'R' v. 'E' & Anr
An investigating officer must obtain a psychiatric evaluation of the child before arresting a parent for an alleged POCSO offence where a matrimonial dispute exists.
Yes. Where an offence under the POCSO Act is alleged against a parent or family member living under the same roof as the child, and a matrimonial dispute exists between the parents, the investigating officer must, before forming "reason to believe" that the accused committed the offence for the purpose of arrest under Section 35 of the BNSS, engage a child and adolescent psychiatry or clinical psychology expert to evaluate the child. The officer is not bound by the expert's findings, and may, in exceptional cases, for reasons recorded in writing, dispense with the evaluation.
Headnote
Protection of Children from Sexual Offences Act, 2012 — s.22 — s.33 — Bharatiya Nagarik Suraksha Sanhita, 2023 — s.35 — False allegations in matrimonial disputes — Arrest safeguard —
Protection of Children from Sexual Offences Act, 2012 — s.35 BNSS — Arrest safeguard — Expert evaluation —
Held: Where an offence under the POCSO Act is alleged against a parent living with the child where a matrimonial dispute exists between the parents, the investigating officer must engage a child psychiatry or psychology expert to evaluate the child before forming "reason to believe" for arrest under Section 35 of the BNSS. (¶48, 60)
Protection of Children from Sexual Offences Act, 2012 — s.33 — Special Court cognizance — Same safeguard —
Held further: The same safeguard applies where a Special Court is deciding whether to take cognizance of a private complaint under Section 33 of the POCSO Act in like circumstances. (¶64, 70)
Protection of Children from Sexual Offences Act, 2012 — Custody proceedings — Registration not proof —
Held further: Mere registration of a case under the POCSO Act does not by itself prove the allegation true or defeat a parent's legitimate claim to custody; the court must independently assess whether the allegation is baseless. FIR quashed as an abuse of process; legal custody of the child to rest with Father-'R'. (¶76, 79)
In the Court's own words
Paragraph 48Before the precautions to prevent such harm are set out, we must be clear as to the exact context in which they would apply. They would apply only when both of the following threshold conditions are met:- i) Firstly, an offence under the POCSO Act is alleged to have been committed by a parent, or any other family member who is living under the same roof as the child victim. ii) Secondly, a matrimonial dispute of some form, irrespective of whether it is before a court of law or not, exists between the parents of the child victim, thereby indicating the possibility of a strained relationship. It 44 would be the duty of the police officer receiving the complaint to verify, at the time of receipt of the complaint, that a matrimonial dispute as aforesaid exists between the parents.
Paragraph 60Therefore, we are of the opinion that in aforesaid situations, the investigating officer or the Special Juvenile Police Unit (“SJPU”) shall engage the services of an expert in child and adolescent psychiatry/clinical psychology in consultation with the District Child Protection Unit (“DCPU”) or the District Legal Services Authority (DLSA) where DCPU is not available, of the concerned district, for the purpose of aiding the investigation. However, the investigating officer shall, in exceptional cases, where the material is palpable, for reasons to be recorded in writing dispense with the engagement of the services of an expert in child and adolescent psychiatry/psychology. Such an expert shall ordinarily be engaged from the register maintained by the DCPU under Rule 5(1) of the POCSO Rules, 2020, and shall hold the qualifications contemplated under 57 Rule 5(5). Where the register does not include a suitable expert in child and adolescent psychiatry/clinical psychology, the investigating authorities may, in consultation with the DCPU, engage an expert from outside the register, provided that the expert holds equivalent qualifications.
Paragraph 63Upon receipt of the psychological/psychiatric evaluation report, the investigating authorities shall take the opinion of the expert into consideration, along with other relevant material and circumstances, to decide whether there is a “reason to believe” that the accused has committed the offence, for the purpose of effectuating his arrest. At this juncture, it is important to clarify the following: a. First, the investigating officer or the SJPU would not be bound by the findings or the contents of the expert report. As noted above, the discretion to arrest lies with the concerned police officer. The report is only a tool in aid of exercise of discretion diligently in the larger context in which the allegations of sexual abuse and/or sexual assault are levelled. It does not control it. Whether coercive steps in the form of arrest ought to be taken remains for the investigating officer to decide, after considering the report along with the other relevant circumstances of the case. b. Secondly, the expert report shall not be the sole basis for filing of the chargesheet, or a closure report. Its purpose is limited to aiding the decision of the investigating agency. The contents of the expert 60 report will be a relevant factor in the decision-making process of the investigating officer, in deciding whether to file a chargesheet or a closure report. The investigation shall continue in accordance with law.
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