What is the duty of the parties who wish to cite in court any identifying particulars of the prosecutrix/victim/survivor of sexual offences?

 34.2.9. If the parties wish to cite in court any identifying particulars of the prosecutrix/victim/survivor, including photographs or social media communications etc., such party may bring the same to court in 'sealed cover'; or file the same in 'sealed cover' or in a 'pass-code locked' electronic folder and share the pass-code only with the concerned Court Master.

 IN THE HIGH COURT OF DELHI

Bail Appln. 3635/2022

Decided On: 19.04.2023

Saleem Vs. The State of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation: 2023:DHC:2622,MANU/DE/2515/2023.

Read full Judgment here: Click here.

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Delhi high court guidelines to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor of sexual offences

 34. Furthermore, as a sequitur to the above, this court issues the following directions:

34.1. It is directed that the Registry must carefully scrutinise all filings relating to sexual offences, to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor is strictly maintained;

34.2. To be more specific, in order to maintain confidentiality as aforesaid, the following must be done :

34.2.1. The name, parentage, address, social media credentials and photographs of the prosecutrix/victim/survivor must not be disclosed in the filings made in court, including in the memo of parties;

34.2.2. Though, if the foregoing direction is scrupulously followed, the identifying particulars would not appear in the cause-list, by way of abundant caution, the Registry must ensure that such particulars do not get reflected in the cause-list of the court in any manner;

34.2.3. The name, parentage and address of family members of the prosecutrix/victim/survivor - through whom the prosecutrix/victim/survivor could be identified - must not be disclosed in the filings, including in the memo of parties, even if they are accused in the case, since this may indirectly lead to the identification of the prosecutrix/victim/survivor;

34.2.4. Since redaction of the identifying particulars of the prosecutrix/victim/survivor from the FIR, chargesheet, proceedings before the trial court and other similar records, is the duty and obligation of the authorities/court that prepare such documents; and insofar as the proceedings before this court are concerned, making complete redaction in each of those documents may not be feasible, it is also directed that the files/paper-books/e-portfolio of matters relating to sexual offences filed in this court must not be provided to any person other than the parties to the litigation, to the prosecutrix/victim/survivor and their respective counsel, after due verification of the identity credentials of such persons;

34.2.5. At the stage of scrutiny of the filings, in the event the Registry finds that the identity credentials of a prosecutrix/victim/survivor are disclosed in the memo of parties or anywhere else in the filings, such filings must be returned to counsel who have filed the same, to undertake requisite redactions, before the filings are accepted;

34.2.6. To obviate the dissemination of identifying particulars to any other person or agency even within the High Court, it is further directed that all service to be effected upon the prosecutrix/victim/survivor shall only be through the Investigating Officer in accordance with Practice Directions dated 24.09.2019 and not through the process serving agency, though a copy of the petition or application must be served upon the prosecutrix/victim/survivor;

34.2.7. In effecting service as aforesaid, the Investigating Officer must remain in 'plain clothes' so as to avoid any unwarranted attention;

34.2.8. Furthermore, the Investigating Officer must also inform the prosecutrix/victim/survivor that they have the right to free legal-aid/representation in accordance with the mandate of the Supreme Court in Delhi Domestic Working Women's Forum vs. Union of India & Ors; MANU/SC/0519/1995 : (1995) 1 SCC 14 cf. para 15

34.2.9. If the parties wish to cite in court any identifying particulars of the prosecutrix/victim/survivor, including photographs or social media communications etc., such party may bring the same to court in 'sealed cover'; or file the same in 'sealed cover' or in a 'pass-code locked' electronic folder and share the pass-code only with the concerned Court Master.

34.3. The foregoing directions are not intended to be exhaustive; and at the stage of scrutiny, the Registry is expected to apply its mind to any peculiarities of a given case, with the aim and intent of scrupulously applying the directions of the Supreme Court in Nipun Saxena (supra).

 IN THE HIGH COURT OF DELHI

Bail Appln. 3635/2022

Decided On: 19.04.2023

Saleem Vs. The State of NCT of Delhi and Ors.

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation: 2023:DHC:2622,MANU/DE/2515/2023.

Read full Judgment here: Click here.

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Bombay HC Directs Police To file Photos of victim in sealed cover alongwith chargesheet to avoid disclosure of identity of Victim of Sexual assault

We would like to specifically mention here that Section 228-A was inserted in Indian Penal Code with effect from 25.12.1983, which prohibits disclosure of identity of the victim of certain offences. By S. 4 of Act 13 of 2013, words "offence under Sections 376, 376A, 376B, 376C or section 376D" were substituted/inserted with effect from 03.02.2013. Thereafter, by Act 22 of 2018 further amendment in respect of other Sections has been made with effect from 21.04.2018. Thus, the identity of the victim cannot be disclosed by any of the authorities in the charge-sheet. Nowadays, we are finding that photographs are taken i.e. either the old photographs are collected or even victim showing the spot of occurrence are taken and those photographs are produced in the charge-sheet. We do not say that such photographs should not be collected or should not be taken, but we expect that those photographs should not be openly added as part of charge-sheet. A charge-sheet travels from the office of the investigating agency (may be handled by many persons), then it comes to either the Court of Judicial Magistrate First Class or directly presented before the learned Special Judge where also it is handled by many persons. Under such circumstance, the identity of the victim is disclosed. The investigating agency has to be sensitive in the matter. If they want to produce such documents, then it should be put in a sealed envelope including in the copies of the charge-sheet also, so that the identity of the victim is not disclosed in any manner. In the catena of judgments of the Hon'ble Apex Court as well as this Court, it has been stressed that the identity of the victim in such cases, i.e. under Section 376 and other Sections of Indian Penal Code, POCSO Act, should not be disclosed. We are constrained to make these observations, as we are coming across such incidences time and again. We may also observe that when it was found that the accused facing charge under these Sections want to rely on certain photographs in which victim is seen then those photographs are openly placed/annexed in the petition. Coordinate Bench at Principal Seat has given directions that they should be filed under sealed envelope. We take those directions further and direct all the concerned agencies, who are dealing with the investigation of such crime that henceforth the photographs of such victims should be filed in sealed envelope before the concerned Courts. We may also say that failure to follow the directions may invite the action for the offence under Section 228-A of the Indian Penal Code. These directions are also to the concerned Courts where the charge-sheet is accepted. They should also see that such photographs are produced in sealed envelope before them and the identity of the victim is not disclosed in any manner.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Appeal No. 869 of 2022

Decided On: 08.02.2023

Sajjan  Vs.  The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi and Abhay S. Waghwase, JJ.

Citation: MANU/MH/0509/2023.

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Supreme Court: Court should not deny bail to accused considering documents produced by prosecution in sealed cover

The question as to whether the Court could look

into the documents while considering an application for

bail had arisen for consideration in the very case between

the parties herein in Criminal Appeal No.130/2019

wherein through the judgment dated 05.09.2019 while

considering the matter relating to the order dated

20.08.2019 whereby the High Court had rejected the bail,

this Court had held that it would be open for the Court to

receive the materials/documents collected during the

investigation and peruse the same to satisfy its conscience

that the investigation is proceeding in the right lines and

for the purpose of consideration of grant of

bail/anticipatory bail etc. At the same time, this Court,

had disapproved the manner in which the learned Judge

of the High Court in the said case had verbatim quoted a

note produced by the respondent. If that be the position,

in the instant case, the learned Judge while adverting to

the materials, ought not have recorded a finding based on

the materials produced before him. While the learned

Judge was empowered to look at the materials produced in

a sealed cover to satisfy his judicial conscience, the

learned Judge ought not to have recorded finding based on

the materials produced in a sealed cover. Further while

deciding the same case of the appellant in Crl. Appeal

No.1340 of 2019, after holding so, this Court had

consciously refrained from opening the sealed cover and

perusing the documents lest some observations are made

thereon after perusal of the same, which would prejudice

the accused pre-trial. In that circumstance though it is

held that it would be open for the Court to peruse the

documents, it would be against the concept of fair trial if

in every case the prosecution presents documents in

sealed cover and the findings on the same are recorded as

if the offence is committed and the same is treated as

having a bearing for denial or grant of bail.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(CRIMINAL APPEAL NO.1831/2019)

P. Chidambaram Vs  Directorate of Enforcement 

A.S. Bopanna,J.

Dated:December 04, 2019

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