Saturday, 9 August 2014

General Rules of Procedure for CWCs to deal POCSO Act cases

  1.   To ensure a fair and just proceeding, the CWC considering a case initiated under POCSO may look for guidance to the procedures laid down for CWCs in cases  initiated under the JJ Act. The JJ Act provides in Section 54 that the procedures for enquiries by the CWC should be, to the extent possible, as provided for in a summons-case for trial under the Code. The CWCs considering POCSO cases are advised to proceed in their inquiries according to these rules. 
  2.  CWCs acting under POCSO are also advised, when conducting searches or other  investigations, to act within the procedures and limits of the powers of a magistrate of  the first class under the Code as has been provided for CWCs under the JJ Act in Section 29(5) thereof  
  3. The constitution of the CWC shall be as provided in the JJ Act, subject to the following: The quorum for CWCs considering cases under Rules 4(4), 4(5) and/or 4(6) of the POCSO Rules shall include at least two members each having not less  than 10 years of active experience as litigator (pleader) or judge, or a combination of experience as litigator (pleader) and judge totaling 10 years. Any decision under the said rules that does not have the concurrence of at least one such member shall  require consent of all other members of the CWC. Subject to the foregoing, all decisions by the CWC may be taken by a majority of those present and voting 
  4.  In making any decision (whether at the initiation of proceedings under POCSO, or thereafter, including when reviewing previous decisions) as to the custody of the child, of whatever duration, the CWC should facilitate participation in such decision of the non-accused parents and where they are both dead, unable to participate or untraceable, of the non-accused Relatives (other than the parents) of the child. The CWC should also give the accused parent an opportunity to be heard in relation to the custody of the child. To the extent that the CWC is considering refusal of custody or permanent or temporary termination of custody of a Claimant Relative, it must treat the Claimant Relative as a respondent in a judicial proceeding who is contesting denial of custody to them with all attendant rights of natural justice, due process and a fair hearing. In order to achieve this, the CWC should in relation to any proceedings under or ancillary to Rule 4(4) or (5):

(a)   give notice of such proceedings, where possible in advance, to the parents and where they are both accused, dead, unable to participate or untraceable, to all other non-accused Relatives;
(b)    make efforts to trace the non-accused parents and where they are both accused, dead, unable to participate or untraceable, to trace all other non-accused Relatives (including minor siblings) and to issue and publish summonses upon them;
(c)    conduct proceedings in the mother tongue of the Concerned Relatives or provide them with competent translators so as to ensure that they follow the proceedings;  
(d)    assist Concerned Relatives in obtaining legal representation;
(e)   furnish Concerned Relatives with the entire case record and all documents or other evidence or materials being considered by the CWC in arriving at any decision in such proceedings;
(f)      ensure a full and fair hearing to Claimant Relatives prior to passing any orders;
(g)   permit Claimant Relatives to cross-examine any party (other than the child) testifying before the CWC against grant of custody to them;
(h)   keep the parents and Immediate Relatives, and where they are all accused, dead, unable to participate or untraceable, the other Concerned Relatives informed as to where the child has been placed by the CWC; and
(i)     give full copies of all orders passed by it to the Concerned Relatives and arrange for official translations thereof in a language known to such parties upon their  request.

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