Flagging the rising menace of false sexual-assault complaints involving children in matrimonial cases filed by estranged couples under the POCSO Act, the Supreme Court on Thursday said there will be no immediate arrest of an accused if the offence is alleged to have been committed by a parent or a family member living under the same roof.
In a landmark verdict, a bench of Justices J B Pardiwala and K V Viswanathan directed that a psychological or psychiatric evaluation of the child by experts is a must, before police or courts form their opinion to arrest the parent or family member staying under the same roof against whom allegations have been made.
It said the trauma that a child is put through in the process and the accusation can damage the very fabric of the parent-child relationship and the resultant wound is bound to leave an indelible scar in the minds of both.
The bench said this is independent of the hurt, humiliation and public opprobrium the accused parent faces, even long after exoneration from the charges.
“What is alarming is that this tendency of making false accusations is on the rise. Instances are not infrequent where gullible parties are misguided by their advisors, including in some cases by recalcitrant legal professionals, who, in their pursuit of the motto of ‘win at any cost’, end up fuelling the fire,” it said.
The court said very often, an enraged parent, who is engulfed by anger and blinded by ego, falls prey to these machinations, oblivious to the consequences that may ensue.
Laying down crucial safeguards, the bench said there shall not be any immediate arrest if threshold conditions like (i) an offence under the Protection of Children from Sexual Offences (POCSO) Act is alleged to have been committed by a parent or any other family member living under the same roof as the child victim and (ii) 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, thereby indicating the possibility of a strained relationship.
The court said it 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 exists between the parents.
“Such caution, which must necessarily accompany the exercise of the power to arrest, has already been emphasised by a long line of decisions of this court, and also by the plain words of the relevant statutory provisions,” it said.
Pointing out that the top court has on multiple occasions reiterated that arrest is not mandatory, even for cognisable offences, and that such power to arrest should be exercised only after scrupulously complying with the relevant conditions under the law, the bench said “irreparable harm” is caused to an accused parent or a family member living under the same roof if the person is arrested by the investigating authorities.
“When the above-stated threshold conditions are met, post the registration of an FIR, we are of the considered opinion that the investigating officer should not act in haste or take coercive actions in the form of arrest immediately,” it said.
The court said in such instances, although the nature of the allegations made in the FIR may indicate that such an offence has been committed, yet the surrounding circumstances, more particularly, the strained relationship between the parents, may raise a doubt as to whether those allegations simpliciter can safely be relied upon.
The bench directed that the investigating officer or the Special Juvenile Police Unit (SJPU) shall engage the services of an expert in child and adolescent psychiatry or clinical psychology, in consultation with the District Child Protection Unit (DCPU) or the District Legal Services Authority (DLSA), where a DCPU is not available, for the purpose of aiding the investigation.
It said in exceptional cases, where the material is palpable, the investigating officer, for reasons to be recorded in writing, may dispense with the engagement of the services of an expert in child and adolescent psychiatry or psychology.
“It must be ensured that the evaluation is conducted in an independent manner, free from any influence of the disgruntled parent and the investigating authorities,” the court said.
It said upon receipt of the psychological or 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.
Similarly, for complaint cases filed before a special court, the bench said an order taking cognisance and summoning an accused must reflect that there has been application of mind to the facts of the case.
It said the special court shall also involve the services of an expert in child and adolescent psychiatry or clinical psychology, and such an expert shall conduct a psychiatric or psychological evaluation of the child victim and submit a report to the court, detailing the results of such evaluation.
The court passed the order in a matrimonial dispute involving an estranged couple from Bengaluru, where the wife had alleged sexual assault of the child. The case was probed by the CBI and the allegation turned out to be false.
The top court restored the child’s custody to the father, taking into account the aspect of the minor’s welfare.
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