO cases have taken ten years to be adjudged, where for instance, a case was registered in 2013 and the accused was convicted in 2023. She also cited a recent example of a POCSO case where the court took three years to complete recording a victim's testimony.

Mangnani said, "Since cases remain pending for years, the victims and their families are forced to recall traumatic incidents years after their occurrence, along with their presence mandated often by stakeholders such as courts and CWCs.

In their desperate need to move on, can the victims then be blamed for not supporting the long-pending cases?"

An article by Scroll in December 2022 says that in Delhi, POCSO cases had been pending for more than three and a half years before being disposed of. In addition, 58 percent of all POCSO cases disposed of in 2020 had been pending for over a year.

The article quoted a 2017 study published by the Centre of Law and Child, National Law School of India University, Bengaluru, which found that "the rate of children turning hostile rose with the increasing gap between the lodging of the first information report (FIR) and the recording of evidence."

Interim compensation

Under Section 33(8) of the POCSO Act, the special court is empowered to direct payment of compensation to the victim for the physical or mental trauma, or immediate rehabilitation.

According to Rule 9(1) of the POCSO Rules, 2020, the special court can grant interim compensation to meet the needs of the child for relief or rehabilitation after filing the FIR, which is to be adjusted against the final compensation.

Mangnani expressed her disbelief in the practice of compulsorily granting a fixed interim compensation to every victim.

According to her, there should be a thorough assessment of the needs of a child victim— in terms of education, shelter and medical relief— before interim compensation is granted or when deciding on its quantum.

Mangnani explained that interim compensation is also granted in romantic (or the so-called Romeo and Juliet) cases, where the girl has already expressed in her statement recorded under Section 164 of the Code of Criminal Procedure that she does not wish to pursue the case.

"In romantic cases, when the victim never wanted to pursue the case, the courts are still awarding them interim compensation. How does the question of victims in such cases turning hostile arise when they continue to stand by their statement of not supporting the case?" Magnani said.

Need for a sensitive system

Mangnani shared that it is impertinent for the courts as well as other stakeholders such as the CWCs to be sensitive to the needs of the victims. She also stressed the need to ensure a speedy trial of POCSO cases.

According to Mangnani, the system should be tweaked to be child-friendly, where, for instance, the need to require victims and their families to repeatedly appear before courts and CWCs is done away with.

"How is the victim supposed to focus on her rehabilitative needs of education and medical support if she is time and again required to appear before the stakeholders?" Mangnani added.

Mangnani condemned the building up of a strong narrative within the system that all cases where victims turn hostile are 'false cases'.

Sidhva said, "Saying that a victim has turned hostile and therefore it is a 'false case' is a huge abdication on the part of the judge and system where the entire onus is put on the victim without the system taking any responsibility of the child".

Sidhva opined that it is crucial to have discussions that ask, "Why did a victim turn hostile? Was it the lack of support that the system failed to provide her? Did the system fail to provide her with the beneficial mechanisms that were promised to her during the investigation and trial? Was the victim pressurised by the accused and their family?"