Why is justice often delayed in child sexual offence cases?

Delays in collecting forensic evidence, out-of-court compromises and delay in trials due to lack of functional special courts- are some factors affecting the POCSO cases in Bengaluru.

Child sexual abuse needs to be handled sensibly. Pic courtesy: Child line India

On February 20th, the aggrieved parents of a playschool-going child shared an alarming piece of information in social network sites. They briefly narrated the sad story of their three-and-half-year-old girl child having been the victim of sexual assault in her playschool in Bellandur. The parents alleged that a supervisor at the school had sexually assaulted the child.

A case has been filed and the alleged culprit has been arrested within a day. Days later it has been learnt that several other children in the same play school too have complained their parents against the supervisor.

With the above incident coming to the public domain, the discussion on child sexual assault and abuse cases has surfaced once again in Bengaluru. The city has seen several major child sexual assault cases that were widely reported in the media.

Citizen Matters listed down seven such major child sexual assault cases reported in the city in last three years, and tried to find out the status. We found out that majority of these cases are still pending in the court, and in some cases the accused is behind bars and in few cases they are out on bail.

While the police were not ready to share details about the cases, as the proceedings were pending in the court, here is all that we could gather:

Case 1: July 2014

In the first week of July, a 63-year old part time teacher sexually assaulted an 8-year old girl in a school in Thalagattapura police station limits. The police quickly sprung into action and arrested the the postmaster who was acting as a substitute teacher when other faculty members went on leave. He was booked under Section 8 of the POCSO Act (sexual assault resulting in imprisonment of three years). A case was booked against the school principal too for failing to inform police about the incident.

Current status:

According to police, the chargesheet was filed in November 2014 and the case is pending with the special court. The hearing has almost concluded and the judgement is expected to be out soon. Accused in the case have been let out on bail.

Case 2: July 2014

A six year old girl child of Class 1 was sexually assaulted in a prestigious international school in Marathahalli in Varthur police station limits. It was for the first time a major case of child sexual assault came out to the public domain and a case was booked under POCSO Act in Bengaluru.

The outrage sparked massive protests by angry parents and citizens. The police who were forced to act swiftly, initially arrested a skating instructor of the school. However, he was soon released as there was not much evidence against him. The police later arrested Lal Giri and Wasim Pasha, the gym instructors in the school. Even the school chairman Rustom Kerawalla was arrested. All three were booked under POCSO Act.

Current status:

By the end of October 2014, the police filed a chargesheet of 750 pages against Lal Giri and Wasim Pasha for sexually assaulting the child and against the school chairman for hushing up the matter. The case is still pending in the special court and the three accused in the case were released on bail.

Case 3: September 2014

A 10-year old girl was sexually assaulted by her tuition teacher at his home in HSR Layout. The 32-year old tutor, a resident of Somasundarapalya had allegedly raped the girl on several occasions when she went to his home for coaching. It took sometime for the girl to gather courage and inform the same to her parents. The accused in the case was arrested soon and was booked under POCSO Act.

Current status:

According to the police sources, the case was heard in the sessions court. But the disputing parties arrived at a compromise, withdrew the case and settled the issue out of court.

Case 4: October 2014

A three-and-half-year old toddler was sexually assaulted in an international school near HMT Theatre in Jalahalli police station limits. The kindergarten student apparently complained of pain in her private parts on reaching home from school. Since the child was bleeding profusely, her mother took her to the hospital and upon medical examination it was found that the child was sexually assaulted.

The police initially detained six suspects and later the school office assistant was arrested after the child identified him during the investigation and was booked under POCSO.

Current status:

The police sources say that the chargesheet was filed and the case is under trial. The arrested office assistant is out on bail.

Case 5: October 2014

A six-year-old student of class I was sexually assaulted twice in a school in Jeevan Bhima Nagar. The child had reportedly come home complaining of stomach ache and when she was taken to the hospital for medical examination the doctors confirmed of her having been sexually assaulted. The Hindi teacher of the school was arrested.

Current status:

The police say that they have filed the chargesheet and the case is pending with the special court. The accused in the case is still behind bars and has not been released.

Case 6: November 2014

A three year old girl studying in a repited private school in Ramamurthy Nagar was reportdely sexuallay assaulted by the school peon. Within a day of child’s parents filing the complaint, the culprit (the school peon) was arrested and booked under POCSO Act.

Current status:

According to the police, an investigation was made and C Report was filed before the special court. C Report is filed when the case is neither true or false. It is issued in such a matter when the criminal case was filed due to mistake of facts or the offence complained is of civil in nature. Ramamurthy Nagar police say that the court is yet to accept the C Report.

Case 7: August 2015

A three-year-old nursery school student in Indira Nagar was sexually assaulted in a school in Indira Nagar. The child complained of pain in her private parts and it was when the heinous incident came to light. The police soon arrested a 30-year old security guard of the school and a case was registered under POCSO Act.

Current status:

The police filed the chargesheet in the case in March 2016. The case is heard in the special court. There have been two hearings so far and the next hearing is scheduled for April 1st, 2017.

Two special courts, but none full-fledged

The culprits in child sexual assault cases are booked under the Protection of Children under Sexual Offences (POCSO) Act, 2012, which is supposed be stringent. The Act mandates that the trials of cases booked under POCSO Act be held in a Special Court meant for the purpose or in the Sessions Court when there is no designated court. In Bengaluru, there are two special courts functioning from the Sessions Court premises, but there are no full-fledged special courts yet.

Nagasimha Rao, Director of the Child Rights Trust, the nodal agency of Childline, says the trials of the POCSO cases in Bengaluru are normally held in the Sessions Court, in a room allotted for it. The judges who handle sessions court cases also try the offences booked under the POCSO Act, he says.

This impacts the time taken to complete trial of POCSO cases. In the absence of appointment of special judges to try only POCSO cases, the trials take years to complete. This, despite the POCSO Act emphasising on the speedy trial.

Delay in collecting proofs and forensic material

A team from Enfold, a non-profit organisation based in Bengaluru that works closely with children, has been carrying out a study on the effectiveness of implementation of POCSO Act. The study which is currently underway, is done by following-up 100 child sexual offence cases reported in 10 districts of Karnataka in last few years.

Based on observations made so far, Dr Shaibya Saldanha, Founder of Enfold, points out at three factors that hinder the process of justice for child sexual assault victims: 1) Delay in collecting proofs and getting FSL report and filing chargesheets. 2) Delayed trials. 3) Compromises and out-of-court settlements.

The delayed trials are the result of lack of full-fledged special courts and special judges for the purpose. Special court judges for POCSO cases are regular court judges who take up additional cases along with regular cases. They already have a load of cases and an additional load of handling POCSO cases obviously results in not giving frequent trial dates, Dr Shaibya notes.

“Often the complainant’s family is harassed due to which the families turn hostile. They do not want to be a part of the trial. Or they even refuse to appear before the court because they are sick and tired of visiting the court again and again. That is one of the reasons why the trials are taking a longer time,” she observes.

Study points to loopholes

A study report prepared by the Bengaluru-based Centre for Law and Policy Research  (CLPR) in 2016 titled “The myth of speedy and substantive justice,” corroborates Dr Shaibya Saldanha’s claims.

The research on the status of cases in special fast track courts for sexual assault and child sexual abuse in Karnataka shows that the conviction rate in child sexual offence cases is merely 7.2 per cent and in 92.8 per cent of the cases the accused is acquitted. “In majority of the cases, the acquittal is due to witnesses/complainants turning hostile, followed by lack of corroborative evidence,” the report notes.

Further, based on the court judgements, authors of the report make an observation – in many instances the prosecution lawyers did not try hard to ensure that the witnesses did not turn hostile.

When the trial time is too long

Section 35 of the POCSO Act states that the Special Court must complete the trial, as far as possible, within a period of one year from the date of taking cognizance of the offence. But there has been an inordinate delay in the closure of the cases which is also due to the delay in filing chargesheets.

“The Act mandates that the chargesheet has to be filed within three months of filing the FIR and the judgment has to be delivered within a year. But in most of the cases, time taken to file chargesheet is longer than the prescribed time which naturally leads to delayed trial. To add to this, the term “as far as possible” used in the Act in connection with speedy trial gives scope for delay,” she points out.

The delay in the proceedings, helps the accused to get bail despite the child sexual assault and abuse cases being non-bailable offence. In fact, Section 29 the POCSO Act emphasises on considering the accused as guilty unless proved otherwise.

“Especially those with money and clout get the bail quite easily. Even the police don’t put strong arguments before the magistrate to retain custody of the accused. And if the police fail to file chargesheet within three months of filing the FIR, the accused automatically gets the bail as the person cannot be kept under police or judicial custody due to the delay meted out by police,” she says.

Related Articles

Understanding Child Sexual Abuse
Child sexual abuse in schools: what should be done?
How should a case of child abuse be dealt with under POCSO?
Justice for abused children: Fasttrack courts and following rules
What to do if your child is sexually abused

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