NIPUN SAXENA & ANR. versus UNION OF INDIA & ORS.
[2018] 14 S.C.R. 755, Supreme Court of India, 2018
Outcome: Disposed off
Segment: Facts
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NIPUN SAXENA & ANR.
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 565 of 2012)
DECEMBER 11, 2018
[MADAN B. LOKUR AND DEEPAK GUPTA, JJ.]
Penal Code, 1860 – s.228A – Victims of sexual offences –
Protection of their identity – Directions issued – Held: No person
can print or publish the name of the victim or disclose any facts
which can lead to the victim being identified and which should make
her identity known to the public at large – Copy of  FIR relating to
the offence of rape against women shall not be put in the public
domain – 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) –
Authorities to which the name is disclosed 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 – Where a
victim files an appeal, it can be filed by showing her name as ‘X’ or
‘Y’ along with application for non-disclosure of the name of the
victim – 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 – 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 – There may be situations where the next
of kin may be justified in disclosing the identity of the victim – If
any such need should arise, an application to authorise disclosure
of identity should be made only to the Sessions Judge/Magistrate
concerned who shall decide the application on the basis of the law
– However, till date the Government has not identified any social or
welfare institutions to whom the next of kin should give the
authorization – If the Government wants to actually act
u/s.228A(2)(c), it must before identifying such social welfare
[2018] 14 S.C.R. 755
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institution or organisation clearly lay down some rules or clear cut
criteria in this regard – Till that is done, the directions issued shall
prevail – Constitution of India – Art.142 – Code of Criminal
Procedure, 1973 – s.327(2).
Protection of Children from Sexual Offences Act, 2012 – ss.23,
24, 25, 33 and 37 – Children subjected to offences under the POCSO
Act – Rights of – Held: No report in any media shall disclose identity
of the child including name, address, photograph, family details,
school, neighbourhood or any other particulars which may lead to
the disclosure of the identity of the child – FIR relating to offences
under POCSO Act not to be put in the public domain – Purpose of
the POCSO Act is to ensure that the identity of the child is not
disclosed unless the Special Court for reasons to be recorded in
writing permits such disclosure – This  disclosure can only be made
if it is in the interest of the child and not otherwise – Directions
issued by the Calcutta High Court in Bijoy v. State of West Bengal
are agreed with – Chairpersons and Members of all the Juvenile
Justice Committee of all the High Courts in the country to go through
the judgment of the Calcutta High Court and the directions issued
therein and issue similar directions, keeping in view the particular
needs of each High Court/State – Directions issued – Judgment be
sent to the Registrar General of all the High
Courts to be placed
before the Chairpersons of the Juvenile Justice Committee of all
the High Courts for issuance of appropriate orders and directions.
Words & Phrases – “matter which may make known the
identity of the person” – Meaning of – Held: Phrase “matter which
may make known the identity of the person” in s.228A, IPC 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 – Penal Code,
1860 – s.228A.
Penal Code, 1860 – s.228A(2)(c) – If applicable to minors –
Held: Where victim is a minor, s.228A(2)(c) will no longer apply
because of the enactment of POCSO which deals specifically with
minors – Thus, the words ‘or minor’ should for all intents and
purposes be deemed to be deleted from clause (c) of sub-section (2)
of s.228A, IPC.
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Words & Phrases – “any other particulars” – Interpretation
of – Held: Phrase ‘any other particulars’ in  s.23(2) of the 2012 Act
will have to be given the widest amplitude and cannot be read only
ejusdem generis – Intention of the legislature is that the privacy and
reputation of the child is not harmed – Therefore, any information
which may lead to the disclosure of the identity of the child cannot
be revealed by the media – Protection of Children from Sexual
Offences Act, 2012 – s.23(2) – Interpretation of Statutes.
Protection of Children from Sexual Offences Act, 2012 –
s.23(4) – Offence under – When attracted – Held: 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 u/s.23(4) of the 2012 Act.
Disposing of the petitions, the Court
HELD: 1.1  Sub-section (1) of Section 228A, IPC provides
that any person who makes known the name and identity of a
person who is an alleged victim of an offence falling under Sections
376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E
commits a criminal offence and shall be punishable for a term
which may extend to two years.  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.  [Paras 9, 10][770-A-C]
1.2 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. 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
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published in the media. The intention of the law makers was that
the victim of such offences should not be identifiable so that they
do not face any hostile discrimination or harassment in the future.
A victim of rape will face hostile discrimination and social
ostracisation in society.  [Paras 11, 12][770-D-F]
1.3 Sub-section (2) of Section 228A IPC makes an exception
for police officials who may have to record the true identity of the
victim in the police station or in the investigation file. In the first
information report (‘FIR’) the name of the victim will have to be
disclosed.  However, this should not be made public and especially
not to the media.  The police officers investigating such cases
and offences should also as far as possible either use a pseudonym
to describe the victim unless it is absolutely necessary to write
down her identity. The copy of an FIR relating to the offence of
rape against women or offences against children falling within
the purview of POCSO shall not be put in 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).
The authorities to which the name is disclosed, 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 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, 2005.  The police officials 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
be filed in the court along with the report filed under Section 173
CrPC. As far as clause (b) of sub-section (2) of Section 228A IPC
is concerned, if an adult victim has no objection to her name being
published or identity being disclosed, she can obviously authorize
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any person in writing to disclose her name.  This has to be a
voluntary and conscious act of the victim. [Paras 13, 14]
[771-B-H; 772-A-C]
1.4 Where the victim is a minor, Section 228A(2)(c) will no
longer apply because of the enactment of POCSO which deals
specifically 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 228A IPC. [Para 15]
[772-D]
2.1 Till date neither the Central Government nor any State
Government has recognized any such social welfare institutions
or organizations to whom the next of kin should give the
authorization. A person of unsound mind is as much a citizen of
the country as a sane person. A person of unsound mind who is
also subjected to such a heinous sexual offence suffers a trauma
which is unimaginable.  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.  If a campaign has to be
started to protect the rights of the victim and mobilise public
opinion it can be done so without disclosing her identity.
[Paras 16, 17][772-F-G; 773-B-C]
2.2 The name of the victim or her identity should not be
disclosed even under the authorization of the next of the kin,
without permission of the competent authority. In certain cases,
the interest of the next of kin may not be the same
as the interest
of the victim.  In such circumstances, the applicant may not be
the next of kin, but the “next friend” of the child, who may be
entitled to move such an application.  It will be for the Court or
the competent authority to decide who is the “next friend”.
[Paras 18, 19][773-E-G]
2.3 There may be cases where the identity of the victim, if
not her name, may have to be disclosed.  There may be cases
where a dead-body of a victim is found.  It is established that the
victim was subjected to rape. It may not be possible to identify
the victim.  Then, obviously her photograph will have to be
published in the media. Even here, it is directed that while this
may be done, the fact that such victim has been subjected to a
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sexual offence need not be disclosed. There 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 it is
directed 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. Power is exercised
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.  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, directions issued shall prevail. [Para 21]
[774-B-E]
3.1 As far as sub-section (3) of Section 228A IPC is
concerned, the IPC clearly lays down that nobody can print or
publish any matter in relation to any proceedings falling within
the purview of Section 228A and in terms of Section 327(2) CrPC.
These are in camera proceedings and nobody except the presiding
officer, the court staff, the accused, his counsel, the public
prosecutor, the victim, if at all she wants to be present or the
witness shall be there.  It is the bounden duty of all of them to
ensure that what happens in court is not disclosed outside.  This
is not to say that there can be no reporting of such cases. The
press can report that the case was fixed before Court and some
witnesses were examined.  It can report for what purpose the
case was listed but it cannot report what transpired inside the
court or what was the statement of the victim or the witnesses.
The evidence cannot be disclosed. [Para 22][774-F-H; 775-A]
3.2  Keeping in view the social object of preventing
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.
[Para 25][777-E]
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3.3 Where a victim files an appeal it is directed 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. [Para 27][778-F-H]
4.1 The entire purpose of the Protection of Children from
Sexual Offences Act, 2012 (POCSO) is to ensure that the identity
of the child is not disclosed unless the Special Court for reasons
to be recorded in writing permits such disclosure. This disclosure
can only be made if it is in the interest of the child and not
otherwise. The disclosure of the name of the child to make the
child a symbol of protest cannot normally be treated to be in the
interest of the child. Sub-section (1) of Section 23 prohibits any
person from filing any report or making any comments on any
child in any form, be it written, photographic or graphic without
first having complete and authentic information. No person or
media
can make any comments which may have the effect of
lowering the reputation of the child or infringing upon the privacy
of the child. Sub-section (2) of Section 23 clearly lays down that
no report in any media shall disclose identity of a child including
name, address, photograph, family details, school, neighbourhood
or any other particulars which may lead to the disclosure of the
identity of the child. This clearly shows that the intention of the
legislature was that the identity of the child should not be disclosed
directly or indirectly.  The phrase ‘any other particulars’ will have
to be given the widest amplitude and cannot be read only ejusdem
generis. The intention of the legislature is that the privacy and
reputation of the child is not harmed. Therefore, any information
which may lead to the disclosure of the identity of the child cannot
be revealed by the media. The media has to be not only
circumspect but a duty has been cast upon the media to ensure
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that it does nothing and gives no information which could directly
or indirectly lead to the identity of the child being disclosed.
[Paras 30, 31][780-E-G; 781-G-H; 782-A-C]
4.2 No doubt, it is the duty of the media to report every
crime which is committed. The media can do this without
disclosing the name and identity of the victim in case of rape and
sexual offences against children. The media not only has the right
but an obligation to report all such cases. However, media should
be cautious not to sensationalise the same. 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). [Paras 32, 33][782-D, G-H]
4.3 The same reasoning given above with respect to
revealing the identity to garner support for victims will apply to
dead victims also. Even the dead have their own dignity.
They cannot be denied dignity only because they are dead.
[Para 34][783-B-C]
4.4
In the case of Bijoy v. State of West Bengal the
Calcutta High Court has given 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. All these
directions are agreed with.   All the Chairpersons and Members
of all the Juvenile Justice Committee of all the High Courts in
the country are requested to go through the judgment of the
Calcutta High Court and the directions issued therein and they
may issue similar directions, keeping in view the particular needs
of each High Court/State. [Para 38][784-D-G]
4.5  POCSO mandates setting up of child-friendly courts.
Any litigant who enters the court feels intimidated by the
atmosphere of the court. Children and women, especially those
who have been subjected to sexual assault are virtually
overwhelmed by the atmosphere in the courts. It is, therefore,
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imperative that there are courts which are child friendly.  Section
33(4) POCSO enjoins on the Special Court to ensure that there
is child friendly atmosphere in court. Section 36 lays down that
the child should not see the accused at the time of testifying.
This is to ensure that the child does not get scared on seeing the
alleged perpetrator of the crime.  As noted above, trials are to be
conducted in camera. These courts need not only be used for
trying cases under the POCSO but can also be used as trial courts
for trying cases of rape against women. In fact, it would be in the
interest of children and women, and in the interest of justice if
one stop centres are also set up in all the districts of the country
as early as possible.  These one stop centres can be used as a
central police station where all crimes against women and children
in the town/city are registered. They should have well trained
staff who are sensitive to the needs of children and women who
have undergone sexual abuse. One such centre which has already
been set up is “BHAROSA” in Hyderabad.  This can be
used as a model for other one stop centres in the country.
[Paras 39-42][785-A-F; 786-B]
4.7 The following directions are issued:-
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 IPC  and
offences under POCSO shall not be put in the public domain.
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.
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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 IPC should be made only to the Sessions
Judge concerned until the Government acts under Section
228A(2)(c) and lays down a criteria as per the directions given by
this Court 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. [Para 43][786-C-H; 787-A-D]
Bijoy v. State of West Bengal 2017 CriLJ 3893 –
approved.
State of Punjab
v. Gurmit Singh (1996) 2 SCC 384 :
[1996] 1 SCR 532 ; Bhupinder Sharma v. State of
Himachal Pradesh (2003) 8 SCC 551 : [2003] 4 Suppl.
SCR 792 – relied on.
Nivedita Jha v. State of Bihar SLP (C) No. 24978 of
2018 ; Aju Varghese v. State of Kerala Decided by
Kerala High Court on 27.09.2018 in  Crl. MC No.5247
of 2017 ; Subash Chandra Rai v. State of Sikkim 2018
CriLJ 3146 – referred to.
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Case Law Reference
[1996]  1 SCR 532
relied on
Para 5
[2003] 4 Suppl. SCR 792
relied on
Para 25
2018 CriLJ 3146
referred to
Para 37
2017 CriLJ 3893
approved
Para 38
CIVIL/CRIMINAL ORIGINAL JURISDICTION : Writ Petition
(Civil) No. 565 of 2012.
Under Article 32 of the Constitution of India
With
Writ Petition (Criminal) No. 1 of 2013
Writ Petition (Civil) Nos. 22 and 148 of 2013
Writ Petition (Civil) No. 568 of 2012
SLP (CRL.)….CRLMP No. 16041 of 2014.
A.N.S. Nadkarni, ASG, Vikas Mahajan, AAG, Alok Agrawal,
Member Secretary (NALSA), Ms. Indira Jaising, Sr. Adv.(AC),
A. K. Panda, Sr. Adv., Ms. Ajita Sharma, Ms. Aanchal Singh,
P.S. Tripathi, Ravi Chandra Prakash, Mukesh Kumar Singh,  Ms. Bhanu
Priya Sharma, Mohit Kaushik, Ms. Vani Vyas, Amit, Dr. Gajendra Prasad
Singh,  Prashant Chaudhary,  R.P. Gupta,  E.C. Agrawala, Ardhendumauli
Kumar Prasad, Ms. Taruna Ardhendumauli Prasad,  Namit Saxena,
Amritesh Raj, Piyush Singh, Nitesh Ranjan, Vaibhav Shrivastava, Sashank
Saxena, Ms. Bhakti Pasrija Sethi, M.P. Gupta, Ms. Saudamini Sharma,
B.V. Balaram Das, Shailender Saini, Ms. Sunita Sharma, Raj Bahadur
Yadav, Mrs. Anil Katiyar, G.S. Makker, S. Wasim A Qadri, Jubair Ahmad
Khan,  Tamim Qadri, Zaid Ali Subzposh, Saeed Qadri,  Ms. Anitha Shenoy,
Ms. Diksha Rai, Palak Mahajan,  Guntur Prabhakar, Ms. Prerna Singh,
Anil Shrivastav, Rituraj Biswas, Satyendra Kumar Srivastav, Ms. Abha
R. Sharma, D.S. Parmar, Ms. Sujeeta Srivastava,  Mahender Singh,
A.P. Mayee,  Chirag Jain,
Ms. Ruchira Gupta, Santosh Rebello, Anurag
Sharma, Shishir Deshpande,  Ms. Hemantika Wahi, Ms. Puja Singh,
Sanjay Kumar Visen, Vinod Sharma, Tapesh Kumar Singh, Aditya Pratap
Singh, M. Shoeb Alam, Ujjwal Singh, Mojahid Karim Khan,
V.N. Raghupathy, Lagnesh Mishra, Parikshit P. Angadi, C.K. Sasi,
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Nayantara Roy,  Sunny Choudhary, Abhilash Attri, Ms. Deepa M.
Kulkarni, Nishant Ramakantrao Katneshwarkar, Leishangthem
Roshmani, Ms. Maibam Babina, Ms. Anupama Ngangom, Ranjan
Mukherjee, K.V. Kharlyngdoh, Daniel Stone Lyngdoh, T.G. Narayanan
Nair,  Ms. K. Enatoli Sema, Amit Kumar Singh, Surya Prasad Misra,
Shibhashish Misra, Chandan Kumar Mandal, Ashish Kumar Sinha, Karan
Bharihoke, Kaushal Narayan Mishra, Ms. Navkiran Bolay,  Nalin Kohli,
Ankit Roy, Milind Kumar,  Ms. Aruna Mathur, Avneesh Arputham, Ms.
Anuradha Arputham, Ms. Geetanjali (for M/s Arputham Aruna & Co.),
M. Yogesh Kanna, Ms. Sujatha Bagadhi, S. Partha Sarathi, S.Raja
Rajeshwaran, S. Udaya Kumar Sagar, Mritunjai Singh, Shuvodeep Roy,
Rituraj Biswas,  Ms. Garima Prasad, Ms. Poonam Anand, Ms. Rachana
Srivastava, Ms. Monika, Aviral Saxena, Suhaan  Mukerji, Ms. Astha
Sharma, Amit Verma, Abhishek Manchanda, Ms. Kajal Dalal, Ms. Dimple
Nagpal (for PLR Chambers & Co.),  K. V. Jagdishshvaran,
Mrs. G. Indira, Mrinal K. Mondal, Ms. Kamakshi S. Mehlwal, Sanveer
Mehlwal, Raju Sonkar, Chirag M. Shroff, V.G. Pragasam, Prabu
Ramasubramanian, S. Manuraj, Ms. Aditi Gupta, Satya Mitra, T.N. Rama
Roy, Hitesh Kumar Sharma, T. Veera Reddy, Advs. for the appearing
parties.
Nipun Saxena, Petitioner-in-person.
The Judgment of the Court was delivered by
DEEPAK GUPTA, J.
1. How and in what manner the identity of adult victims of rape
and children
who are victims of sexual abuse should be protected so that
they are not subjected to unnecessary ridicule, social ostracisation and
harassment, is one of the issues which arises in these cases.
2. We are dividing this judgment into two parts.  The first 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..
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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
like an accused.  If the victim is a young girl who has been dating and
going around with a boy, she is asked in intimidating terms as to why she
was dating a boy.  The victim’s first brush with justice is an unpleasant
one where she is made to feel that she is at fault; she is the cause of the
crime.
5. If the victim is strong enough to deal with the recriminations
and insinuations made against her by the police, she normally does not
find much succour even in court.  In Court the victim is subjected to a
harsh cross-examination wherein a lot of questions are raised about the
victim’s morals and character.  The Presiding Judges sometimes sit like
mute
spectators and normally do not prevent the defence from asking
such defamatory and unnecessary questions.  We want to make it clear
that we do not, in any manner, want to curtail the right of the defence to
cross-examine the prosecutrix, but the same should be done with a certain
level of decency and respect to women at large.  Over a period of time,
lot of effort has been made to sensitise the courts, but experience has
shown that despite the earliest admonitions, the first as far back as in
19961, the Courts even today reveal the identity of the victim.
6. Section 228A was introduced in the IPC vide Amendment Act
No. 43 of 1983 with effect from 25.12.1983 and reads as follows:
“228A. 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
1State of Punjab v. Gurmit Singh, (1996) 2 SCC 384
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offence under section 376, section 376A, section 376AB, section
376B, section 376C, section 376D, section 376DA, section 376DB
or section 376E 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 fine.
(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 officer-in-charge of
the police station or the police officer 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 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.”
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7. We may also refer to Section 327 of the Code of Criminal
Procedure, 1973 (for short ‘CrPC’) which provides that Courts should
be open and normally public should have access to the Courts.  Sub-
section (2) of Section 327 was inserted by the same Amendment Act
No.43 of 1983.  Section 327, as amended, reads as follows:-
“Section 327. Court to be open.-
(1) The place in which any criminal Court is held for the purpose
of inquiring into or trying any offence shall be deemed to be an
open Court to which the public generally may have access, so far
as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks
fit, order at any stage of any inquiry into, or trial of, any particular
case, that the public generally, or any particular person, shall not
have access to, or be or remain in, the room or building used by
the Court.
(2) Notwithstanding anything contained in sub-section (1), the
inquiry into and trial of rape or an offence under section 376,
section 376A, section 376AB, section 376B, section 376C, section
376D, section 376DA, section 376DB or section 376E of the Indian
Penal Code (45 of 1860) shall be conducted in camera:
Provided that the presiding Judge may, if he thinks fit, or on an
application made by either of the parties, allow any particular person
to have access to, or be or remain in, the room or building used by
the Court:
Provided further that in camera trial shall be conducted as far as
practicable by a woman Judge or Magistrate.
(3) Where any proceedings are held under sub-section (2), it shall
not be lawful for any person to print or publish any matter in
relation to any such proceedings, except with the previous
permission of the Court:
Provided that the ban on printing or publication of trial proceedings
in relation to an offence of rape may be lifted, subject to maintaining
confidentiality of name and address of the parties.”
8. Vide the Amendment Act of 1983 cases of rape, gang rape etc.
were excluded from the category of cases to be tried in open Court.
Later other similar offences were included vide Amendment Act of 2013.
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9. Sub-section (1) of Section 228A, provides that any person who
makes known the name and identity of a person who is an alleged victim
of an offence falling under Sections 376, 376A, 376AB, 376B, 376C,
376D, 376DA, 376DB or 376E commits a criminal offence 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 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 identifiable
so that they do not face any hostile discrimination or harassment in the
future.
12. A victim of rape will face hostile discrimination and social
ostracisation in society.  Such victim will find it difficult to get a job, will
find it difficult to get married and will also find it difficult 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, it 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 find out and establish her identity.  In another instance, footage is
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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
identified and which should make her identity known to the public at
large.
13. Sub-section (2) of Section 228A IPC makes an exception for
police officials who may have to record the true identity of the victim in
the police station or in the investigation file.  We are not oblivious to the
fact that in the first 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 officers investigating such cases and offences 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
offences against children falling within the purview of POCSO shall not
be put in 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 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 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, 2005.  We direct that the police officials should keep
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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 be filed in the court
along with the report filed under Section 173 CrPC.
14. As far as clause (b) of sub-section (2) of Section 228A IPC is
concerned, if an adult victim has no objection to her name being published
or identity being disclosed, she can obviously authorize 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 228A IPC,
we are of the opinion that where the victim is a minor, Section 228A will
no longer apply because of the enactment of POCSO which deals
specifically 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 228A 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 recognized welfare institutions or organizations to declare
the name.  As per the materials placed before us till date neither the
Central Government nor any State Government has recognized any such
social welfare institutions or organizations to whom the next of kin should
give the authorization.
17. Before dealing with this technical aspect as to whom the
authorisation is to be given, we feel that a word of caution is needed
with regard to the right of the next of the kin of the victim.  A person of
unsound mind is as much a citizen of the country as a sane person.  A
person of unsound mind who is also subjected 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
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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 the rights of the victim and mobilise
public opinion it can be done so without disclosing her identity.
18. We may also add that in this modern age where we have dealt
with cases where daughters have been raped by their fathers, where
victims of rape especially minor victims are very often subjected to this
heinous crime either by family members or friends of the family, it is not
unimaginable that the so called next of kin may for extraneous reasons
including taking money from a media house or a publishing firm which
wants to publish a book, disclose the name of the victim.  We do not, in
any manner, want to comment upon the role of the parents
but we cannot
permit even one case of this type and in the larger interest we feel that,
as a matter of course, the name of the victim or her identity should not
be disclosed even under the authorization of the next of the kin, without
permission of the competent authority.
19. It has been urged on behalf of the Union of India that the
words “next of kin” will have to be given the same definition as is
contemplated under the Indian Succession Act, 1925.  We do not want
to enter into this dispute.  As pointed by us, in certain cases, the interest
of the next of kin may not be the same as the interest of the victim.  In
such circumstances, the applicant may not be the next of kin, but the
“next friend” of the child, who may be entitled to move such an application.
It will be for the Court or the competent authority to decide who is the
“next friend”.
20. As pointed out above, neither the Central Government nor
any State Government has recognized any such welfare institution or
organization.  No guidelines have been laid down in the IPC as to what
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will be the nature of such organisation and what will be the qualifications
of the persons who are made the Chairman or Secretary of such
organisation.  These matters cannot be left indeterminate.
21. There may be cases where the identity of the victim, if not her
name, may have to be disclosed.  There may be cases where a dead-
body of a victim is found.  It is established that the victim was subjected
to rape.  It may not be possible to identify the victim.  Then, obviously
her photograph will have to be published in the media.  Even here, we
would direct that while this may be done, the fact that such victim has
been subjected to a sexual offence need not be disclosed.  There 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 print or publish any matter in relation to any proceedings falling
within the purview of Section 228A and in terms of Section 327(2) CrPC.
These are in camera proceedings and nobody except the presiding officer,
the court staff, the accused, his counsel, the public prosecutor, the victim,
if at all she wants to be present or the witness shall be there.  It is the
bounden duty of all of them to ensure that what happens in court is not
disclosed outside. This is not to say that there can be no reporting of
such cases. The press can report that the case was fixed before Court
and some witnesses were examined.  It can report for what purpose the
case was listed but it cannot report what transpired inside the court or
what was the statement of the victim or the witnesses. The evidence
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cannot be disclosed.  We are not elaborating and dealing with the issue
of publication in press in greater detail since this issue is engaging our
attention in Nivedita Jha’s case2 but it is clear that nobody can be
permitted to violate Section 327(3) CrPC, the language of which is very
clear and unambiguous.
23. Sub-section (3) of Section 228A IPC makes printing or
publication of any matter in relation to such proceedings before a court
an offence unless its publication is made with the previous permission of
such court.
24. This Court, more than two decades back in Gurmit Singh’s
case (supra) raised a note of caution.  It found that sexual crimes against
women were rising.  This court held that victims of sexual abuse or
assault were treated without any sensitivity during the course of
investigation and trial.  The Court further held that trial of rape cases in
camera should be the rule and open trial an exception.  Though the
Court did not refer to Section 228A IPC, the following observations are
pertinent:
“21. Of late, crime against women in general and rape in particular
is on the increase. It is an irony that while we are celebrating
woman’s rights in all spheres, we show little or no concern for her
honour. It is a sad reflection on the attitude of indifference of the
society towards the violation of human dignity of the victims of
sex crimes. We must remember that a rapist not only violates the
victim’s privacy and personal integrity, but
inevitably causes serious
psychological as well as physical harm in the process. 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
2Nivedita Jha v. State of Bihar, SLP(C) No. 24978 of 2018
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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 control the recording of evidence in the court. While
every latitude should be given to the accused to test the veracity
of the prosecutrix and the credibility of her version through cross-
examination, the court must also ensure that cross-examination is
not made a means of harassment or causing humiliation to the
victim of crime. A victim of rape, it must be remembered, has
already undergone a traumatic experience and if she is made to
repeat again and again, in unfamiliar surroundings what she had
been subjected to, she may be too ashamed and even nervous or
confused to speak and her silence or a confused stray sentence
may be wrongly interpreted as “discrepancies and contradictions”
in her evidence.”
Dealing with Section 327 CrPC this Court held as follows:-
24……..It would enable the victim of crime to be a little
comfortable and answer the questions with greater ease in not
too familiar a surroundings.
Trial in camera would not only be in
keeping with the self-respect of the victim of crime and in tune
with the legislative intent but is also likely to improve the quality of
the evidence of a prosecutrix because she would not be so hesitant
or bashful to depose frankly as she may be in an open court,
under the gaze of public. The improved quality of her evidence
would assist the courts in arriving at the truth and sifting truth
from falsehood…………..The courts should, as far as possible,
avoid disclosing the name of the prosecutrix in their orders to
save further embarrassment to the victim of sex crime. The
anonymity of the victim of the crime must be maintained as far as
possible throughout. In the present case, the trial court has
repeatedly used the name of the victim in its order under appeal,
when it could have just referred to her as the prosecutrix. We
need say no more on this aspect and hope that the trial courts
would take recourse to the provisions of Sections 327(2) and (3)
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CrPC liberally. Trial of rape cases in camera should be the rule
and an open trial in such cases an exception.”
25. Bhupinder Sharma v. State of Himachal Pradesh3 is one
of first cases where specific reference was made to Section 228A IPC.
This Court held as follows:-
“2. We do not propose to mention the name of the victim. Section
228-A of the Indian Penal Code, 1860 (in short “IPC”) makes
disclosure of the identity of victims of 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.  This has been repeated in a large
number of cases and we need not refer to all.
26. The Kerala High Court in the case of Aju Varghese v. State
of Kerala4 held as follows:-
“8. The statutory provision as explained by the Supreme Court
clearly shows that the provision was specifically intended to ensure
that the victim is not exposed to further agony by the consequent
social victimization or ostracism pursuant to disclosure of her
identity. It is clear that, it is intended to protect her from
psychological and sociological torture or mental agony, that may
3(2003) 8 SCC 551
4 Crl. MC No.5247 of 2017 decided on 27.09.2018
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follow the unfortunate incident of sexual violence. Society has a
duty to support the victims of sexual violence and to ensure that
they come back to normalcy and start leading a normal life. Victims
of such violence are not denuded of their fundamental right to
privacy and are liable to be insulated against unnecessary public
comments. Definitely, it serves an avowed social purpose and
has an element of public interest involved in it. Section is so clear,
unambiguous and the consequence of breach of it is inescapable
and the question whether the disclosure was intended, bonafide
or without knowledge of law has not relevance. Hence, the
provision of section 228A IPC prohibiting the disclosure of the
name by an accused is absolute and cannot be diluted.”
27. 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 IPC 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 CrPC?
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.
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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 because a major victim being an adult
may still be able to withstand the social ostracization and mental
harassment meted out by society, but a minor victim will find it difficult
to do so.  Most crimes against minor victims are not even reported as
very often, the perpetrator of the crime is a member of the family of the
victim or a close friend.  Efforts are made to hush up the crime.  It is
now recognised that a child needs extra protection.  India is a signatory
to the United Nations Convention on the Rights of Child, 1989 and
Parliament thought it fit to enact POCSO in the year 2012, which
specifically deals with sexual offences against all children.  The Act is
gender neutral and whatever we say in this Part will apply to all children.
30. Chapter VI of POCSO deals with procedure relating to
recording the statement of a child.  Section 24 deals with the statement
recorded by the police.  For our purpose sub-section (5) of Section 24 is
relevant which reads as follows:
“Section 24 - Recording of statement
of a child.-
xxx
xxx
xxx
xxx
xxx
xxx
(5) The police officer shall ensure that the identity of the child is
protected from the public media, unless otherwise directed by the
Special Court in the interest of the child.”
Section 25 POCSO states that statements of the child recorded
under Section 164 CrPC which permits an advocate to be present will
not be applicable in the case of children. Trials under POCSO 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:
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“Section 33 - Procedure and powers of Special Court.-
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(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-section, the identity of
the child shall include the identity of the child’s family, school,
relatives, neighbourhood or any other information by which the
identity of the child may be revealed.”
Section 37 provides that all trials under POCSO are to be
conducted in camera unless otherwise specifically decided for reasons
to be recorded by the Special Court.  A bare reading of Section 24(5)
and Section 33(7) makes it amply clear that the name and identity of the
child is not to be disclosed at any time during the course of investigation
or trial and the identity of the child is protected from the public or media.
Furthermore, Section 37 provides that the trial is to be conducted in
camera which means that the media cannot be present.  The entire
purpose of the POCSO is to ensure that the identity of the child is not
disclosed unless the Special Court for reasons to be recorded in writing
permits such disclosure.  This disclosure can only be made if it is in the
interest of the
child and not otherwise.  One such case where disclosure
of the identity of the child may be necessary can be where a child is
found who has been subjected to a sexual offence and the identity of the
child cannot be established even by the investigating team.  In such a
case, the Investigating Officer or the Special Court may allow the
photograph of the child to be published to establish the identity.  It is
absolutely clear that the disclosure of the identity can be permitted by
the Special Court only when the same is in the interest of the child and in
no other circumstances.  We are of the view that the disclosure of the
name of the child to make the child a symbol of protest cannot normally
be treated to be in the interest of the child.
31. It is contended by the learned amicus curiae that interest of
the child has not been defined.  We are of the view that it is neither
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feasible nor would it be advisable to clearly lay down what is the meaning
of the phrase “interest of the child”.  We have, however, given some
examples hereinabove and we do not want to tie down the hands of the
Special Court, who may have to deal with such cases.  Each case will
have to be dealt within its own factual scenario.
Section 23 of POCSO contains provisions which relate to
procedure for media.  It reads as follows:
“Section 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 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
report or making any comments on any child in any form, be it written,
photographic or graphic without first having complete and authentic
information.  No person or media can make any comments which may
have the effect of lowering the reputation of the child or infringing upon
the privacy of the child.  Sub-section (2) of Section 23 clearly lays down
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that no report in any media shall disclose identity of a child including
name, address, photograph, family details, school, neighbourhood or any
other particulars which may lead to the disclosure of the identity of the
child.  This clearly shows that the intention of the legislature was that
the identity of the child should not be disclosed directly or indirectly.  The
phrase ‘any other particulars’ will have to be given the widest amplitude
and cannot be read only ejusdem generis.  The intention of the legislature
is that the privacy and reputation of the child is not harmed.  Therefore,
any information which may lead to the disclosure of the identity of the
child cannot be revealed by the media.  The media has to be not only
circumspect but a duty has been cast upon the media to ensure that it
does nothing and gives no information which could directly or indirectly
lead to the identity of the child being disclosed.
32. No doubt, it is the duty of the media to report every crime
which is committed.  The media can do this without disclosing the name
and identity of the victim in case of rape and sexual offences against
children.  The media not only has the right but an obligation to report all
such cases.  However, media should be cautious not to sensationalise
the same.  The media should refrain from talking to the victim because
every time the victim repeats the tale of misery, the
victim again undergoes
the trauma which he/she has gone through.  Reportage of such cases
should be done sensitively keeping the best interest of the victims, both
adult and children, in mind.  Sensationalising such cases may garner
Television Rating Points (TRPs) but does no credit to the credibility of
the media.
33. Where a child belongs to a small village, even the disclosure
of the name of the village may contravene the provisions of Section
23(2) POCSO because it will just require a person to go to the village
and find out who the child is.  In larger cities and metropolis like Delhi
the disclosure of the name of the city by itself 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).
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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 above for victims will apply
to dead victims also.  In the case of dead victims, we have to deal with
another factor.  We have to deal with the important issue that even the
dead have their own dignity.  They cannot be denied dignity only because
they are dead.
35. Though in this case we are dealing with cases of victims but
we may make reference to Section 74 of the Juvenile Justice (Care and
Protection of Children) Act, 2015, which reads as follows:-
“Section 74. Prohibition on disclosure of identity of
children.-
(1) No report in any newspaper, magazine, news-sheet or audio-
visual media or other forms of communication regarding any inquiry
or investigation or judicial procedure, shall disclose the name,
address or school or any other particular, which may lead to the
identification of a child in conflict with law or a child in need of
care
and protection or a child victim or witness of a crime, involved
in such matter, under any other law for the time being in force,
nor shall the picture of any such child be published:
Provided that for reasons to be recorded in writing, the Board or
Committee, as the case may be, holding the inquiry may permit
such disclosure, if in its opinion such disclosure is in the best interest
of the child.
(2) The Police shall not disclose any record of the child for the
purpose of character certificate or otherwise in cases where the
case has been closed or disposed of.
(3) Any person contravening the provisions of sub-section (1) shall
be punishable with imprisonment for a term which may extend to
six months or fine which may extend to two lakh rupees or both.”
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36. The name, address, school or other particulars which may
lead to the identification of the child in conflict with law cannot be
disclosed in the media.  No picture of such child can be published.  A
child who is not in conflict with law but is a victim of an offence especially
a sexual offence needs this protection even more.
37. The Sikkim High Court in Subash Chandra Rai v. State of
Sikkim5 dealing with this issue held as follows:-
“27……….The mandate of the provision requires no further
clarification. Suffice it to say that neither for a child in conflict
with law, or a child in need of care and protection, or a child
victim, or witness of a crime involved in matter, the name, address,
school 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 Bengal6, 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 Chairpersons
and Members of all the Juvenile Justice Committee of all the High Courts
in the country to go through the judgment of the Calcutta High Court and
the directions issued therein and they may issue similar directions, keeping
in view the particular needs of each High Court/State.
52018 CriLJ 3146
62017 CriLJ 3893
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39. Before parting we would like to emphasize the need to have
child friendly courts.  POCSO mandates setting up of child-friendly courts.
Though some progress has been made in this regard, a lot still requires
to be done.
40. Any litigant who enters the court feels intimidated by the
atmosphere of the court. Children and women, especially those who
have been subjected to sexual assault are virtually overwhelmed by the
atmosphere in the courts. They are scared.  They are so nervous that
they, sometimes, are not even able to describe the nature of the crime
accurately.  When they are cross-examined in a hostile and intimidatory
manner then the nervousness increases and the truth does not come out.
41. It is, therefore, imperative that we should have courts which
are child friendly.  Section 33(4) POCSO enjoins on the Special Court to
ensure that there is child friendly atmosphere in court.  Section 36 lays
down that the child should not see the accused at the time of testifying.
This is to ensure that the child does not get scared on seeing the alleged
perpetrator of the crime.  As noted above, trials are to be conducted in
camera.  Therefore, there is a need to have courts which are specially
designed to be child friendly and meet the needs of child victims and the
law.  42. These courts need not only be used for trying cases under the
POCSO but can also be used as trial courts for trying cases of rape
against women.  In fact, it would be in the interest
of children and women,
and in the interest of justice if one stop centres are also set up in all the
districts of the country as early as possible.  These one stop centres can
be used as a central police station where all crimes against women and
children in the town/city are registered.  They should have well trained
staff who are sensitive to the needs of children and women who have
undergone sexual abuse.  This staff should be given adequate training to
ensure that they talk to the victims in a compassionate and sensitive
manner.  Counsellors and psychiatrists should also be available on call at
these centres so that if necessary 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
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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 centres in the country.
43. 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 IPC and
offences under POCSO shall not be put in the public domain.
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.
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.
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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 IPC should be made only to
the Sessions Judge concerned until the Government acts
under Section 228A(2)(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.
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
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the child to the District Legal Services Authority for necessary legal aid/
representation under section 40 of the Act. Failure to register First
Information Report in respect of offences punishable under sections 4,
6, 7, 10 & 12 of POCSO shall attract penal liability under section 166-B
of the Indian Penal Code as the aforesaid offences are cognate and/or
pari materia to the Penal Code offences referred to in the said penal
provision.
2. The Police Officer on registration of FIR shall promptly forward
the child for immediate emergency medical aid, whenever necessary,
and/or for medical examination under section 27 of the Act and ensure
recording of the victim’s statement before Magistrate under Section 25
of the Act. In the event, the Police Officer or the Special Juvenile Police
Unit is of the opinion that the child falls within the definition of “child in
need of (sic) care and protection” as defined under Section 2(d) of the
Juvenile Justice (Care and Protection of Children) Act, 2000, [as suitably
modified by the Juvenile Justice (Care and Protection of Children) Act,
2015 (sic)] the said Police Officer or the Special Juvenile Police Unit
shall forthwith forward the child to the jurisdictional Child Welfare
Committee for providing care, protection, treatment and rehabilitation of
the child in accordance with law.
3. Whenever a registration of FIR is reported to the Special Court,
the Special Court shall make due enquiries from the investigating agency
as to compliance of the aforesaid requirements of law as stated in (1)
and (2) above and pass necessary orders to ensure compliance thereof
in accordance with law, if necessary.
4. Officer-in-Charge of the police station and the Investigating
Officer in the case including the Special Juvenile Police Unit shall ensure
that the identity of the victim is not disclosed in the course of investigation,
particularly at the time of recording statement of the victim under section
24 of the Act (which as far as practicable may be done at the residence
or a place of choice of the victim or that of his/her parents/custodian, as
the case may be), his/her examination before Magistrate under section
25 of the Act, forwarding of the child for emergency medical aid under
section 19(5) and/or medical examination under section 27 of the Act.
5. The Investigating Agency shall not disclose the identity of the
victim in any media and shall ensure that such identity is not disclosed in
any manner whatsoever except the express permission of the Special
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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 which is comprehensible to the victim and in
a decent and non-offensive manner.
7. In the event, the victim is abroad or is staying at a far off place
or due to supervening circumstances is unable to physically attend the
Court to record evidence, resort shall be taken for recording his/her
evidence by way of video conference.
8. The
identity of the victim particularly his/her name, parentage,
address or any other particulars that may reveal such identity shall not
be disclosed in the judgment delivered by the Special Court unless such
disclosure of identity is in the interest of the child.
9. The Special Court upon receipt of information as to commission
of any offence under the Act by registration of FIR shall on his own or
on the application of the victim make enquiry as to the immediate needs
of the child for relief or rehabilitation and upon giving an opportunity of
hearing to the State and other affected parties including the victim pass
appropriate order for interim compensation and/or rehabilitation of the
child. In conclusion of proceeding, whether the accused is convicted or
not, or in cases where the accused has not been traced or had absconded,
the Special Court being satisfied that the victim had suffered loss or
injury due to commission of the offence shall award just and reasonable
compensation in favour of the victim. The quantum of the compensation
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shall be fixed taking into consideration the loss and injury suffered by the
victim and other related factors as laid down in Rule 7(3) of the Protection
of Children from Sexual Offences Rules, 2012 and shall not be restricted
to the minimum amounts prescribed in the Victim Compensation Fund.
The interim/final compensation shall be paid either from the Victim
Compensation Fund or any other special scheme/fund established under
section 357A of the Code of Criminal Procedure, 1973 (sic) or any other
law for the time being in force through the State Legal Services Authorities
or the District Services Authority in whose hands the Fund is entrusted.
If the Court declines to pass interim or final compensation in the instant
case it shall record its reasons for not doing so. The interim compensation,
so paid, shall be adjusted with final compensation, if any, awarded by the
Special Court in conclusion of trial in terms of section 33(8) of the Act.
10. The Special Court shall ensure that the trial in cases under
POCSO is not unduly protracted and shall take all measures to conclude
the trial as expeditiously as possible preferably within a year from taking
cognizance of the offence without granting unreasonable adjournment
to the parties in terms of section 35(2) of the Act.
Divya Pandey
Petitions disposed of.