IN THE SUPREME COURT OF INDIA
Writ Petition (Civil) No. 565 of 2012, W.P. (Crl.) Nos. 1, 22, 148 of 2013,
Decided On: 11.12.2018
Nipun Saxena Vs. Union of India (UOI) and Ors.
Madan B. Lokur and Deepak Gupta, JJ.
Citation: (2019) 2 SCC 703
1. How and in what manner the identity of adult victims of rape and children who are victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule, social ostracisation and harassment, is one of the issues which arises in these cases.
2. We are dividing this judgment into two parts. The first part deals with the victims of the offence of rape under the Indian Penal Code, 1860 (for short 'IPC') and the second part deals with victims who are subjected to offences under the Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO').
3. In this judgment any reference to "media" will include all types of media including press, electronic and social media etc.
4. Unfortunately, in our society, the victim of a sexual offence, especially a victim of rape, is treated worse than the perpetrator of the crime. The victim is innocent. She has been subjected to forcible sexual abuse. However, for no fault of the victim, society instead of empathizing with the victim, starts treating her as an 'untouchable'. A victim of rape is treated like a "pariah" and ostracised from society. Many times, even her family refuses to accept her back into their fold. The harsh reality is that many times cases of rape do not even get reported because of the false notions of so called 'honour' which the family of the victim wants to uphold. The matter does not end here. Even after a case is lodged and FIR recorded, the police, more often than not, question the victim like an accused. If the victim is a young girl who has been dating and going around with a boy, she is asked in intimidating terms as to why she was dating a boy. The victim's first brush with justice is an unpleasant one where she is made to feel that she is at fault; she is the cause of the crime.
5. If the victim is strong enough to deal with the recriminations and insinuations made against her by the police, she normally does not find much succour even in court. In Court the victim is subjected to a harsh cross-examination wherein a lot of questions are raised about the victim's morals and character. The Presiding Judges sometimes sit like mute spectators and normally do not prevent the defence from asking such defamatory and unnecessary questions. We want to make it clear that we do not, in any manner, want to curtail the right of the defence to cross-examine the prosecutrix, but the same should be done with a certain level of decency and respect to women at large. Over a period of time, lot of effort has been made to sensitise the courts, but experience has shown that despite the earliest admonitions, the first as far back as in 19961, the Courts even today reveal the identity of the victim.
6. Section 228A was introduced in the Indian Penal Code vide Amendment Act No. 43 of 1983 with effect from 25.12.1983 and reads as follows:
228A. Disclosure of identity of the victim of certain offences etc.-
(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence Under Section 376, Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB or Section 376E is alleged or found to have been committed (hereafter in this Section referred to as the victim) shall be punished with imprisonment of either des c r i p tion for a term which may extend to two years and shall also be liable to fine.
(2) Nothing in Sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is-
(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim:
8. Vide the Amendment Act of 1983 cases of rape, gang rape etc. were excluded from the category of cases to be tried in open Court. Later other similar offences were included vide Amendment Act of 2013.
9. Sub-section (1) of Section 228A, provides that any person who makes known the name and identity of a person who is an alleged victim of an offence falling Under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E commits a criminal offence and shall be punishable for a term which may extend to two years.
10. What is however, permitted Under Sub-section (2) of Section 228A Indian Penal Code is making known the identity of the victim by printing or publication under certain circumstances described therein. Any person, who publishes any matter in relation to the proceedings before a Court with respect to such an offence, without the permission of the Court, commits an offence. The Explanation however provides that printing or publication of the judgment of the High Courts or the Supreme Court will not amount to any offence within the meaning of the Indian Penal Code.
11. Neither the Indian Penal Code nor the Code of Criminal Procedure define the phrase 'identity of any person'. Section 228A Indian Penal Code clearly prohibits the printing or publishing "the name or any matter which may make known the identity of the person". It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. We are clearly of the view that the phrase "matter which may make known the identity of the person" does not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The intention of the law makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future.
12. A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity. In this regard, we may make reference to some ways and means where the identity is disclosed without naming the victim. In one case, which made the headlines recently, though the name of the victim was not given, it was stated that she had topped the State Board Examination and the name of the State was given
13. Sub-section (2) of Section 228A Indian Penal Code makes an exception for police officials who may have to record the true identity of the victim in the police station or in the investigation file. We are not oblivious to the fact that in the first information report (for short 'FIR') the name of the victim will have to be disclosed. However, this should not be made public and especially not to the media. We are of the opinion that the police officers investigating such cases and offences should also as far as possible either use a pseudonym to describe the victim unless it is absolutely necessary to write down her identity.
15. Coming to Clause (c) of Sub-section (2) of Section 228A Indian Penal Code, we are of the opinion that where the victim is a minor, Section 228A will no longer apply because of the enactment of POCSO which deals specifically with minors. In fact, the words 'or minor' should for all intents and purposes be deemed to be deleted from Clause (c) of Sub-section (2) of Section 228A Indian Penal Code.
16. The vexatious issue which troubles us is with regard to the next of kin of the victim giving an authority to the Chairman or the Secretary of recognized welfare institutions or organizations to declare the name. As per the materials placed before us till date neither the Central Government nor any State Government has recognized any such social welfare institutions or organizations to whom the next of kin should give the authorization.
18. We may also add that in this modern age where we have dealt with cases where daughters have been raped by their fathers, where victims of rape especially minor victims are very often subjected to this heinous crime either by family members or friends of the family, it is not unimaginable that the so called next of kin may for extraneous reasons including taking money from a media house or a publishing firm which wants to publish a book, disclose the name of the victim. We do not, in any manner, want to comment upon the role of the parents but we cannot permit even one case of this type and in the larger interest we feel that, as a matter of course, the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, without permission of the competent authority.
19. It has been urged on behalf of the Union of India that the words "next of kin" will have to be given the same definition as is contemplated under the Indian Succession Act, 1925. We do not want to enter into this dispute. As pointed by us, in certain cases, the interest of the next of kin may not be the same as the interest of the victim. In such circumstances, the applicant may not be the next of kin, but the "next friend" of the child, who may be entitled to move such an application. It will be for the Court or the competent authority to decide who is the "next friend".
21. There may be cases where the identity of the victim, if not her name, may have to be disclosed. There may be cases where a dead-body of a victim is found. It is established that the victim was subjected to rape. It may not be possible to identify the victim. Then, obviously her photograph will have to be published in the media. Even here, we would direct that while this may be done, the fact that such victim has been subjected to a sexual offence need not be disclosed. There may be other situations where the next of kin may be justified in disclosing the identify of the victim. If any such need should arise, then we direct that an application to authorise disclosure of identity should be made only to the Sessions Judge/magistrate concerned and the said Sessions Judge/magistrate shall decide the application on the basis of the law laid down by us.
22. As far as Sub-section (3) of Section 228A Indian Penal Code is concerned, we would like to make it clear that the Indian Penal Code clearly lays down that nobody can print or publish any matter in relation to any proceedings falling within the purview of Section 228A and in terms of Section 327(2) Code of Criminal Procedure. These are in camera proceedings and nobody except the presiding officer, the court staff, the accused, his counsel, the public prosecutor, the victim, if at all she wants to be present or the witness shall be there. It is the bounden duty of all of them to ensure that what happens in court is not disclosed outside. This is not to say that there can be no reporting of such cases.
23. Sub-section (3) of Section 228A Indian Penal Code makes printing or publication of any matter in relation to such proceedings before a court an offence unless its publication is made with the previous permission of such court.
24. This Court, more than two decades back in Gurmit Singh's case (supra) raised a note of caution. It found that sexual crimes against women were rising. This Court held that victims of sexual abuse or assault were treated without any sensitivity during the course of investigation and trial. The Court further held that trial of rape cases in camera should be the Rule and open trial an exception. Though the Court did not refer to Section 228A Indian Penal Code, the following observations are pertinent:
22. There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations.
24. It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar a surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood.
27. Before parting with this aspect, we would like to deal with a situation not envisaged by the law makers. As we have held above, Section 228A Indian Penal Code imposes a clear cut bar on the name or identity of the victim being disclosed. What happens if the Accused is acquitted and the victim of the offence wants to file an appeal Under Section 372 Code of Criminal Procedure? Is she bound to disclose her name in the memo of appeal? We are clearly of the view that such a victim can move an application to the Court praying that she may be permitted to file a petition under a pseudonymous name e.g. 'X' or 'Y' or any other such coded identity that she may choose.
32. No doubt, it is the duty of the media to report every crime which is committed. The media can do this without disclosing the name and identity of the victim in case of rape and sexual offences against children. The media not only has the right but an obligation to report all such cases. However, media should be cautious not to sensationalise the same. The media should refrain from talking to the victim because every time the victim repeats the tale of misery, the victim again undergoes the trauma which he/she has gone through. Reportage of such cases should be done sensitively keeping the best interest of the victims, both adult and children, in mind. Sensationalising such cases may garner Television Rating Points (TRPs) but does no credit to the credibility of the media.
33. Where a child belongs to a small village, even the disclosure of the name of the village may contravene the provisions of Section 23(2) POCSO because it will just require a person to go to the village and find out who the child is. In larger cities and metropolis like Delhi the disclosure of the name of the city by itself may not lead to the disclosure of the identity of the child but any further details with regard to the colony and the area in which the child is living or the school in which the child is studying are enough (even though the house number may not be given) to easily discover the identity of the child. In our considered view, the media is not only bound not to disclose the identity of the child but by law is mandated not to disclose any material which can lead to the disclosure of the identity of the child. Any violation of this will be an offence Under Section 23(4).
34. The learned amicus curiae urged that child for purposes of publication should only mean a living child. Her contention appears to be that when the child is dead then the name and identity of child can be disclosed. Her submission is based on the assumption that if the name and identity of the child is disclosed, public sentiment can be generated and a movement can be started to get justice for the child. According to her, it is difficult to garner such support if the name of the deceased child victim is not disclosed. We are not at all in agreement with this submission. The same reasoning which we have given above for victims will apply to dead victims also. In the case of dead victims, we have to deal with another factor. We have to deal with the important issue that even the dead have their own dignity. They cannot be denied dignity only because they are dead.
36. The name, address, school or other particulars which may lead to the identification of the child in conflict with law cannot be disclosed in the media. No picture of such child can be published. A child who is not in conflict with law but is a victim of an offence especially a sexual offence needs this protection even more.
37. The Sikkim High Court in Subash Chandra Rai v. State of Sikkim MANU/SI/0012/2018 : 2018 CriLJ 3146 dealing with this issue held as follows:
27.The mandate of the provision requires no further clarification. Suffice it to say that neither for a child in conflict with law, or a child in need of care and protection, or a child victim, or witness of a crime involved in matter, the name, address, school or other particulars which could lead to the child being tracked, found and identified shall be disclosed, unless for the reasons given in the proviso extracted hereinbefore. The Police and Media as well as the Judiciary are required to be equally sensitive in such matters and to ensure that the mandate of law is complied with to the letter.
38. In the case of Bijoy v. State of West Bengal MANU/WB/0140/2017 : 2017 CriLJ 3893, the Calcutta High Court has given a detailed judgment setting out the reasons while dealing with the provisions of POCSO and held that neither during investigation nor during trial the name of the victim should be disclosed.
39. Before parting we would like to emphasize the need to have child friendly courts. POCSO mandates setting up of child-friendly courts. Though some progress has been made in this regard, a lot still requires to be done.
40. Any litigant who enters the court feels intimidated by the atmosphere of the court. Children and women, especially those who have been subjected to sexual assault are virtually overwhelmed by the atmosphere in the courts. They are scared. They are so nervous that they, sometimes, are not even able to describe the nature of the crime accurately. When they are cross-examined in a hostile and intimidatory manner then the nervousness increases and the truth does not come out.
41. It is, therefore, imperative that we should have courts which are child friendly. Section 33(4) POCSO enjoins on the Special Court to ensure that there is child friendly atmosphere in court. Section 36 lays down that the child should not see the Accused at the time of testifying. This is to ensure that the child does not get scared on seeing the alleged perpetrator of the crime. As noted above, trials are to be conducted in camera. Therefore, there is a need to have courts which are specially designed to be child friendly and meet the needs of child victims and the law.
42. These courts need not only be used for trying cases under the POCSO but can also be used as trial courts for trying cases of rape against women. In fact, it would be in the interest of children and women, and in the interest of justice if one stop centres are also set up in all the districts of the country as early as possible. These one stop centres can be used as a central police station where all crimes against women and children in the town/city are registered. They should have well trained staff who are sensitive to the needs of children and women who have undergone sexual abuse. This staff should be given adequate training to ensure that they talk to the victims in a compassionate and sensitive manner.
43. In view of the aforesaid discussion, we issue the following directions:
1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.
2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.
3. FIRs relating to offences Under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of Indian Penal Code and offences under POCSO shall not be put in the public domain.
4. In case a victim files an appeal Under Section 372 Code of Criminal Procedure, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.
5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.
6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.
7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind Under Section 228A(2)(c) of Indian Penal Code should be made only to the Sessions Judge concerned until the Government acts Under Section 228A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.
8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.
9. All the States/Union Territories are requested to set up at least one 'one stop centre' in every district within one year from today.
44. A copy of this judgment be sent to the Registrar General of all the High Courts so that the same can be placed before the Chairpersons of the Juvenile Justice Committee of all the High Courts for issuance of appropriate orders and directions and also to ensure that sincere efforts are made to set up one stop centres in every district.
45. In view of the above, we dispose of these petitions as far as issues dealt with hereinabove are concerned.
ANNEXURE - 1
(Directions issued by the Calcutta High Court in the case of Bijoy v. State of West Bengal, MANU/WB/0140/2017 : 2017 Cri.L.J. 3893)
1. Police Officer or the Special Juvenile Police Unit receiving complaint as to commission or likelihood of commission of offence under the Act shall forthwith register the same in terms of Section 19 of the Act and furnish a copy free of cost to the child and/or his/her parents and inform the child or his/her parents or any person in whom the child has trust and confidence of his/her right to legal aid and representation and if the child is unable to arrange for his/her legal representation, refer the child to the District Legal Services Authority for necessary legal aid/representation Under Section 40 of the Act. Failure to register First Information Report in respect of offences punishable Under Sections 4, 6, 7, 10 & 12 of POCSO shall attract penal liability Under Section 166-B of the Indian Penal Code as the aforesaid offences are cognate and/or pari materia to the Penal Code offences referred to in the said penal provision.
2. The Police Officer on registration of FIR shall promptly forward the child for immediate emergency medical aid, whenever necessary, and/or for medical examination Under Section 27 of the Act and ensure recording of the victim's statement before Magistrate Under Section 25 of the Act. In the event, the Police Officer or the Special Juvenile Police Unit is of the opinion that the child falls within the definition of "child in need of (sic) care and protection" as defined Under Section 2(d) of the Juvenile Justice (Care and Protection of Children) Act, 2000, [as suitably modified by the Juvenile Justice (Care and Protection of Children) Act, 2015 (sic)] the said Police Officer or the Special Juvenile Police Unit shall forthwith forward the child to the jurisdictional Child Welfare Committee for providing care, protection, treatment and rehabilitation of the child in accordance with law.
3. Whenever a registration of FIR is reported to the Special Court, the Special Court shall make due enquiries from the investigating agency as to compliance of the aforesaid requirements of law as stated in (1) and (2) above and pass necessary orders to ensure compliance thereof in accordance with law, if necessary.
4. Officer-in-Charge of the police station and the Investigating Officer in the case including the Special Juvenile Police Unit shall ensure that the identity of the victim is not disclosed in the course of investigation, particularly at the time of recording statement of the victim Under Section 24 of the Act (which as far as practicable may be done at the residence or a place of choice of the victim or that of his/her parents/custodian, as the case may be), his/her examination before Magistrate Under Section 25 of the Act, forwarding of the child for emergency medical aid Under Section 19(5) and/or medical examination Under Section 27 of the Act.
5. The Investigating Agency shall not disclose the identity of the victim in any media and shall ensure that such identity is not disclosed in any manner whatsoever except the express permission of the Special Court in the interest of justice. Any person including a police officer committing breach of the aforesaid requirement of law shall be prosecuted in terms of Section 23(4) of the said Act.
6. Trial of the case shall be held in camera in terms of Section 37 of the Act and evidence of the victim shall be promptly recorded without unnecessary delay and following the procedure of screening the victim from the Accused person as provided in Section 36 of the Act. The evidence of the victim shall be recorded by the Court in a child friendly atmosphere in the presence of the parents, guardian or any other person in whom the child has trust and confidence by giving frequent breaks and the Special Court shall not permit any repetitive, aggressive or harassive questioning of the child particularly as to his/her character assassination which may impair the dignity of the child during such examination. In appropriate cases, the Special Court may call upon the defence to submit its questions relating to the incident during cross-examination in writing to the Court and the latter shall put such questions to the victim in a language which is comprehensible to the victim and in a decent and non-offensive manner.
7. In the event, the victim is abroad or is staying at a far off place or due to supervening circumstances is unable to physically attend the Court to record evidence, resort shall be taken for recording his/her evidence by way of video conference.
8. The identity of the victim particularly his/her name, parentage, address or any other particulars that may reveal such identity shall not be disclosed in the judgment delivered by the Special Court unless such disclosure of identity is in the interest of the child.
9. The Special Court upon receipt of information as to commission of any offence under the Act by registration of FIR shall on his own or on the application of the victim make enquiry as to the immediate needs of the child for relief or rehabilitation and upon giving an opportunity of hearing to the State and other affected parties including the victim pass appropriate order for interim compensation and/or rehabilitation of the child. In conclusion of proceeding, whether the Accused is convicted or not, or in cases where the Accused has not been traced or had absconded, the Special Court being satisfied that the victim had suffered loss or injury due to commission of the offence shall award just and reasonable compensation in favour of the victim. The quantum of the compensation shall be fixed taking into consideration the loss and injury suffered by the victim and other related factors as laid down in Rule 7(3) of the Protection of Children from Sexual Offences Rules, 2012 and shall not be restricted to the minimum amounts prescribed in the Victim Compensation Fund. The interim/final compensation shall be paid either from the Victim Compensation Fund or any other special scheme/fund established Under Section 357A of the Code of Criminal Procedure, 1973 (sic) or any other law for the time being in force through the State Legal Services Authorities or the District Services Authority in whose hands the Fund is entrusted. If the Court declines to pass interim or final compensation in the instant case it shall record its reasons for not doing so. The interim compensation, so paid, shall be adjusted with final compensation, if any, awarded by the Special Court in conclusion of trial in terms of Section 33(8) of the Act.
10. The Special Court shall ensure that the trial in cases under POCSO is not unduly protracted and shall take all measures to conclude the trial as expeditiously as possible preferably within a year from taking cognizance of the offence without granting unreasonable adjournment to the parties in terms of Section 35(2) of the Act.
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