Prevent Disclosure Of Rape Victim’s Identity Even Indirectly

It is in the fitness of things that the Bombay High Court Bench at Aurangabad has recently on 19 January 2021 in a learned, latest, landmark and laudable judgment titled Sangita v. The State of Maharashtra [Criminal Public Interest Litigation No. 1 of 2016] has issued additional guidelines to restrain print/electronic media as well general public, using social media, from publishing information related to rape victim that could “directly or indirectly” disclose her identity. The Bench of Aurangabad Bench of Bombay High Court comprising of Justice TV Nalwade and Justice MG Sewlikar was hearing the plea of one Sangita who is the mother of a rape victim who sought directions to the print and electronic media that the name or identity of the rape victim should not be disclosed. It was underlined by the Bench that the victim of sexual offence undergoes not only physical trauma but also mental trauma for no fault of hers. Very rightly so!

To start with, the ball is set rolling by first and foremost observing in para 3 about the purpose of the petition that, “This Public Interest Litigation is fled by the petitioner seeking direction to the Print and Electronic Media that the name or identity of the rape victim should not be disclosed.”

While elaborating on the facts of the case, the Bench then enunciates in para 4 that, “Facts leading to this Public Interest Litigation are that the petitioner is the real mother of the victim. First Information Report No. I-336/2010 was registered with Tofkhana Police Station, District Ahmednagar, under Sections 363 and 366 of the Indian Penal Code and after arrest of the accused, Section 376 was added. It is however, alleged that despite having made the provisions under Section 228-A of the Indian Penal Code and despite having the directions been issued by the Honourable Supreme Court in the case of Nipun Saxena and another Vs. Union of India and others reported in (2019) 2 Supreme Court Cases 703, the Print and Electronic Media are publishing the details of the crime in such a manner that the identity of the victim is invariably disclosed. The petitioner has alleged that in this case also the local newspapers of Ahmednagar district i.e. Daily Sarvamat dated 23.02.2011 and 06.07.2015 highlighted the news in such a manner that the identity of her daughter was disclosed. Similarly, in Daily Punyanagari, Daily Sakal, Daily Divya Marathi and other newspapers the identity of the victim (not related to the victim i.e. daughter of the petitioner), is disclosed. The petitioner has alleged that because of the offence of rape, the victim suffers physical and mental trauma and publication of the news thereby disclosing the identity of the victim, causes severe mental agony to the victim. The petitioner had made several representations to find out whether there are any guidelines and whether any training is imparted to the media in this regard. She has further sought directions to the media not to disclose the details revealing the identity of the victim in the case of rape.”

To be sure, it is then stated in para 5 that, “Learned counsel Shri A.D. Ostwal was appointed as amicus curiae to assist the Court in this matter. He argued that the Honourable Supreme Court in the case of Nipun Saxena (supra) has issued various guidelines. Guidelines in this regard are also issued by the Delhi High Court. Kolkata High Court has also issued directions in the case of Bijoy @ Guddu Das Vs. State of West Bengal reported in (2017) 2 Cal LJ 224. These guidelines indicate that in no case name of the victim should either be disclosed nor the details revealing her identity shall be published. He argued that despite these directions, the Print Media and the Electronic Media give the details of the crime, relation of accused with the victim, details as regards the parents of the victim thereby revealing the identity of the victim. He has furnished proposed guidelines for the consideration of this Court.”

Be it noted, it is then observed in para 6 that, “It is true that the victim of sex offence undergoes not only physical trauma but also mental trauma. She has to undergo these agonies for no fault of hers. Keeping this object in view, Section 228-A of the Indian Penal Code was enacted which mandates that the identity of the victim in offences under Sections 376, 376-A, 376-B, 376-C, 376-D or 376-E should not be disclosed. Section 228-A of the Indian Penal Code reads thus :-

228-A 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 376-A, section 376-B, section 376-C, section 376-D or section 376-E] is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description 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.

Provided that no such authorisation shall be given by the next-of-kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation. Explanation – For the purposes of this subsection, “recognised welfare institution or organisation” means a social welfare institution or organisation recognised in this behalf by the Central or State Government.

(3) Whoever prints or publishes any matter in relation to any proceeding before a Court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation – The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.”

It would be instructive to have a glance at what para 8 says that, “The Honourable Supreme Court in the case of Nipun Saxena (supra), after considering Section 228-A of the Indian Penal Code and various provisions of Protection of Children from Sexual Offences Act, has issued following guidelines :-

50.1 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.

50.2 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 authorisation of the next of 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.

50.3 FIRs relating to offences under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or 376-E IPC and the offences under POCSO shall not be put in the public domain.

50.4 In case a victim files an appeal under Section 372 CrPC, 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.

50.5 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.

50.6 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.

50.7 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 228- A(2)(c) IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228-A(1)(c) and lays down criteria as per our directions for identifying such social welfare institutions or organisations.

50.8 In case of minor victims under POCSO, circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.

50.9 All the States/Union Territories are requested to set up at least one “One-Stop Centre” in every district within one year from today.”

More damningly, about flouting of the rules regarding the revelation of the identity of the victim, the Bench then minces no words to state in para 9 that, “Despite issuance of these guidelines, the Print Media and Electronic Media are reporting these offences in such a manner that the identity of the victim is established directly or indirectly. Learned counsel Shri Ostwal argued that the electronic media holds interviews of the victim/relatives of the victim which lead to revealing the identity of the victim. He argued that the victim or the relatives of the victim are least aware that by giving such interviews they are exposing themselves to the revelation of the identity of the victim.”

Honestly speaking, the Bench then concedes in para 10 that, “It is true that the electronic media and the print media publish news items giving details of the crime in such a manner that by reading the news item, one can easily establish identity of the victim. The electronic media holds interviews of the victims or relatives of the victims. The victim or relatives of the victim, most of the time, are not aware that by giving such interview they are revealing the identity of the victim. If the victim who is major or the relatives of such a victim voluntarily consent for disclosing her identity, in that case, no one can have any objection. The question arises when the victim or relatives of the victim do not want the identity to be revealed. In such cases, the media should act with circumspection and is expected to observe restraint. Publishing news item in detail thereby disclosing identity of the victim itself indicates that the media does not observe self-restraint. We do not mean to say that the media does it deliberately. But in their zeal to publish the news item fast, appropriate care is not taken in some cases and the news is reported by which the victim’s identity becomes known to the readers/viewers. To illustrate, we can take by way of sample the news items published in reference to the offence committed against the daughter of the petitioner. This news item clearly establishes the identity of the victim. It mentions the name of the petitioner (i.e. the mother of the victim) and address of the petitioner. It also mentions name and residence of the accused as well. The only thing left is the name of the victim. By this news item, one can easily establish the identity of the victim especially those who know the family of the victim.

As we see, it is then stated in para 11 that, “In another news item, the identity of the victim is disclosed. It is reported in Daily Lokmat. This clearly indicates that the identity of the victim is established. In this news item, all the details by which the identity of the victim can be established are given though the name of the accused and the name of the victim is not mentioned.”

What is worse is what is then stated in para 12 that, “On the basis of the judgment of the Honourable Supreme Court in the case of Nipun Saxena (supra) the Government of India, vide letter dated 16.01.2019, communicated the directions of the Honourable Supreme Court for their strict compliance. Despite this, the directions are followed in breach.”

What’s more, the Bench then adds in para 13 that, “Having considered the news item, it is evident that without mentioning the name of the victim, the identity of the victim can be established by giving the details as regards the name of parents of the victim or other relations of the victim, relation of the accused with the victim, residential address of the accused and the victim and other details. Learned counsel Shri Ostwal has produced a circular issued by the Special Additional Deputy Inspector of Police (Training and Special Squad) Maharashtra State, Mumbai. The said circular states that the petitioner had brought to the notice that because of lack of policy with the police department while releasing the information as regards sex offences, care is not taken that the identity of the victim is not disclosed. The said circular mentions that in the course of training subject as regards non-disclosure of identity of the victim should be included.”

With concern, the Bench then notes in para 14 that, “Despite clear directions by the Honourable Supreme Court, restricting/restraining media from disclosure of such information leading to identification of victim, media continues to indulge into giving details of the crime in such a manner that the victim can be identified easily. There are instances in which the news items mention the place of work of the victim or of the accused with reference to which identity of the victim is easily possible can be readily available or made known.”

Most significantly, the Bench then aptly observes in para 15 that, “The Honourable Supreme Court has dealt with the aspect of disclosure of the identity of the victim while preferring appeal. However, there can be disclosure of identity of victim while recording evidence during trial, recording statement of the accused under Section 313 of the Code of Criminal Procedure, framing charge, submitting remand report by the police. To avoid disclosure of identity of victim in the same, we propose, in addition to the directions of the Honourable Supreme Court in Nipun Saxena (supra), to issue the following directions to the print media, the electronic media, the people using social media such as WhatsApp, Facebook, Internet, Twitter etc.

The print media, the electronic media, the people using social media such as WhatsApp, Facebook, Internet, Twitter etc. while giving information / circulating information relating to offences under section 376, 376-A, 376-B, 376-C, 376-D or 376-E of the Indian Penal Code and the offences under Protection of Children from Sexual Offences Act, shall not publish/disclose following information in such a manner that the victim will be identified directly or indirectly :-

i) The names of the parents or relatives of the victim.

ii) Relation of the accused with the victim.

iii) Residential/occupational/work address of the accused and the victim and the village at which the victim and/ or accused live.

iv) Occupation of the parents or other relations of the victim and place of work of the victim and accused /their parents or any other relative in such a manner that the victim will be identified.

v) If the victim is a student, name of the school or college or any other educational institution or private coaching class or classes which the victim has joined for pursuing her hobbies such as music, drawing, dance, stitching, cooking etc.

vi) Details of family background of the victim.”

As a note of caution, the Bench then adds in para 16 that, “It is noticed that while framing of charge, recording evidence, recording statement of accused under section 313 of the Code of Criminal Procedure, name of the victim is disclosed. Therefore, while framing charge, mentioning name of the victim should be avoided. Instead he/she should be referred to as ‘X’ or any other alphabet the Court deems fit and proper. While recording evidence if the witness mentions the name of the victim, the Court shall record that “the witness stated the name of the victim but to conceal her identity, her name is not recorded.” And the victim should be referred to in the same manner as is done during the framing of charge.”

Furthermore, the Bench then adds in para 17 that, “If the witness is a victim, his/her name should not be disclosed while recording evidence. Her name, place of residence, age, occupation shall be kept in a sealed cover and in the name column, she can be referred in the same manner described while framing charge keeping the address column, occupation column blank.”

While continuing in the same vein, the Bench then holds in para 18 that, “The same procedure should be followed while recording statement under section 313 of the Code of Criminal Procedure. While recording statement under section 313 of the Code of Criminal Procedure, the Court shall refer the victim in the manner she is referred to while framing charge.”

Not stopping here, the Bench then further sounds a note of caution in para 19 holding that, “While forwarding remand report to the Magistrate or to the court dealing with remand, mentioning of name of the victim should be avoided. Instead she should be referred as ‘X’ or any other alphabet the Investigating Officer deems fit and proper.”

Of course, the Bench then advises electronic media in para 20 that, “According to Shri Ostwal, learned Amicus Curiae, the electronic media holds interviews of the victim or his/her relations. He submitted that because of these interviews, though care is taken to blur the face of the victim or his/her relations, identity of the victim can be disclosed by his/her voice. We hope that the electronic media will show restraint in holding interviews of the victims and/or their relatives and would take all precautions to avoid and prevent disclosure of the identity of the victim.”

Now coming to concluding paras. It is held in para 21 that, “In view of above directions, instant Public Interest Litigation is disposed of. Rule made absolute in above terms. We record our appreciation for the assistance rendered by Shri Ostwal, learned Amicus Curiae and learned APP Shri Salgare. Fees of the appointed counsel is quantified at Rs.15,000/- and it should be paid through the High Court Legal Services Authority, Sub-Committee at Aurangabad.”

It is worth noting that it is then observed in para 22 that, “The Registrar (Judicial) is directed to bring these directions to the notice of : The Registrar General of this Court for circulating to all the subordinate Courts; the Principal Secretary, Home Department, Government of Maharashtra; the Principal Secretary & R.L.A., Law and Judiciary Department; the Secretary, Indian Broadcasting Foundation, New Delhi and, the Secretary, Press Council of India, New Delhi.” Finally, it is then held in the last para 23 that, “Learned counsel Shri Ostwal stated that his fees shall be credited to the Chief Minister’s Relief Fund (for Covid-19).”

To conclude, it goes without saying that the landmark, laudable and learned directions given by the Bombay High Court Bench at Aurangabad to avoid and prevent disclosure of rape victim’s identity must be implemented in letter and spirit. Media, public and courts must all comply with these directions accordingly as we have already discussed above in detail! There can be no denying or disputing it!

Sanjeev Sirohi

Rape Victim Also Suffers Discrimination From Society

It is quite refreshing, rejuvenating and reasonable to learn that the Supreme Court most recently on January 20, 2021 in a latest, landmark, learned and laudable judgment titled Ms. X vs The State of Jharkhand & Ors in Writ Petition (Civil) No. 1352 of 2019 asserted quite unambiguously that a rape victim suffers not only a mental trauma but also discrimination from the society. This was held so by a three Judge Bench of the Apex Court comprising of Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah while disposing a writ petition filed by a rape victim belonging to a Scheduled Tribe in Jharkhand. The victim had approached the Apex Court in 2019 by filing a writ petition stating the purpose therein.

To start with, the ball is set rolling of this notable judgment authored by Justice Ashok Bhushan for himself, Justice R Subhash Reddy and Justice MR Shah by first and foremost pointing out in para 1 that, “This writ petition has been filed by a rape victim invoking the jurisdiction of this Court under Article 32 of the Constitution.”

To put things in perspective, the Bench then quite remarkably puts forth in para 2 that, “This Court entertained the writ petition and while issuing notice on 29.11.2020 passed the following order: “Issue notice. Mr. Tapesh Kumar Singh, learned standing counsel for the State of Jharkhand, accepts notice on behalf of respondent/State. Let the respondent/State file an affidavit giving details of all proceedings initiated by the petitioner or against her and the status of those proceedings. We, however, observe that the respondent no.3/Home Secretary shall also ensure that the concerned police authorities are instructed to ensure protection of the petitioner. List after four weeks.”

To be sure, it is then stated in para 3 that, “A counter-affidavit has been filed on behalf of the State of Jharkhand to which rejoinder has also been filed by the petitioner. The petitioner has also filed certain additional documents.”

While elaborating on the facts of the case, the Bench then elucidates in para 4 that, “From the pleadings of the parties following facts emerged:

The petitioner claims to be a Scheduled Tribe in the State of Jharkhand. The petitioner was born on 24.12.1984. On 31.03.1998, petitioner was taken away by one Basant Yadav. Petitioner’s father, Rajender Badaik, lodged a complaint. Basant Yadav was apprehended on 02.04.1998. Father of the petitioner and Police of the concerned Police Station got the marriage of the petitioner solemnised with Basant Yadav. After one year of the marriage, one son was born, named Manish Yadav. Petitioner filed a complaint as well as case for maintenance against her husband, Basant Yadav.”

While continuing in the same vein, the Bench then points out in para 5 that, “The petitioner obtained divorce from Basant Yadav and the custody of son was given to Basant Yadav. On 08.06.2002, petitioner went to Dultonganj on asking of Basant Yadav to meet her son on which date she was raped by one Mohd. Ali and three other accused. Case No.162 of 2002 under Section 376/34 read with Section 3(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989was registered in which accused, Mohd. Ali was apprehended and put on trial.”

Furthermore, the Bench then also points out in para 6 that, “The petitioner lodged an FIR against the DY. Inspector General of Police on 02.08.2005 under Section 376,376(2)(a)IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 on which on 03.08.2005 Case No.304 of 2005 was registered. The petitioner also lodged an FIR against an Inspector General of Police on which Sessions Trial No.257/2006 was registered. Certain other criminal cases got registered by the petitioner against different persons, some of which were filed under Section 376 IPC. In the Sessions Trial 11 of 2006, the accused Mohd Ali was convicted on 15.02.2014 with 10 years RI.”

Now as regarding the FIR, the Bench then states in para 7 that, “In the FIR lodged against Dy. Inspector General of Police final report was submitted which was accepted by the Court on 06.08.2007 insofar as FIR lodged against Inspector General of Police, Sessions Judge acquitted the Inspector General of Police by judgment and order dated 23.12.2017 against which criminal appeal has been filed in the High Court of Jharkhand. A criminal case was also lodged against the petitioner.”

While elaborating on the petitioner’s case in the writ petition, the Bench then enunciates in para 8 that, “The petitioner’s case in the writ petition is that she being the rape victim, whose identity was disclosed by the media and after knowing that the petitioner is a rape victim, no one is ready to give her accommodation even on rent. The petitioner in the writ petition invoked jurisdiction of this Court in the matter of rehabilitation of the petitioner. The petitioner also prays for direction to the respondent to protect the petitioner and her children’s life. The petitioner after divorce from her first husband got married to one Rajesh Kujur with whom a son was also born. The petitioner has also lodged criminal case being No.56/2004 against her husband Rajesh Kujur which resulted in acquittal.”

Needless to say, it is then stated in para 9 that, “The petitioner has also filed a copy of the legal notice dated 09.08.2019 which was sent by the landlord of the petitioner asking the petitioner to vacate the premises on the ground of non-payment of rent. The petitioner sent a letter dated 05.12.2019 stating that the landlord had sealed the house on 04.12.2019.”

While elaborating on counter affidavit by the State, the Bench then lays down in para 10 that, “In the counter-affidavit by the State, the State has given a tabular chart containing status of 7 criminal cases which were initiated by the petitioner. In paragraph 7 one of the cases mentioned in the chart is the case filed against Mohd. Ali, Mohd. Ali was convicted on 15.02.2014 under Section 376(2)(g) IPC and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In other criminal cases either the accused were acquitted or trial is pending in some cases. In two FIRs lodged by the petitioner, in the year 2018 under Section 354 A(ii) as well as under Section 376, 448 and 506 IPC respectively the investigation is said to be going on.”

Interestingly enough, the Bench then quite significantly concedes in para 16 that, “There can be no denial that the petitioner is a rape victim. Even if we do not take into consideration other criminal cases filed by the petitioner under Section 376 IPC, in Case No.162/2002 where allegation of rape was made on 08.06.2002 the accused, Mohd. Ali has been convicted under Section 376(2)(g) IPC for 10 years RI. The petitioner being a rape victim deserves treatment as rape victim by all the authorities.”

What’s more, the Bench then most significantly acknowledges in para 17 that, “A rape victim suffers not only a mental trauma but also discrimination from the society. We may refer to the judgment of this Court in Nipun Saxena and another vs. Union of India and others, (2019) 2 SCC 703, wherein following observations were made by this Court:

“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. ………””

Of course, it is then brought out in para 18 that, “The petitioner herself has brought on record few orders passed in Writ Petition (Cr.)No.229 of 2014 (Padma @ Shushma Badaik vs. The State of Jharkhand and others)filed by the petitioner before the High Court of Jharkhand where in the order dated 12/11.09.2015 statement on behalf of the Counsel for the State was recorded by the High Court that State is ready to provide free education to the children of the writ petitioner. Following is the statement recorded by the High court on 12/11.09.2015:

“Counsel for the State has submitted that State is ready to provide free education to the children of the writ petitioner. If she will give her consent, her children shall be admitted in the Govt. Boarding School at Gumla and the expenses shall be borne by the Government.””

Quite significantly, the Bench then makes it clear in para 20 that, “On an inquiry by the Court as to which authority is to ensure that the minor children of the petitioner are provided free education, learned counsel submitted that it is Deputy Commissioner, Ranchi who can take the appropriate measures to ensure that the minor children of the petitioner are provided free education. Learned counsel for the State has submitted that education upto the age of 14 years in the State of Jharkhand is free which is provided by the State. We, thus, are of the view that Deputy Commissioner shall take appropriate steps to ensure that minor children of the petitioner are provided free education in any Government Institution at Ranchi.”

No less significant is what is then stated in para 21 that, “The petitioner has also raised grievance regarding her identity which has been disclosed by the media. The petitioner has annexed certain materials along with writ petition and the additional documents. Section 228-A of the Indian Penal Code which has been inserted in the Indian Penal Code by Amendment Act 43 of 1983 with effect from 25.12.1983 makes disclosure of the identity of the victim is an offence. Section 228-A is as follows:

“Section 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 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description 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—

(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:

Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation.

Explanation.—For the purposes of this subsection, “recognised welfare institution or organisation” means a social welfare institution or organisation recognised in this behalf by the Central or State Government.

(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in subsection (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation.—The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.””

It is worth noting that it is then specified in para 22 that, “This Court in Nipun Saxena and another (supra) has occasion to consider Section 228-A wherein this Court in para 50.1 has issued following directions:

“50.1. 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.”” It cannot be just glossed over and has to be taken most seriously!

Simply put, the Bench then further elaborates in para 24 stating that, “With regard to the payment of compensation to the petitioner as a rape victim, along with additional documents the petitioner has brought on record materials to indicate that the decision was taken by the District Legal Services Authority, Ranchi to pay compensation of Rs.1,00,000/- by letter dated 06.03.2017. The letter of the Secretary, District Legal Services Authority, Ranchi has been brought on record by the petitioner herself. The grant of compensation has been considered under the Jharkhand Victim Compensation Scheme, 2012 as amended in 2016.”

As it turned out, the Bench then more significantly makes it clear in para 26 that, “The next grievance which has been highlighted by the petitioner is the petitioner’s inability to get any rented accommodation in Ranchi due to she being a rape victim. In the counter-affidavit filed by the State, it is clear that the petitioner has lived at several/different places but due to the dispute with the landlord she has to leave the premises. There are various Central as well as State Schemes for providing residential accommodation to persons living below poverty line and other deserving cases, the Deputy Commissioner, Ranchi may consider the case of the petitioner for allotment of any housing accommodation under Prime Minister Awas Yojna or any other Scheme of the Centre or the State.”

Finally, the Bench then concludes by holding in para 27 that, “In view of the foregoing discussion, we dispose of this writ petition with the following directions:

(1) The Deputy Commissioner, Ranchi is directed to take measure to ensure that minor children of the petitioner are provided free education in any of the Government Institutions in District Ranchi where the petitioner is residing till they attain the age of 14 years.

(2) The Deputy Commissioner, Ranchi may also consider the case of the petitioner for providing house under Prime Minister Awas Yojna or any other Central or State Scheme in which petitioner could be provided accommodation.

(3) The Senior Superintendent of Police, Ranchi and other competent authority shall review the Police security provided to the petitioner from time to time and take such measures as deem fit and proper.

(4) The District Legal Services Authority, Ranchi on representation made by the petitioner shall render legal services to the petitioner as may be deemed fit to safeguard the interest of the petitioner.”

On the whole, the Bench very rightly made it clear that the petitioner deserves treatment as rape victim by all the authorities. It was also conceded by the Bench that this was also more so due to the irrefutable fact that she suffered not just mental trauma but also endless discrimination that she suffered from society. The directives that the Bench issued as discussed above thus stands fully justified!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

Future Guidelines For Maintaining Rape Victim Anonymity

In a fresh and significant development, the Kerala High Court has just recently on September 9, 2020 in a latest, landmark and extremely laudable judgment titled X vs State of Kerala in Case No. : Crl. MC No. 3463 of 2020 issued some future guidelines for maintaining rape victim’s anonymity in the matters instituted before it. Justice PB Suresh Kumar who authored this recent, remarkable and righteous judgment while considering a petition arising out of a bail order passed by POCSO Court had observed that in several matters instituted before the High Court the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings. This most condemnable and dangerous tendency has to be reined in and this is exactly what this brilliant, bold and balanced judgment seeks to do!

To start with, the ball is set rolling first and foremost in the introductory part as mentioned in para 1 which states that, “This is a proceedings challenging Annexure-4 order passed by the Special Court for Trial of Offences under the Protection of Children from Sexual Offences Act, Thalassery, in terms of which the sole accused in Crime No. 94 of 2020 of Panoor Police Station renumbered as Crime No. 33 of 2020 of CBCID, Kasaragode was enlarged on bail.”

While dwelling on the facts of the case, it is then enjoined upon in para 2 that, “The petitioner is the mother of the victim in the case. The victim is aged about 10 years. The second respondent who is the accused in the case is a teacher in the school where the victim is pursuing her studies. The accusation in the case is that the accused committed sexual assault on the victim girl on several occasions in between 15.01.2020 and 02.02.2020 at the bathroom of the school. The case was, therefore, registered for offences punishable under Sections 376(2)(f), 376AB and 354B of the Indian Penal Code (the IPC) and Sections 5(f), 5(l) and 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).”

Moving on, it is then illustrated in para 3 that, “The accused, on his arrest, moved the Special Court for bail on a few occasions and all the applications preferred by him in this regard have been dismissed. The accused, thereupon, moved this court for bail, and this court also declined bail to the accused in terms of Annexure – 3 order. Later, since the final report in the case has not been filed despite the accused being in custody for 90 days, the accused filed Crl.M.C.No.890 of 2020 before the Special Court for bail under Section 167(2) of the Code of Criminal Procedure (the Code). When the said application was pending, the final report in the case has been filed alleging commission of offences punishable under Sections 323 and 324 of the IPC and Sections 75 and 82 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Annexure – 6 is the final report. It is, however, stated in Annexure – 6 final report that the investigation in the case as regards the remaining offences is yet to be completed, and as and when the investigation is completed, supplemental final report would be filed in the matter. When the final report was filed, the accused filed Crl.M.C.No.1559 of 2020 in the pending proceedings, praying for orders to treat the proceedings as one instituted under Section 439 of the Code. In the meanwhile, the investigating officer in the case filed an application seeking permission of the court for conducting further investigation in the matter under Section 173(8) of the Code and the Special Court allowed the said application. The Special Court took the view that insofar as the investigation in the case has not been completed despite the accused being in custody for 90 days, the accused is entitled to bail, and accordingly he was enlarged on bail in terms of Annexure – 4 order. As noted, the petitioner is aggrieved by Annexure – 4 order.”

But the petitioner’s arguments failed to impress the Kerala High Court. The accused was found to be entitled to bail under Section 167(2) of the Code. The Criminal M.C. was found to be without merits and the same was accordingly dismissed!

Most significantly and most remarkably, the Kerala High Court in its final order without mincing any words goes on to observe that, “It is observed that in several matters instituted before this court where victim anonymity is to be maintained, the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings. It is also observed that though documents revealing the identity of the victim are produced in sealed covers in the light of the decision of the Apex Court in Nipun Saxena and another v. Union of India and others, (2019) 2 SCC 703, there is no system in place to maintain victim anonymity, once the sealed covers are opened by the court. In the case on hand, it is observed that the opened cover containing the documents were sent back to the section and brought back from the section to the court on the subsequent hearing dates. It is also observed that there is no system in place for disposal of the documents produced in sealed covers, after the final disposal of the case. Similarly, it is observed that the registry is insisting copies of the documents revealing the identity of the victims to be given to the opposite parties in the matter. There is no system in place to maintain victim anonymity in such situations. Needless to say, the procedure in place to maintain victim anonymity is against the spirit of Section 228A of the Indian Penal Code, Sections 24(5), 33(7) and 37 of the Protection of Children from Sexual Offences Act, 2012, and the decision of the Apex Court in Nipun Saxena. In the circumstances, the following directions are issued for future guidelines for maintaining victim anonymity in the matters instituted before this court:

1. The criteria for deciding the identity of the victim shall include the identity of the family of the victim, the school/college of the victim, the place of work of the victim, the relatives of the victim, the neighbourhood of the victim and all other information from which the identity of the victim would be revealed.

2. In all proceedings instituted by or on behalf of the victim and against them, documents in which the identity of the victim is disclosed, either required in terms of the rules of the court or produced by the parties concerned to substantiate their case, shall be insisted to be filed in a sealed cover.

3. The registry shall designate an officer for the proper custody of documents produced in, sealed covers in cases where victim anonymity is to be maintained and shall provide to that officer necessary infrastructure for keeping custody of the documents. Such officer shall be bound by the highest standards of confidentiality.

4. After the matter is numbered, registry shall forward the documents received in sealed covers in a self-sealing bag/envelope of appropriate size preferably one having a provision for tamper proof seal as well, or in other similar tamper proof bag/envelope, after affixing on it a label indicating the particulars of the case under the signature of the Filing Scrutiny Officer concerned to the designated officer for custody and that officer shall ensure that the documents are made available to the court as and when the matters are listed for hearing.

5. If the self-sealing bag/envelope in which the documents are kept is opened by the court for perusal of the documents, after the purposes of the court, the same shall be kept in a fresh self-sealing bag/envelope and returned to the designated officer, after affixing on the same a new label indicating the particulars of the case under the signature of the Court Officer concerned. If the self-sealing bag/envelope is opened subsequently by the court, the same procedure directed herein-above shall be repeated.

6. The parties producing documents disclosing the identity of the victims need not have to keep or give copies of the same to the opposite parties and they need only refer to such documents in their pleadings.

7. If the lawyers appearing against the victims require/need to peruse the documents in the sealed covers, they shall peruse the same with the permission of the court and if they are permitted by the court to peruse the documents, the documents shall be preserved in the same manner indicated in the preceding directions.

8. These directions shall be in force until replaced by the Honourable the Chief Justice by appropriate practice instructions.

To sum up, the key point of this well-articulated, well-reasoned and well-drafted judgment are the various guidelines that have been just enumerated above that are imperative for maintaining the rape victim anonymity in cases filed before it. All these guidelines must be followed sincerely and strictly by all the concerned courts in letter and spirit. It brooks just no argument and no delay anymore now!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh

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