TaxTMI 
TaxTMI 
TaxTMI 
2018 (12) TMI 2023
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....dent : Ms. Pinky Anand, ASG, Mr. A.K. Panda, Sr. Adv., Ms. Bhakti Pasrija Sethi, Adv., Mr. M.P. Gupta, Adv., Ms. Saudamini Sharma, Adv., Mr. B.V. Balaram Das, Adv., Ms. Sunita Sharma, Adv., Ms. Rashmi Malhotra, Adv., Mr. Shailender Saini, Adv., Mr. R.K. Rathore, Adv., Ms. Kirti Dua, Adv., Ms. Shipra Roy, Adv., Mr. Chakitan Vikram Shekhar Papta, Adv., Mr. Raj Bahadur Yadav, Adv., Mrs. Anil Katiyar, Adv., Mr. G.S. Makker, Adv., Ms. Snidha Mehra, Adv., Ms. Kirti Dua, Adv., Mr. S. Wasim A. Qadri, Adv., Mr. Jubair Ahmad Khan, Adv., Mr. Tamim Qadri, Adv., Mr. Zaid Ali Subzposh, Adv., Mr. Saeed Qadri, Adv., Ms. Anitha Shenoy, Adv., Ms. Diksha Rai, Adv., Mr. Palak Mahajan, Adv., Mr. Guntur Prabhakar, Adv., Ms. Prerna Singh, Adv., Mr. Anil Shrivastav, Adv., Mr. Rituraj Biswas, Adv., Mr. Satyendra Kumar Srivastav, Adv., Ms. Abha R. Sharma, Adv., Mr. D.S. Parmar, Adv., Ms. Sujeeta Srivastava, Adv., Mr. Mahender Singh, Adv., Mr. A.P. Mayee, Adv., Mr. Chirag Jain, Adv., Mr. A. Selvin Raja, Adv., Mr. A.N.S. Nadkarni, ASG, Ms. Ruchira Gupta, Adv., Mr. Salvadore Rebello, Adv., Ms. Hemantika Wahi, AOR, Ms. Jesal Wahi, Adv., Ms. Vishakha, Adv., Ms. Parul Luthra, Adv., Mr. Ajay Bansal, AAG, Mr. Gaura....
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....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 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 lik....
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...., 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 sub-section, "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." 7. We may also refer to Section 327 of the Code of Cri....
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....fence and shall be punishable for a term which may extend to two years. 10. What is however, permitted under sub-section (2) of Section 228A 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 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 als....
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....in 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 behalf but the police should definitely ensure that the correspondence or memos exchanged or issued where....
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....ubjected 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 protect t....
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.... may be other situations where the next of kin may be justified in disclosing the identify of the victim. If any such need should arise, then we direct that an application to authorise disclosure of identity should be made only to the Sessions Judge/magistrate concerned and the said Sessions Judge/magistrate shall decide the application on the basis of the law laid down by us. 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 sub-section (3) of Section 228A IPC is concerned, we would like to make it clear that the IPC clearly lays down that nobody can prin....
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....ss. 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 during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively cont....
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.... 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, 376-A, 376-B, 376-C or 376-D 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 228-A 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." 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. Th....
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....e a victim files an appeal we direct that such victim can file such an appeal by showing her name as 'X' or 'Y' along with an application for non-disclosure 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 cause-list 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 non-disclosure 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. 29. A minor who is subjected to sexual abuse needs to be protected even more than a major victim beca....
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....CSO 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. Sub-section (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 sub-s....
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....rt 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. (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 sub-section (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." Sub-section (1) of Section 23 prohibits any person from filing any....
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....may not lead to the disclosure of the identity of the child but any further details with regard to the colony and the area in which the child is living or the school in which the child is studying are enough (even though the house number may not be given) to easily discover the identity of the child. In our considered view, the media is not only bound not to disclose the identity of the child but by law is mandated not to disclose any material which can lead to the disclosure of the identity of the child. Any violation of this will be an offence under Section 23(4). 34. The learned amicus curiae urged that child for purposes of publication should only mean a living child. Her contention appears to be that when the child is dead then the name and identity of child can be disclosed. Her submission is based on the assumption that if the name and identity of the child is disclosed, public sentiment can be generated and a movement can be started to get justice for the child. According to her, it is difficult to garner such support if the name of the deceased child victim is not disclosed. We are not at all in agreement with this submission. The same reasoning which we have given abov....
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....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 2017 CriLJ 3893, the Calcutta High Court has given a detailed judgment setting out the reasons while dealing with the provisions of POCSO and held that neither during investigation nor during trial the name of the victim should be disclosed. 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 Annexure-1 to this judgment. We request all the Chairperso....
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....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 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 ....
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....n one year from today. 44. A copy of this judgment be sent to the Registrar General of all the High Courts so that the same can be placed before the Chairpersons of the Juvenile Justice Committee of all the High Courts for issuance of appropriate orders and directions and also to ensure that sincere efforts are made to set up one stop centres in every district. 45. In view of the above, we dispose of these petitions as far as issues dealt with hereinabove are concerned. ANNEXURE - 1 (Directions issued by the Calcutta High Court in the case of Bijoy v. State of West Bengal, 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/represe....
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....nner whatsoever except the express permission of the Special Court in the interest of justice. Any person including a police officer committing breach of the aforesaid requirement of law shall be prosecuted in terms of section 23(4) of the said Act. 6. Trial of the case shall be held in camera in terms of section 37 of the Act and evidence of the victim shall be promptly recorded without unnecessary delay and following the procedure of screening the victim from the accused person as provided in section 36 of the Act. The evidence of the victim shall be recorded by the Court in a child friendly atmosphere in the presence of the parents, guardian or any other person in whom the child has trust and confidence by giving frequent breaks and the Special Court shall not permit any repetitive, aggressive or harassive questioning of the child particularly as to his/her character assassination which may impair the dignity of the child during such examination. In appropriate cases, the Special Court may call upon the defence to submit its questions relating to the incident during cross-examination in writing to the Court and the latter shall put such questions to the victim in a language w....