Tuesday 14 March 2023

Bombay HC: The court should conceal identity of victim of an offence under Pocso Act while framing of charge,recording of evidence and statement of accused U/S 313 of CRPC

 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 ft 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.{Para 16}

17. 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.

18. 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.

19. 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 Offcer deems ft and proper.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

CRIMINAL PUBLIC INTEREST LITIGATION NO. 1 OF 2016

Sangita w/o Yeshwant Tanpure Vs The State of Maharashtra

CORAM : T.V. Nalawade & M.G. Sewlikar, JJ.

PRONOUNCED ON : 19th January, 2021.

JUDGMENT : ( PER M. G. SEWLIKAR, J.)

1. Rule. Rule made returnable forthwith.

2. By consent, heard both the sides for fnal disposal at

admission stage.

3. This Public Interest Litigation is filed by the petitioner

seeking direction to the Print and Electronic Media that the name or

identity of the rape victim should not be disclosed.

4. 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 fnd 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.

5. 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.

6. 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 fne.

(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

offcer-in-charge of the police station or the police

offcer 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 fne.

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. The Honourable Supreme Court in the case of Nipun

Saxena (supra) has held as under :-

10. What is however, permitted under subsection

(2) of Section 228-A 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 IPC

11. Neither IPC nor CrPC defne the phrase

“identity of any person”. Section 228-A 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 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 identifable so that they do

not face any hostile discrimination or harshness

in the future.

12. A victim of rape will face hostile

discrimination and social ostracisation in society.

Such victim will fnd it diffcult to get a job, will

fnd it diffcult to get married and will also fnd it

diffcult to get integrated in society like a normal

human being. Our criminal jurisprudence does

not provide for an adequate witness protection

programme and, therefore, the need is much

greater to protect the victim and hide her identity.

In this regard, we may make reference to some

ways and means where the identity is disclosed

without naming the victim. In one case, which

made the headlines recently, though the name of

the victim was not given, ti 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 fnd 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 identifed and which should make

her identity known to the public at large.

13. Sub-section (2) of Section 228-A IPC makes

an exception for police offcials who may have to

record the true identity of the victim in the police

station or in the investigation fle. We are not

oblivious to the fact that in the frst 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 offcers

investigating such cases and offcers should also

as far as possible either use a pseudonym to

describe the victim unless it is absolutely

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 offence

against children falling within the purview of

POCSO shall not be put in the 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 profling 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 offcers 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-andfast

rule in this behalf but the police should

defnitely 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, 2015. We direct

that the police offcials 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 b fled in the court

along with the report fled under Section 173

CrPC.

14. As far as clause (b) of sub-section (2) of

Section 228-A IPC is concerned, if an adult victim

has no objection to her name being published or

identity being disclosed, she can obviously

authorise 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 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 sub-section (2) of

Section 228-A IPC, we are of the opinion that

where the victim is a minor, Section 228-A will no

longer apply because of the enactment of POCSO

which deals specifcally with minors. In fact, the

words “or minor” should for all intents and

purposes be deemed to be deleted from clause (c)

of sub-section (2) of Section 228-A 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

recognised welfare institutions or organisations to

declare the name. As per the materials placed

before us till date neither the Central Government

nor any State Government has recognised any

such social welfare institutions or organisations

to whom the next of kin should give the

authorisation.

8. 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 identifed

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,

disclosure of their identity can only be permitted

by the Special Court, if such disclosure is in the

interest of the child.

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.

9. 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.

10. 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. Daily Sarvamat in its edition dated

23.02.2011 has reported the news item as under :-

{Vernaculars omitted}

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.

11. In another news item, the identity of the victim is

disclosed. It is reported in Daily Lokmat. Said news item reads as

under :-

{Vernaculars omitted}

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.

12. 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.

13. 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.

14. Despite clear directions by the Honourable Supreme

Court, restricting/restraining media from disclosure of such

information leading to identifcation 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.

15. 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

identifed 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

identifed.

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.

16. 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 ft 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.

17. 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.

18. 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.

19. 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 Offcer deems ft and proper.

20. 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.

21. 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 quantifed at Rs.15,000/- and it should be paid

through the High Court Legal Services Authority, Sub-Committee at

Aurangabad.

22. 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.

23. Learned counsel Shri Ostwal stated that his fees shall be

credited to the Chief Minister’s Relief Fund (for Covid-19).

( M. G. SEWLIKAR ) ( T.V. NALAWADE )

Judge Judge



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