Delhi High Court Issues Landmark Directions Against Repeated Summoning of Child Victims, Insistence on Presence During Bail Hearings In POCSO

"The process itself becomes a punishment for the victim by exposing her to the accused/his counsel frequently and reopening her emotional and psychological wounds", In a significant ruling that consolidates the entire framework of protection available to child victims and vulnerable witnesses under the POCSO Act, the Delhi High Court has issued comprehensive directions mandating that Special Courts cease the practice of repeatedly summoning minor victims for testimony and stop insisting upon their presence at every hearing of bail applications filed by accused persons.

Dr. Justice Swarana Kanta Sharma took serious note of the re-traumatisation caused to three minor girls — each approximately 15 years of age — who were collectively summoned on nineteen occasions for testimony across multiple dates, and required to appear before the court on approximately eleven separate occasions solely for the purpose of bail application hearings.

The judgment, which consolidates judicial precedents, statutory safeguards under the POCSO Act and the High Court of Delhi's Guidelines for Recording of Evidence of Vulnerable Witnesses, 2024 into a single authoritative reference, has been directed to be circulated to all Trial Courts, Special Courts and Judicial Officers in Delhi. Its core message is unambiguous: the criminal justice process, designed to deliver justice to victims of sexual crimes, cannot be permitted to visit upon them the very harm it is meant to remedy.

Background of the Case

The three petitioners — minor girls aged approximately 15 years at the time of the alleged incident — had gone missing on 6th August, 2022. A missing complaint was filed at Police Station Defence Colony by their respective family members. The girls were traced on 8th August, 2022, at P.S. Karol Bagh. In their statements under Section 161 Cr.P.C. recorded on 9th and 10th August, 2022, all three minors disclosed that they had been subjected to repeated sexual abuse, criminal intimidation and assault by five accused persons over two days. Their statements were also recorded under Section 164 Cr.P.C., and the accounts of all three victims broadly corroborated each other.

A chargesheet was filed in September 2022 against four of the accused, followed by a supplementary chargesheet in February 2023 against the fifth. Charges under Sections 342, 328, 363, 366A, 370, 376, 506 and 120B IPC and Section 6 of the POCSO Act were framed against all five accused in October 2023.

Thereafter began what the Court has characterised as a harrowing ordeal for the victims within the trial process itself. Petitioner No. 1 was summoned on nine separate occasions, petitioner No. 2 on four occasions and petitioner No. 3 on six occasions — solely for the recording of their testimony — before their evidence could ultimately be fully recorded. Additionally, on approximately eleven occasions, the victims were required to appear before the Trial Court in connection with bail applications filed and then withdrawn by the accused. The victims conveyed through their support persons that they were experiencing profound distress and reluctance to appear before the court again.

The immediate trigger for the writ petition was an order dated 22nd April, 2025, by which the Trial Court dismissed an exemption application filed on behalf of petitioner No. 1 and issued bailable warrants of Rs. 5,000 against her, despite being apprised of her fragile mental and emotional state. The High Court set aside those warrants on 28th May, 2025, and thereafter took up the broader prayers for directions to protect child victims during trial.

Legal Issues and Court's Observations

The Evolving Concept of the Vulnerable Witness

The Court traced the judicial evolution of the concept of a "vulnerable witness" through a line of Supreme Court precedents beginning with State of Punjab v. Gurmit Singh (1996), which had emphasized that rape trials must ordinarily be conducted in camera under Section 327 Cr.P.C. to create a more dignified environment for the victim to depose. In Sakshi v. Union of India (2004), the Supreme Court recognised that the mere presence of the accused in full view may induce fear in the victim's mind and hamper truthful testimony, and issued directions for protective measures including screens, written questions in cross-examination, and breaks during testimony.

The landmark expansion of the concept came in Smruti Tukaram Badade v. State of Maharashtra (2022), where the Supreme Court held that the term "vulnerable witness" is not confined to children alone, but extends to victims of sexual offences of all ages, persons with mental illness, persons with disabilities, witnesses under threat perception under the Witness Protection Scheme, and any other witness deemed vulnerable by the court. The Supreme Court had also directed all High Courts to adopt Vulnerable Witness Deposition Centre (VWDC) Schemes and to establish at least one permanent VWDC in every District Court establishment.

"The fairness of the process of trial as well as the pursuit of substantive justice are determined in a significant measure by the manner in which statements of vulnerable witnesses are recorded," the Supreme Court had held, a passage reproduced by the Delhi High Court with full emphasis.

Section 33(5) POCSO vs Section 311 Cr.P.C. — The Special Law Prevails

A central legal question addressed by the Court was the relationship between Section 33(5) of the POCSO Act — which mandates that the Special Court shall ensure that the child is not called repeatedly to testify — and Section 311 Cr.P.C., which empowers any court to recall a witness if essential for a just decision.

The Court, applying the well-established principle of generalia specialibus non derogant (the general does not override the special), held that the special protection afforded to child victims under Section 33(5) of the POCSO Act must prevail over the general power of recall under Section 311 Cr.P.C. Once a child witness has been extensively examined, recall should not ordinarily be permitted if it would defeat the very object of Section 33(5). The discretion to recall must be exercised with "circumspection, caution and utmost sensitivity," as this Court had held in Rakesh v. State (NCT of Delhi) (2023).

"While the bar under Section 33(5) POCSO Act may not be absolute and balance of rights needs to be maintained under Section 33(5) of POCSO Act and Section 311 of Cr.P.C., at the same time, the Court's discretion in exercising its power to re-summon a witness for cross-examination has to be exercised with circumspection, caution and utmost sensitivity," the Court reiterated.

The Court also took note of Section 35 of the POCSO Act, which mandates that the evidence of the child shall be recorded within thirty days from the date of taking cognizance, with reasons to be recorded for any delay, and that the trial should as far as possible be completed within one year. These provisions, the Court held, reflect the legislative intent that trials involving child victims must proceed expeditiously — and the mandate of Section 33(5) against repeated summoning applies not only to recall after evidence is recorded, but equally to repeated summoning during the initial process of recording examination-in-chief and cross-examination without effective progress.

"Whenever the child victim is summoned for recording of testimony, the Special Court should endeavour to fix specific dates and ensure that the necessary arrangements are in place so that the examination-in-chief and cross-examination are conducted without unnecessary adjournments."

Video Conferencing and Live-Link Testimony — An Obligation, Not an Option

The Court examined in detail the framework for recording testimony of vulnerable witnesses through video-conferencing under Section 36 of the POCSO Act and the Delhi High Court's Guidelines of 2024 for Recording of Evidence of Vulnerable Witnesses. Section 36, the Court noted, specifically mandates that the child shall not be exposed to the accused while giving testimony, and expressly permits use of video-conferencing, single-visibility mirrors, curtains or other suitable devices.

The Guidelines, framed pursuant to the Supreme Court's directions in Smruti Tukaram Badade, define the concept of a "live link" — audio-video electronic means whereby a witness not physically present in the courtroom gives evidence and is cross-examined through remote communication. The Guidelines permit any party, the prosecutor or the guardian of the vulnerable witness to apply for evidence to be recorded outside the courtroom through live-link television, and also empower the court to pass such directions on its own motion.

The Court reiterated the legal position settled in State of Maharashtra v. Dr. Praful B. Desai (2003) that recording of evidence through video-conferencing satisfies the requirement of Section 273 Cr.P.C. mandating evidence to be recorded in the presence of the accused, since the technological means enable the accused and his counsel to effectively cross-examine the witness, while the demeanour of the witness remains visible to the court.

"In appropriate cases, and particularly where a request is made by the victim, the facility of video-conferencing or live-link testimony, as envisaged under Section 36 of the POCSO Act and the Guidelines of the High Court of Delhi for Recording of Evidence of Vulnerable Witnesses, 2024, must be utilised for recording the testimony."

Bail Hearings Must Not Become an Instrument of Re-Traumatisation

Perhaps the most immediately impactful directions concern the practice — evidently prevalent in Delhi courts — of requiring child victims of sexual offences to appear before the court, either physically or virtually, on repeated dates during the hearing of bail applications.

The Court placed on record the directions issued by a Coordinate Bench in XXXX v. State (order dated 11.01.2023), which had recognised that the psychological impact of a POCSO victim being present during bail arguments is grave — given that such arguments frequently involve allegations, accusations, and challenges to the character and integrity of the victim and her family. The Coordinate Bench had directed that the victim's views regarding bail may be recorded at the first appearance; thereafter, she may be represented through counsel, parent, guardian, support person or the Legal Services Authority, and her repeated presence ought not to be insisted upon.

In the present case, however, the victims had been called to appear on approximately eleven occasions solely for bail hearing arguments — entirely contrary to the spirit of those directions. The Court firmly reiterated:

"The objections of the victim child in such cases, to the grant of bail to the accused, could be recorded at the first instance itself. Once the views of the victim have been noted, the bail application can thereafter be contested on her behalf by her counsel or authorised representative. Requiring the victim to remain present on multiple dates of hearing of a bail application may result in unnecessary distress and may defeat the very purpose of the safeguards intended to minimise repeated exposure of the victim to the court process."

Decision

Disposing of the petition, the Delhi High Court has consolidated the following directions as binding legal principles for all Special Courts in Delhi:

First, the expression "vulnerable witness" includes victims of sexual offences and child victims under the POCSO Act, who require a sensitive and protective approach throughout investigation and trial. Second, the statutory scheme of the POCSO Act mandates child-friendly procedures ensuring that the child victim is not subjected to repeated or unnecessary court appearances, and that the trial process does not result in re-victimisation. Third, courts are empowered and indeed obligated, in appropriate cases, to record evidence through video-conferencing or other suitable modes, minimising the child's exposure to the accused. Fourth, at the bail stage, once the victim's objections are on record, her repeated physical or virtual presence on every date of hearing ought to be dispensed with. Fifth, all judicial precedents and practice directions governing protection of vulnerable witnesses must be followed in their true letter and spirit.

Date of Decision: 11th March, 2026