Whether victim of sexual offences can file appeal in pseudonymous name or coded identity?

 Before parting with this aspect, we would like to deal with a situation not envisaged by the law makers. As we have held above, Section 228A Indian Penal Code imposes a clear cut bar on the name or identity of the victim being disclosed. What happens if the Accused is acquitted and the victim of the offence wants to file an appeal Under Section 372 Code of Criminal Procedure? Is she bound to disclose her name in the memo of appeal? We are clearly of the view that such a victim can move an application to the Court praying that she may be permitted to file a petition under a pseudonymous name e.g. 'X' or 'Y' or any other such coded identity that she may choose. 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 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.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 565 of 2012, W.P. (Crl.) Nos. 1, 22, 148 of 2013, 

Decided On: 11.12.2018

Nipun Saxena   Vs.  Union of India (UOI) and Ors.

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Guidelines of Supreme Court on non disclosure identity of victim of Sexual offence( 9 Directions)

In view of the aforesaid discussion, we issue the following directions:

1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.

2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of the kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.

3. FIRs relating to offences Under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of Indian Penal Code and offences under POCSO shall not be put in the public domain.

4. In case a victim files an appeal Under Section 372 Code of Criminal Procedure, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.

5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.

6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.

7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind Under Section 228A(2)(c) of Indian Penal Code should be made only to the Sessions Judge concerned until the Government acts Under Section 228A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.

8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.

9. All the States/Union Territories are requested to set up at least one 'one stop centre' in every district within one year from today.

44. A copy of this judgment be sent to the Registrar General of all the High Courts so that the same can be placed before the Chairpersons of the Juvenile Justice Committee of all the High Courts for issuance of appropriate orders and directions and also to ensure that sincere efforts are made to set up one stop centres in every district.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 565 of 2012, W.P. (Crl.) Nos. 1, 22, 148 of 2013, 

Decided On: 11.12.2018

Nipun Saxena   Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Madan B. Lokur and Deepak Gupta, JJ.

Citation: (2019) 2 SCC 703

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Whether publication of identity of victim without malafide intention amounts to offence under POCSO Act?

  The subject matter of this writ petition is revolving

round Ext.P15 order passed by the Commission for Protection

of Child Rights.      The question to be decided is whether it

suffers from any manner of illegality or arbitrariness enabling

this Court to interfere with the same.            The paramount

contention advanced by learned counsel for the petitioner is

that the petitioner has made the post in the face book which

contained the name of the child with bonafide and good

intentions. The intention of the petitioner was to book the real

culprit, who is a teacher in the school in question. It is also

stated that the name of the child is contained in Exts.P7 and

P8 and P9, which were received by the petitioner under the RTI

Act, and therefore mere posting of the same will not amount to

the offence under Sec.23 of the POCSO Act.             Therefore,

essence of the issue is dependent on Sec.23 of POCSO Act,

which reads as follows:

              "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.



           (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 of which shall not be less than six months but

     which may extend to one year or with fine or with

     both".

     10. On an evaluation of Sec.23, it is unequivocally clear,

a prohibition is made under sub-section (1) thereto, by which,

no person shall make any report or 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.   Further, as per sub-section (2), no reports in any

media shall disclose the identity of a child including his name,



address,   photograph,     family   details,  school    etc.  etc.

Therefore, the intention under Sec.23 is very clear that the

victim child shall not be exposed to any sort of publication so

as to affect her future and damn her career. In my considered

opinion, in order to constitute an offence under sub-section (4)

of Sec.23, no mens rea, culpability, and malafide or illegal

intention is required. Mere publication of the details of the

victim child will attract the offence under sub-section (4).

Therefore, the thrust of the contention advanced by the

petitioner that the petitioner did not have any malafide

intention to expose the child, cannot be sustained under law.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                             PRESENT:

                        MR. JUSTICE SHAJI P.CHALY

                         11TH DAY OF NOVEMBER 2016

                           WP(C).No. 31378 of 2016 (V)
                             

                     SUDHEESH KUMAR.S.R.,
               

V

            STATE OF KERALA,
                     Citation: 2017 CRLJ 443 kerala

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CIC directs Delhi Women Commission to disclose rape records

New Delhi: Amid outrage over the interview of a December 16 gang-rape convict, CIC on Wednesday directed the Delhi Commission of Women to make public records of rapes committed in the national capital with stern conditions to ensure that identities of victims are not disclosed.

"The Commission observes that the records relating to rape victims cannot be totally blocked from sharing for research purposes on the ground of personal information under Section 8(1)(j) of the RTI Act.

"When it is possible to separate information that can be given from that cannot be given, the PIO has to invoke doctrine of severability to facilitate the information," Information Commissioner Sridhar Acharyulu said.

The case relates to Baladevan Rangaraju who claimed that he wanted information on rape victims for research purpose and personally requested the Secretary of the Department, who after knowing the purpose, refused to furnish the records.

Rangaraju said information sought by him had to be maintained by the Department according to Delhi Commission for Women Act, 1994.

The Commission expressed concern over the issue of the protection of privacy of the rape victims and contended that it was not possible to separate the names of the victims from various documents including medico-legal case reports.

"Facilitate inspection of the records to the authorised female representative of the appellant with an assurance that they shall not bring any electronic device like video records, mobile, camera etc, block out the names and personal details of the victim and accused by whitener on the photostat copies," Sridhar said setting stern guidelines for disclosure of sensitive information.

He said each paper shall be verified by the officials of Delhi Women Commission to ensure that nowhere victims' names and private details are revealed before certifying.

"The appellant is directed to enter a non-disclosure agreement with an undertaking that he/his representative will not reveal information about the personal details of the victims and the accused and that they shall be responsible for any such revelation through the documents shared," he said.

Acharyulu warned that any such disclosure would not only result in the breach of undertaking but also an offence under the Indian Penal Code.

"It shall be responsibility of the respondent authority to secure records, and the appellant shall share the copy of the research report with the Women's Commission and this Commission," the Commissioner said in his order.

Read full judgment here

CENTRAL INFORMATION COMMISSION

Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)

Information Commissioner

CIC/SA/A/2014/001250

Mr Baladevan Rangaraju v. PIO, Delhi Commission for Women, GNCTD

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