1) D.K. Basu v. State of West Bengal (1997)
The Bharatiya Nyaya Sanhita (BNS), India's new criminal code, has introduced significant reforms in addressing heinous crimes that leave victims in devastating conditions. Among these reforms, the legal recognition of "permanent vegetative state" as a consequence equivalent to death marks a watershed moment in Indian jurisprudence. Two key provisions—Section 66 and Section 124—specifically address this condition, reflecting the law's evolving understanding of human suffering and dignity.
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) is a landmark legislation in India, designed to safeguard children from sexual abuse and exploitation. While the Act is primarily focused on protecting children as victims, questions often arise regarding its applicability and whether a child can be prosecuted under its provisions. This article explores these aspects in detail.
In the circumstances, we direct that a Sessions Court, which adjudicates a case concerning the bodily injuries such as sexual assault etc. particularly on minor children and women shall order for victim compensation to be paid having regard to the facts and circumstances of the case and based on the evidence on record, while passing the judgment either convicting or acquitting the Accused. Secondly, the said direction must be implemented by the District Legal Services Authority or State Legal Services Authority, as the case may be, in letter and spirit and in the quickest manner and to ensure that the victim is paid the compensation at the earliest. {Para 16}
17. There can also be a direction for payment of interim compensation which could be made by the Sessions Court depending upon the facts of each case.
19. In the facts and circumstances of the present case, the second Respondent shall also be entitled to be considered for compensation Under Rule 7 of the POCSO Rules, 2012 and now Under Rule 9 of the POCSO Rules, 2020.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 4495 of 2024.
Decided On: 04.11.2024
Saibaj Noormohammad Shaikh Vs. State of Maharashtra and Ors.
Hon'ble Judges/Coram:
B.V. Nagarathna and Pankaj Mithal, JJ.
Citation: MANU/SC/1363/2024.
Print Page34.2.9. 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.
Print Page34.2.3. 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;
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.
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.
In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape.
1) The complainants of sexual assault cases should be provided with legal representation. It is important to have same one who is well-acquainted with the criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in Court but to provide her with guidance was to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.
2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should stage that the victim was so informed.
4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the Court was sought or obtained.
6) In all rape trials anonymity of the victim must be maintained, as far as necessary.
7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatized to continue in employment.
8) Compensation for victims shall be awarded by the Court on conviction of the offender any by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape. {Para 16}
IN THE SUPREME COURT OF INDIA
Writ Petition (Criminal) No. 362 of 1993
Decided On: 19.10.1994
Delhi Domestic Working Women's Forum Vs. Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
M.N. Venkatachaliah, C.J., S. Mohan and S.B. Majmudar, JJ.
Author: S. Mohan, J.
Citation: MANU/SC/0519/1995,( 1995 ) 1 SCC 14.
Print PageThe earlier order passed by the High Court on 24th April, 2024, required respondent No. 2 to cooperate with the Investigating Officer for the purpose of investigation and, subject to the same, the respondent-Police were directed not to take any coercive action against him. Pursuant thereto, the
Investigating Officer issued a notice under Section 41-A of
the Code of Criminal Procedure, 1973, on 17th May, 2024,
requiring respondent No. 2 to undergo a medical examination
for the purpose of investigation in the case. He was directed
to appear at the Police Station on 18th May, 2024 at 10.00 a.m.
{Para 5}
6. Respondent No. 2, thereupon, filed IA No. 2 of 2024 before the
High Court. Perusal thereof reflects that he did not wish to
subject himself to medical examination. He stated therein
that the Investigating Officer was threatening him with arrest
if he did not tender himself for medical examination at the
same hospital where the victim was examined.
7. As respondent No. 2 stood protected from coercive action by
the earlier order of the High Court, this statement on his
part does not inspire confidence. In any event, his clear
statement to the effect that he did not want to be subjected
to medical examination shows that he is not willing to
cooperate with the investigation.
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 7880/2024
EKTA SINGH Vs THE STATE OF KARNATAKA
CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR
HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
Date : 10-06-2024.
Print PageAt the outset, this Court likes to point the considerations for a Court for grant of bail to an accused [Re. : Prasanta Kumar (supra); Amarmani Tripathi (supra) and Deepak Yadav v. State of Uttar Pradesh, (2022) 8 SCC 559]:—
i. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
ii. nature and gravity of the accusation;
iii. severity of the punishment in the event of conviction;
iv. danger of the accused absconding or fleeing, if released on bail;
v. character, behaviour, means, position and standing of the accused in the society;
vi. likelihood of the offence being repeated;
vii. reasonable apprehension of the witnesses being influenced; and
viii. danger, of course, of justice being thwarted by the grant of bail. {Para 13}
14. This Court, is of the opinion, that in addition to abovesaid conditions the following considerations should be kept in mind while considering grant of bail to an accused in matters relating to sexual offences specially POCSO Act:
i. The age of the Victim;
ii. The age difference between the victim and the accused;
iii. The ferociousness of the offence;
iv. The relationship between the victim and the accused and;
v. The vicinity of residence of the accused and the victim and if they are in proximity then if the accused is willing to reside elsewhere, till the pendency of trial.
In the High Court of Delhi at New Delhi
(Before Saurabh Banerjee, J.)
N Vs State and Another.
CRL.M.C. 3399/2023
Decided on August 28, 2023
Citation: 2023 SCC OnLine Del 5387.
Print PageIn crimes against children, it is not only the initiating horror or trauma that is deeply scarring; that is aggravated by the lack of support and handholding in the days that follow. In such crimes, true justice is achieved not merely by nabbing the culprit and bringing him to justice, or the severity of punishment meted out, but the support, care, and security to the victim (or vulnerable witness), as provided by the state and all its authorities in assuring a painless, as less an ordeal an experience as is possible, during the entire process of investigation, and trial. The support and care provided through state institutions and offices is vital during this period. Furthermore, justice can be said to have been approximated only when the victims are brought back to society, made to feel secure, their worth and dignity, restored. Without this, justice is an empty phrase, an illusion. The POCSO Rules 2020, offer an effective framework in this regard, it is now left to the State as the biggest stakeholder in it - to ensure its strict implementation, in letter and spirit.{Para 12}
IN THE SUPREME COURT OF INDIA
Writ Petition (Civil) No. 427 of 2022
Decided On: 18.08.2023
Bachpan Bachao Andolan Vs. Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
S. Ravindra Bhat and Aravind Kumar, JJ.
Author: S. Ravindra Bhat, J.
Citation: 2023/INSC/745, MANU/SC/0899/2023,(2023)9SCC133.
Print PageIt is the duty and responsibility of trial courts to deal with the aggrieved persons before them in an appropriate manner, by:
a. Allowing proceedings to be conducted in camera, where appropriate, either under Section 327 CrPC or when the case otherwise involves the aggrieved person (or other witness) testifying as to their experience of sexual harassment/violence;
b. Allowing the installation of a screen to ensure that the aggrieved woman does not have to see the accused while testifying or in the alternative, directing the accused to leave the room while the aggrieved woman's testimony is being recorded;
c. Ensuring that the counsel for the accused conducts the cross-examination of the aggrieved woman in a respectful fashion and without asking inappropriate questions, especially regarding the sexual history of the aggrieved woman. Cross-examination may also be conducted such that the counsel for the accused submits her questions to the court, who then poses them to the aggrieved woman;
d. Completing cross-examination in one sitting, as far as possible. {Para 35}
In the Supreme Court of India
(Before D.Y. Chandrachud and J.B. Pardiwala, JJ.)
XYZ Vs State of Madhya Pradesh and Others
Criminal Appeal No. 1184 of 2022
Decided on August 5, 2022
Citation: 2022 SCC OnLine SC 1002
Print Page
APARNA BHAT & ORS. Vs STATE OF MADHYA PRADESH
Author: S. RAVINDRA BHAT, J.
Dated:March 18, 2021.
Accordingly, the following directions are issued to all the
Special Courts in Maharashtra:
(i) The Special Courts to ensure that the deposition of the child/
victim is recorded as expeditiously as possible, keeping in mind the mandate of the POCSO Act, and the observations made by this Court hereinabove.
(ii) The Special Courts to conclude the recording of evidence i.e.
examination-in-chief and cross-examination of the victim, as
expeditiously as possible, preferably on the same day, unless
adjournment is warranted.
(iii) The Courts to also ensure that the victim/child is not called
frequently to the Court, as this would add to victim/child’s trauma.
(iv) Adjournments whilst examining the child/victim should be
minimal and if granted, reasons be recorded warranting adjournment. Unwarranted adjournments should not be entertained.
(v) When the child/victim is examined, all precautions/safeguards
i.e. child friendly practices be taken/adopted to ensure that the child/ victim feels safe, is comfortable, and that the child/victim is not in any way exposed to the accused; that the proceedings are conducted in-camera; that all measures as stipulated in the Act and directions given by various judgments are duly complied with. It is always open for the learned Judge in cases, where necessary, to call the child/victim to Court, prior to recording of the deposition, so that, the child/victim is acclimatized/familiarized with the set-up, so that the child/victim has no fear of what to expect in Court on the day of the deposition, which can aid in the child/victim in deposing freely, without fear or anxiety.
(vi) The Court to ensure that the parents of the child or any other person in whom the child has trust or confidence, is present at the time of examination of the child, as mandated under Section 37 of the POCSO Act. If the Court is of the opinion that the child needs to be examined at a place other than the Court, it shall do so in terms of the proviso to Section 37.
(vii) The directions of the Apex Court in Children in Street
Situations, In Re, 2022 SCC OnLine SC 189 and other judgments in this regard be followed scrupulously whilst conducting trials under the POCSO Act. {Para 15}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3242 OF 2019
Atul Gorakhnath Ambale Vs The State of Maharashtra
CORAM : REVATI MOHITE DERE, J.
FRIDAY, 1 s t APRIL 2022
Print PageIt is also settled that offences which involve moral turpitude and grave offences like rape, murder etc. even if compromised cannot be quashed in exercise of High Court’s power under Section 482 Cr.P.C. inasmuch as such offences are against the State and cannot be restricted to two individuals or groups.
11. In the case in hand, the offences are grave in nature involving minor victim. The allegations are under Section 354A (2)/307 read with Section 18 of the POCSO Act. Therefore, when the offences are grave in nature and allegation is of an attempt of rape of a minor, such allegation and criminal proceeding cannot be quashed on the basis of a compromise entered into between the
families of the victim and accused inasmuch when it is a sexual offence involving a minor, the parents, in the considered opinion of this court, cannot give consent on behalf of the minor to compromise such serious offences.
THE GAUHATI HIGH COURT
KOHIMA BENCH
Case No. : CRL.REVN 5/2021
MR. LIMHATHUNG Vs THE STATE OF NAGALAND
BEFORE
MR JUSTICE ARUN DEV CHOUDHURY
Date of Judgment/ Order :24.03.2022
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(a) Bail conditions should not mandate, require or permit contact between the
accused and the victim. Such conditions should seek to protect the complainant from
any further harassment by the accused;
(b) Where circumstances exist for the court to believe that there might be a
potential threat of harassment of the victim, or upon apprehension expressed, after
calling for reports from the police, the nature of protection shall be separately
considered and appropriate order made, in addition to a direction to the accused not to
make any contact with the victim;
(c) In all cases where bail is granted, the complainant should immediately be
informed that the accused has been granted bail and copy of the bail order made over to him/her within two days;
(d) Bail conditions and orders should avoid reflecting stereotypical or patriarchal notions about women and their place in society, and must strictly be in accordance with the requirements of the Cr. PC. In other words, discussion about the dress, behavior, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail;
(e) The courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises between the prosecutrix and the accused to get married, suggest or mandatemediation between the accused and the survivor, or any form of compromise as it is beyond their powers and jurisdiction;
(f) Sensitivity should be displayed at all times by judges, who should ensure that there is no traumatization of the prosecutrix, during the proceedings, or anything said during the arguments, and
(g) Judges especially should not use any words, spoken or written, that would undermine or shake the confidence of the survivor in the fairness or impartiality of the court. {Para 44}
45. Further, courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order, to the effect that (i) women are physically weak and need protection; (ii) women are incapable of or cannot take decisions on their own; (iii) men are the “head” of the household and should take all the decisions relating to family; (iv) women should be submissive and obedient according to our culture; (v) “good” women are sexually chaste; (vi) motherhood is the duty and role of every woman, and assumptions to the effect that she wants to be a mother; (vii) women should be the ones in charge of their children,
their upbringing and care; (viii) being alone at night or wearing certain clothes make women responsible for being attacked; (ix) a woman consuming alcohol, smoking, etc. may justify unwelcome advances by men or “has asked for it”; (x) women are emotional and often overreact or dramatize events, hence it is necessary to corroborate their testimony; (xi) testimonial evidence provided by women who are sexually active may be suspected when assessing “consent” in sexual offence cases;and (xii) lack of evidence of physical harm in sexual offence case leads to an inference of consent by the woman.
46. As far as the training and sensitization of judges and lawyers, including public
prosecutors goes, this court hereby mandates that a module on gender sensitization be
included, as part of the foundational training of every judge. This module must aim at
imparting techniques for judges to be more sensitive in hearing and deciding cases of
sexual assault, and eliminating entrenched social bias, especially misogyny. The
module should also emphasize the prominent role that judges are expected to play in
society, as role models and thought leaders, in promoting equality and ensuring
fairness, safety and security to all women who allege the perpetration of sexual
offences against them. Equally, the use of language and appropriate words and
phrases should be emphasized as part of this training.
REPORTABLE
IN THE SUPREME COURT OF INDIA
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 329 OF 2021
[@ SPECIAL LEAVE PETITION (CRL.) NO. 2531 OF 2021]
(ARISING OUT OF S.L.P. (CRL.) DIARY NO. 20318 OF 2020)
APARNA BHAT & ORS. Vs STATE OF MADHYA PRADESH
Author: S. RAVINDRA BHAT, J.
Dated:March 18, 2021.
Citation: 2021 SCC OnLine SC 230,2021 ALL SCR (Cri) 732
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situation of discrimination on the basis of sex whereas it
specifically deals with sexual harassment in the workplace.
The very concept of sexual harassment in a workplace against a woman should start from an express or implied sexual advance, sexual undertone or unwelcome behaviour which has a sexual tone behind it without which provisions of Act 2013 will not apply. In Anil Rajagopal
(supra) also, this Court had while interpreting 2013 Act had
arrived at the very same finding.
14. In the result, we do not think that Anil Rajagopal
(supra) requires any reconsideration. We would only clarify that
any form of sexual approach or behaviour that is unwelcome will
come under the definition of 'sexual harassment' and it is not
confined to any of the sub clauses mentioned in Section 2(n),
which of course will depend upon the materials placed on record
and on a case to case basis. But it is made clear that in order to
take action under the 2013 Act, the acts complained of should
come within the purview of S.2(n) and Section 3 of the Act or any
other form of sexual treatment or sexual behaviour on the part of the respondent.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR.JUSTICE A.M.SHAFFIQUE
&
MR. JUSTICE GOPINATH P.
Dated: 02ND DAY OF DECEMBER 2020
WP(C).No.9219 OF 2020(B)
DR.PRASAD PANNIAN Vs THE CENTRAL UNIVERSITY OF KERALA
Author: Shaffique, J.
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