As per case facts, the court considered how to protect the identity of adult rape victims and child sexual abuse victims to prevent social ostracisation and harassment, noting that victims ...
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL/CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 565 OF 2012
NIPUN SAXENA & ANR. …PETITIONER(S)
Versus
UNION OF INDIA & ORS. …RESPONDENT(S)
WITH
W.P. (Crl.) No. 1 of 2013
W.P. (C) No. 22 of 2013
W.P. (C) No. 148 of 2013
SLP (CRL.).......CRLMP. No.16041/2014
W.P. (C) No. 568 of 2012
J U D G M E N T
Deepak Gupta, J.
1.How and in what manner the identity of adult victims of
rape and children who are victims of sexual abuse should be
2
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..
Ist Part
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
3
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 crossexamination 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 crossexamine 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
4
made to sensitise the courts, but experience has shown that
despite the earliest admonitions, the first as far back as in 1996
1
,
the Courts even today reveal the identity of the victim.
6.Section 228A was introduced in the IPC 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
description for a term which may extend to two years
and shall also be liable to fine.
(2) Nothing in subsection (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
incharge 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:
1 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384
5
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.”
7.We may also refer to Section 327 of the Code of Criminal
Procedure, 1973 (for short ‘CrPC’) which provides that Courts
should be open and normally public should have access to the
Courts. Subsection (2) of Section 327 was inserted by the same
Amendment Act No.43 of 1983. Section 327, as amended, reads
as follows:
“Section 327. Court to be open.
(1) The place in which any criminal Court is held for
the purpose of inquiring into or trying any offence
shall be deemed to be an open Court to which the
public generally may have access, so far as the same
can conveniently contain them:
6
Provided that the presiding Judge or Magistrate may, if
he thinks fit, order at any stage of any inquiry into, or
trial of, any particular case, that the public generally,
or any particular person, shall not have access to, or
be or remain in, the room or building used by the
Court.
(2) Notwithstanding anything contained in subsection
(1), the inquiry into and trial of rape or an offence
under section 376, section 376A, section 376AB,
section 376B, section 376C, section 376D, section
376DA, section 376DB or section 376E of the Indian
Penal Code (45 of 1860) shall be conducted in camera:
Provided that the presiding Judge may, if he thinks fit,
or on an application made by either of the parties,
allow any particular person to have access to, or be or
remain in, the room or building used by the Court:
Provided further that in camera trial shall be
conducted as far as practicable by a woman Judge or
Magistrate.
(3) Where any proceedings are held under subsection
(2), it shall not be lawful for any person to print or
publish any matter in relation to any such
proceedings, except with the previous permission of
the Court:
Provided that the ban on printing or publication of
trial proceedings in relation to an offence of rape may
be lifted, subject to maintaining confidentiality of
name and address of the parties.”
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.
7
9.Subsection (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 subsection (2) of Section
228A IPC 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 IPC.
11.Neither the IPC nor the CrPC define the phrase ‘identity of
any person’. Section 228A IPC 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
8
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
9
given, it was stated that she had topped the State Board
Examination and the name of the State was given. It would not
require rocket science to find out and establish her identity. In
another instance, footage is shown on the electronic media where
the face of the victim is blurred but the faces of her relatives, her
neighbours, the name of the village etc. is clearly visible. This
also amounts to disclosing the identity of the victim. We,
therefore, hold that no person can print or publish the name of
the victim or disclose any facts which can lead to the victim being
identified and which should make her identity known to the
public at large.
13.Subsection (2) of Section 228A IPC 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
10
necessary to write down her identity. We make it clear that the
copy of an FIR relating to the offence of rape against a women or
offences against children falling within the purview of POCSO
shall not be put in the public domain to prevent the name and
identity of the victim from being disclosed. The Sessions
Judge/Magistrate/Special Court can for reasons to be recorded
in writing and keeping in view the interest of the victim permit
the copy of the FIR to be given to some person(s). Some examples
of matters where her identity will have to be disclosed are when
samples are taken from her body, when medical examination is
conducted, when DNA profiling is done, when the date of birth of
the victim has to be established by getting records from school
etc.. However, in these cases also the police officers should move
with circumspection and disclose as little of the identity of the
victim as possible but enough to link the victim with the
information sought. We make it clear that the authorities to
which the name is disclosed when such samples are sent, 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. There can be no hard and fast rule in this
11
behalf but the police should definitely ensure that the
correspondence or memos exchanged or issued wherein the name
of the victim is disclosed are kept in a sealed cover and are not
disclosed to the public at large. They should not be disclosed to
the media and they shall also not be furnished to any person
under the Right to Information Act, 2005. We direct that the
police officials should keep all the documents in which the name
of the victim is disclosed 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 by a
large number of people. The sealed cover can be filed in the court
along with the report filed under Section 173 CrPC.
14.As far as clause (b) of subsection (2) of Section 228A IPC is
concerned, if an adult victim has no objection to her name being
published or identity being disclosed, she can obviously authorize
any person in writing to disclose her name. This has to be a
voluntary and conscious act of the victim. There are some
victims who are strong enough and willing to face society even
after their names are disclosed. Some of them, in fact, help other
victims of rape and they become a source of inspiration to other
12
rape victims. Nobody can have any objection to the victim
disclosing her name as long as the victim is a major.
15.Coming to clause (c) of subsection (2) of Section 228A IPC,
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 subsection (2) of Section 228A IPC.
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.
17.Before dealing with this technical aspect as to whom the
authorisation is to be given, we feel that a word of caution is
needed with regard to the right of the next of the kin of the
victim. A person of unsound mind is as much a citizen of the
13
country as a sane person. A person of unsound mind who is also
subjected to such a heinous sexual offence suffers a trauma
which is unimaginable. The issue for consideration is – in what
circumstances the next of kin should be permitted to authorize
the naming and identification of the victim? It was urged before
us that in certain matters the name of the victim should be
permitted to be disclosed or published because the name and
face of the victim can then become a rallying point to prevent
other such sexual offences. The victim becomes a symbol of
protest or is treated as an iconic figure. We are not at all
impressed with this argument. Should the person who is dead or
who is of unsound mind be permitted to become a symbol if such
person herself might not want to be a rallying point? We are also
of the considered view that it is not at all necessary to disclose
the identity of the victim to arouse public opinion and sentiment.
This is a serious issue dealing with victims of heinous sexual
offences and needs to be dealt with sensitivity. Furthermore, all
of us are fully aware that without disclosing her true identity
‘Nirbhaya’ became the most effective symbol of protest the
country has ever known. If a campaign has to be started to
14
protect the rights of the victim and mobilise public opinion it can
be done so without disclosing her identity.
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
15
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”.
20.As pointed out above, neither the Central Government nor
any State Government has recognized any such welfare
institution or organization. No guidelines have been laid down in
the IPC as to what will be the nature of such organisation and
what will be the qualifications of the persons who are made the
Chairman or Secretary of such organisation. These matters
cannot be left indeterminate.
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
deadbody 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
16
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. We are exercising power under
Article 142 of the Constitution in this regard because the
Government has not identified any social or welfare
institution/organisation and the law as laid down cannot be
administered. We direct that if the Government wants to actually
act under Section 228A (2) (c) IPC, it must before identifying such
social welfare institution or organisation clearly lay down some
rules or clear cut criteria in this regard. What should be the
nature of the organisation? How should the application be
made? In what manner that application should be dealt with?. A
clear cut procedure must be laid down. Till that is done, our
directions shall prevail.
22.As far as subsection (3) of Section 228A IPC is concerned,
we would like to make it clear that the IPC clearly lays down that
nobody can print or publish any matter in relation to any
17
proceedings falling within the purview of Section 228A and in
terms of Section 327(2) CrPC. 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. The press can report that the case was
fixed before Court and some witnesses were examined. It can
report for what purpose the case was listed but it cannot report
what transpired inside the court or what was the statement of the
victim or the witnesses. The evidence cannot be disclosed. We
are not elaborating and dealing with the issue of publication in
press in greater detail since this issue is engaging our attention
in Nivedita Jha’s case
2
but it is clear that nobody can be
permitted to violate Section 327(3) CrPC, the language of which is
very clear and unambiguous.
23.Subsection (3) of Section 228A IPC makes printing or
publication of any matter in relation to such proceedings before a
2 Nivedita Jha v. State of Bihar, SLP(C) No. 24978 of 2018
18
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 IPC,
the following observations are pertinent:
“21. Of late, crime against women in general and rape
in particular is on the increase. It is an irony that
while we are celebrating woman’s rights in all spheres,
we show little or no concern for her honour. It is a sad
reflection on the attitude of indifference of the society
towards the violation of human dignity of the victims
of sex crimes. We must remember that a rapist not
only violates the victim’s privacy and personal
integrity, but inevitably causes serious psychological
as well as physical harm in the process. Rape is not
merely a physical assault — it is often destructive of
the whole personality of the victim. A murderer
destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female. The
courts, therefore, shoulder a great responsibility while
trying an accused on charges of rape. They must deal
with such cases with utmost sensitivity……
22. There has been lately, lot of criticism of the
treatment of the victims of sexual assault in the court
19
during their crossexamination. 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. The
court, therefore, should not sit as a silent spectator
while the victim of crime is being crossexamined by
the defence. It must effectively control the recording of
evidence in the court. While every latitude should be
given to the accused to test the veracity of the
prosecutrix and the credibility of her version through
crossexamination, the court must also ensure that
crossexamination is not made a means of harassment
or causing humiliation to the victim of crime. A victim
of rape, it must be remembered, has already
undergone a traumatic experience and if she is made
to repeat again and again, in unfamiliar surroundings
what she had been subjected to, she may be too
ashamed and even nervous or confused to speak and
her silence or a confused stray sentence may be
wrongly interpreted as “discrepancies and
contradictions” in her evidence.”
Dealing with Section 327 CrPC this Court held as follows:
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…………..The courts should, as
20
far as possible, avoid disclosing the name of the
prosecutrix in their orders to save further
embarrassment to the victim of sex crime. The
anonymity of the victim of the crime must be
maintained as far as possible throughout. In the
present case, the trial court has repeatedly used the
name of the victim in its order under appeal, when it
could have just referred to her as the prosecutrix. We
need say no more on this aspect and hope that the
trial courts would take recourse to the provisions of
Sections 327(2) and (3) CrPC liberally. Trial of rape
cases in camera should be the rule and an open trial in
such cases an exception.”
25.Bhupinder Sharma v. State of Himachal Pradesh
3
is one
of first cases where specific reference was made to Section 228A
IPC. This Court held as follows:
“2. We do not propose to mention the name of the
victim. Section 228A of the Indian Penal Code, 1860
(in short “IPC”) makes disclosure of the identity of
victims of certain offences punishable. Printing or
publishing the name or any matter which may make
known the identity of any person against whom an
offence under Sections 376, 376A, 376B, 376C or
376D is alleged or found to have been committed can
be punished. True it is, the restriction does not relate
to printing or publication of judgment by the High
Court or the Supreme Court. But keeping in view the
social object of preventing social victimization or
ostracism of the victim of a sexual offence for which
Section 228A has been enacted, it would be
appropriate that in the judgments, be it of a High
Court or a lower court, the name of the victim should
not be indicated. We have chosen to describe her as
“victim” in the judgment.”
3 (2003) 8 SCC 551
21
This Court held that the bar imposed under Section 228A
IPC did not in term apply to the printing or publication of
judgments of the High Courts and the Supreme Court because of
the Explanation to Section 228A. However, keeping in view the
social object of preventing the ostracising of victims, it would be
appropriate that in judgments of all the courts i.e. trial courts,
High Courts and the Supreme Court the name of the victim
should not be indicated. This has been repeated in a large
number of cases and we need not refer to all.
26.The Kerala High Court in the case of Aju Varghese v. State
of Kerala
4
held as follows:
“8. The statutory provision as explained by the
Supreme Court clearly shows that the provision was
specifically intended to ensure that the victim is not
exposed to further agony by the consequent social
victimization or ostracism pursuant to disclosure of
her identity. It is clear that, it is intended to protect
her from psychological and sociological torture or
mental agony, that may follow the unfortunate
incident of sexual violence. Society has a duty to
support the victims of sexual violence and to ensure
that they come back to normalcy and start leading a
normal life. Victims of such violence are not denuded
of their fundamental right to privacy and are liable to
be insulated against unnecessary public comments.
Definitely, it serves an avowed social purpose and has
an element of public interest involved in it. Section is
so clear, unambiguous and the consequence of breach
of it is inescapable and the question whether the
4 Crl. MC No.5247 of 2017 decided on 27.09.2018
22
disclosure was intended, bonafide or without
knowledge of law has not relevance. Hence, the
provision of section 228A IPC prohibiting the
disclosure of the name by an accused is absolute and
cannot be diluted.”
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 IPC 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 CrPC? 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. However, she may not be permitted to give some other
name which may indirectly harm another person. There may be
certain documents in which her name will have to be disclosed;
e.g., the power of attorney and affidavit(s) which may have to be
filed as per the Rules of the Court. The Court should normally
allow such applicant to file the petition/appeal in a
pseudonymous name. Where a victim files an appeal we direct
23
that such victim can file such an appeal by showing her name as
‘X’ or ‘Y’ along with an application for nondisclosure of the name
of the victim. In a sealed envelope to be filed with the appeal she
can enclose the document(s), in which she can reveal her identity
as required by the Rules of the appellate court. The Court can
verify the details but in the material which is placed in the public
domain the name of the victim shall not be disclosed. Such an
application should be heard by the Court in Chambers and the
name should not be reflected even in the causelist till such
matter is decided. Any documents disclosing the name and
identity of the victim should not be in the public domain.
IInd Part
28.In this part of the judgment we shall deal with the issues
which relate to nondisclosure of the name and identity of a
victim falling within the purview of the POCSO. At the outset, we
may note that the reasons which we have given in Ist Part of the
judgment dealing with the adult victims, apply with even greater
force to minor victims.
24
29.A minor who is subjected to sexual abuse needs to be
protected even more than a major victim because a major victim
being an adult may still be able to withstand the social
ostracization and mental harassment meted out by society, but a
minor victim will find it difficult to do so. Most crimes against
minor victims are not even reported as very often, the perpetrator
of the crime is a member of the family of the victim or a close
friend. Efforts are made to hush up the crime. It is now
recognised that a child needs extra protection. India is a
signatory to the United Nations Convention on the Rights of
Child, 1989 and Parliament thought it fit to enact POCSO in the
year 2012, which specifically deals with sexual offences against
all children. The Act is gender neutral and whatever we say in
this Part will apply to all children.
30.Chapter VI of POCSO deals with procedure relating to
recording the statement of a child. Section 24 deals with the
statement recorded by the police. For our purpose subsection
(5) of Section 24 is relevant which reads as follows:
“Section 24 Recording of statement of a child.
xxx xxx xxx
xxx xxx xxx
25
(5) The police officer shall ensure that the identity of
the child is protected from the public media, unless
otherwise directed by the Special Court in the interest
of the child.”
Section 25 POCSO states that statements of the child
recorded under Section 164 CrPC which permits an advocate to
be present will not be applicable in the case of children. Trials
under POCSO are conducted by the Special Court which is
expected to be child friendly and specifically provides that the
Special Court shall not permit aggressive questioning or
character assassination of the child. Subsection (7) of Section
33 which is relevant reads as follows:
“Section 33 Procedure and powers of Special
Court.
xxx xxx xxx
(7) The Special Court shall ensure that the identity of
the child is not disclosed at any time during the course
of investigation or trial:
Provided that for reasons to be recorded in writing, the
Special Court may permit such disclosure, if in its
opinion such disclosure is in the interest of the child.
Explanation.For the purposes of this subsection, the
identity of the child shall include the identity of the
child's family, school, relatives, neighbourhood or any
other information by which the identity of the child
may be revealed.”
26
Section 37 provides that all trials under POCSO are to be
conducted in camera unless otherwise specifically decided for
reasons to be recorded by the Special Court. A bare reading of
Section 24(5) and Section 33(7) makes it amply clear that the
name and identity of the child is not to be disclosed at any time
during the course of investigation or trial and the identity of the
child is protected from the public or media. Furthermore,
Section 37 provides that the trial is to be conducted in camera
which means that the media cannot be present. The entire
purpose of the POCSO is to ensure that the identity of the child is
not disclosed unless the Special Court for reasons to be recorded
in writing permits such disclosure. This disclosure can only be
made if it is in the interest of the child and not otherwise. One
such case where disclosure of the identity of the child may be
necessary can be where a child is found who has been subjected
to a sexual offence and the identity of the child cannot be
established even by the investigating team. In such a case, the
Investigating Officer or the Special Court may allow the
photograph of the child to be published to establish the identity.
27
It is absolutely clear that the disclosure of the identity can be
permitted by the Special Court only when the same is in the
interest of the child and in no other circumstances. We are of the
view that the disclosure of the name of the child to make the
child a symbol of protest cannot normally be treated to be in the
interest of the child.
31.It is contended by the learned amicus curiae that interest of
the child has not been defined. We are of the view that it is
neither feasible nor would it be advisable to clearly lay down
what is the meaning of the phrase “interest of the child”. We
have, however, given some examples hereinabove and we do not
want to tie down the hands of the Special Court, who may have
to deal with such cases. Each case will have to be dealt within
its own factual scenario.
Section 23 of POCSO contains provisions which relate to
procedure for media. It reads as follows:
“Section 23 Procedure for media.
(1) No person shall make any report or present
comments on any child from any form of media or
studio or photographic facilities without having
complete and authentic information, which may have
the effect of lowering his reputation or infringing upon
his privacy.
28
(2) No reports in any media shall disclose, the identity
of a child including his name, address, photograph,
family details, school, neighbourhood or any other
particulars which may lead to disclosure of identity of
the child:
Provided that for reasons to be recorded in writing, the
Special Court, competent to try the case under the Act,
may permit such disclosure, if in its opinion such
disclosure is in the interest of the child.
(3) The publisher or owner of the media or studio or
photographic facilities shall be jointly and severally
liable for the acts and omissions of his employee.
(4) Any person who contravenes the provisions of sub
section (1) or subsection (2) shall be liable to be
punished with imprisonment of either description for a
period which shall not be less than six months but
which may extend to one year or with fine or with
both.”
Subsection (1) of Section 23 prohibits any person from
filing any report or making any comments on any child in any
form, be it written, photographic or graphic without first having
complete and authentic information. No person or media can
make any comments which may have the effect of lowering the
reputation of the child or infringing upon the privacy of the child.
Subsection (2) of Section 23 clearly lays down that no report in
29
any media shall disclose identity of a child including name,
address, photograph, family details, school, neighbourhood or
any other particulars which may lead to the disclosure of the
identity of the child. This clearly shows that the intention of the
legislature was that the identity of the child should not be
disclosed directly or indirectly. The phrase ‘any other particulars’
will have to be given the widest amplitude and cannot be read
only ejusdem generis. The intention of the legislature is that the
privacy and reputation of the child is not harmed. Therefore, any
information which may lead to the disclosure of the identity of
the child cannot be revealed by the media. The media has to be
not only circumspect but a duty has been cast upon the media to
ensure that it does nothing and gives no information which could
directly or indirectly lead to the identity of the child being
disclosed.
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
30
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
31
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.
35.Though in this case we are dealing with cases of victims but
we may make reference to Section 74 of the Juvenile Justice
32
(Care and Protection of Children) Act, 2015, which reads as
follows:
“Section 74. Prohibition on disclosure of identity of
children.
(1) No report in any newspaper, magazine, newssheet
or audiovisual media or other forms of
communication regarding any inquiry or investigation
or judicial procedure, shall disclose the name, address
or school or any other particular, which may lead to
the identification of 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 such matter, under any
other law for the time being in force, nor shall the
picture of any such child be published:
Provided that for reasons to be recorded in writing, the
Board or Committee, as the case may be, holding the
inquiry may permit such disclosure, if in its opinion
such disclosure is in the best interest of the child.
(2) The Police shall not disclose any record of the child
for the purpose of character certificate or otherwise in
cases where the case has been closed or disposed of.
(3) Any person contravening the provisions of sub
section (1) shall be punishable with imprisonment for
a term which may extend to six months or fine which
may extend to two lakh rupees or both.”
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
33
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
5
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
6
, 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.
5 2018 CriLJ 3146
6 2017 CriLJ 3893
34
The Calcutta High Court has also given other directions to
ensure that the provisions of the law are followed in letter and
spirit, and the fundamental rights of a child victim and other
basic human rights are protected. We are in agreement with all
these directions. Though some of the issues dealt with in these
directions do not strictly arise in this case, keeping in view the
fact that we are dealing with the rights of children, we are
annexing the directions issued by the Calcutta High Court as
Annexure1 to this judgment. We request all the Chairpersons
and Members of all the Juvenile Justice Committee of all the
High Courts in the country to go through the judgment of the
Calcutta High Court and the directions issued therein and they
may issue similar directions, keeping in view the particular needs
of each High Court/State.
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.
35
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
crossexamined 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
36
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. Counsellors and
psychiatrists should also be available on call at these centres so
that if necessary the victims are counselled and in some cases it
would be appropriate if the counsellors question the victims in a
manner in which they have been trained to handle the victims of
such offences. These one stop centres should also have adequate
medical facilities to provide immediate medical aid to the victims
and the medical examination of the victims can be conducted at
the centre itself. These one stop centres should also have video
conferencing facility available where the statement of the victims
to be mandatorily recorded under Section 164 CrPC can be
recorded using video conferencing facilities and the victims need
not be produced in the court of the magistrate. There should be
37
court room(s) in these one stop centres which can be used for
trial of such cases. As far as possible these centres should not
be situated within the court complex but should be situated near
the court complex so that the lawyers are also not
inconvenienced. Resultantly, the victims of such offences will
never have to go to a court complex which would result in a
victim friendly trial. One such centre which has already been set
up is “BHAROSA” in Hyderabad. This can be used as a model for
other one stop centres in the country.
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
38
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
IPC and offences under POCSO shall not be put in the
public domain.
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.
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
39
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 IPC should
be made only to the Sessions Judge concerned until
the Government acts under Section 228A(2)(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
40
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.
….……………………..J.
(MADAN B. LOKUR)
.….…………………….J.
(DEEPAK GUPTA)
New Delhi
December 11, 2018
41
ANNEXURE – 1
(Directions issued by the Calcutta High Court in the case
of Bijoy v. State of West Bengal, 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 166B 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.
42
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
43
necessary orders to ensure compliance thereof in
accordance with law, if necessary.
4.OfficerinCharge 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.
44
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 crossexamination 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 nonoffensive 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
45
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
46
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
47
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.
*****
Legal Notes
Add a Note....