SMRUTI TUKARAM BADADE versus STATE OF MAHARASHTRA & ANR
[2022] 1 S.C.R. 443, Supreme Court of India, 2022
Outcome: Disposed off
Segment: Body
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SMRUTI TUKARAM BADADE
v.
STATE OF MAHARASHTRA & ANR
(Miscellaneous Application No. 1852 of 2019)
JANUARY 11, 2022
[DR. DHANANJAYA Y CHANDRACHUD AND
SURYA KANT, JJ.]
Guidelines/Norms/Directions: Guidelines – Issuance of – As
regards recording evidence of vulnerable witnesses in criminal
matters – Directions issued to facilitate the implementation of
directions issued in State of Maharashtra v Bandu @ Daulat’s case
for setting up ‘special centres for examination of vulnerable
witnesses in criminal cases – Definition of “vulnerable witness”
contained in Clause 3(a) of the ‘Guidelines for recording evidence
of vulnerable witnesses in criminal matters’ of the High Court of
Delhi widened – Along with child witnesses who have attained the
age of 18 years, to include age and gender neutral victims of sexual
assault, witnesses suffering from “mental illness”, any witness deemed
to have a threat perception, any speech or hearing impaired
individual or a person suffering from any other disability – Issuance
of direction to the High Courts to adopt and notify a Vulnerable
Witnesses Deposition Centres Scheme within the stipulated period –
To devise and implement an all India VWDC training programme,a
Committee to be constituted– Issuance of directions to all High Courts
and concerned role assignees to facilitate conducting of training
programmes, to set up an in-house permanent VWDC Committee
and one permanent VWDC in every District Court or
additional
Sessions Court establishments – Furthermore, NALSA and SLSAs to
provide an effective interface for the scheme for training –
Constitution of India – Art. 142 – Criminal law – Witnesses.
Sakshi v Union of India (2004) 5 SCC 518 : [2004] (2)
Suppl. SCR 723; State of Punjab v Gurmit Singh (1996)
2 SCC 384 : [1996] (1) SCR 532; State of Maharashtra
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v Bandu @ Daulat (2018) 11 SCC 163; Mahender
Chawla v Union of India (2019) 14 SCC 615 : [2018]
(14) SCR 627 – relied on.
Case Law Reference
[2004] (2) Suppl. SCR 723
relied on
Para 1, 5(c)
[1996] (1) SCR 532
relied on
Para 1
(2018) 11 SCC 163
relied on
Para 2, 4, 5(ii)
[2018] (14) SCR 627
relied on
Para 5(e)
CRIMINAL APPELLATE JURISDICTION: Miscellaneous
Application No. 1852 of 2019 in Criminal Appeal No. 1101 of 2019.
From the Judgment and Order dated 20.03.2019 of the High Court
of  Judicature at Bombay in Criminal Application No.165 of 2017.
Ms. Vibha Datta Makhija (AC), Sr. Adv., Ms. Jaikriti S. Jadeja,
Praveen Gaur, Kashish Aneja, Advs. for the Appellant.
Brijender Chahar, Sr. Adv., Gopal Jha, Gautam Singh, Shreyash
Bhardwaj, Ms. Shirin Khajuria, Sandeep Sudhakar Deshmukh, Ms.
Deeplaxmi Subhash Matwankar, Arjun Garg, Aakash Nandolia, Ms.
Sagun Srivastava, Sanjai Kr. Pathak, Ms. Shashi Pathak, Vivek Gupta,
Ms. Jyoti Chahar, Karan Chahar, Ms. Asmita Singh, Gautam Narayan,
Ashok Mathur, V. N. Raghupathy, Md. Apzal Ansari, R. Neduraman,
Ms. Radhika Gautam, Jagjit Singh Chabbra, Ms. Uttara Babbar, Manan
Bansal, Nikhil Goel, Ms. Naveen Goel, Vinay Mathew, Rahul Chitnis,
Sachin Patil, Aaditya A. Pande, Geo Joseph, Ms. Shwetal Shepal, Sibo
Sankar Mishra, Niranjan Sahu, Umakant Mishra, Advs. for the
Respondents.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
1. The need for and importance of
setting up facilities which cater
to the need for creating a safe and barrier free environment for recording
the evidence of vulnerable witnesses has engaged the attention of this
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Court over two decades. In Sakshi v Union of India1, this Court issued
directions in addition to those which were contained in the decision in
State of Punjab v Gurmit Singh2. The relevant extract from the decision
in Sakshi (supra) reads thus:
“34. […]
(1)
The provisions of sub-section (2) of Section 327 CrPC shall,
in addition to the offences mentioned in the sub-section,
also apply in inquiry or trial of offences under Sections 354
and 377 IPC.
(2)
In holding trial of child sex abuse or rape:
(i)
a screen or some such arrangements may be made
where the victim or witnesses (who may be equally
vulnerable like the victim) do not see the body or
face of the accused;
(ii)
the questions put in cross-examination on behalf of
the accused, insofar as they relate directly to the
incident, should be given in writing to the presiding
officer of the court who may put them to the victim
or witnesses in a language which is clear and is not
embarrassing;
(iii)
the victim of child abuse or rape, while giving
testimony in court, should be allowed sufficient breaks
as and when required.”
2. More recently, in State of Maharashtra v Bandu @ Daulat3,
directions were issued by this Court for setting up “special centres for
examination of vulnerable witnesses” in criminal cases so as to facilitate
a conducive environment for recording the statements of vulnerable
witnesses. This Court dwelt on the guidelines which have been issued
by the High Court of Delhi for recording the
evidence of vulnerable
witnesses in criminal matters and noted that special centres have been
set up in Delhi for that purpose. While observing that the direction of the
1 (2004) 5 SCC 518
2 (1996) 2 SCC 384
3 (2018) 11 SCC 163
SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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High Court of Delhi for setting up special centres for vulnerable witnesses
is consistent with the earlier decisions of this Court and supplement the
principles which have been laid down, this Court issued the following
directions:
“12. […] all High Courts can adopt such guidelines if the same
have not yet been adopted with such modifications as may be
deemed necessary. Setting up of one centre for vulnerable
witnesses may be perhaps required almost in every district in the
country. All the High Courts may take appropriate steps in this
direction in due course in phases. At least two such centres in the
jurisdiction of each High Court may be set up within three months
from today. Thereafter, more such centres may be set up as per
decision of the High Courts.”
3. The fairness of the process of trial as well as the pursuit of
substantive justice are determined in a significant measure by the manner
in which statements of vulnerable witnesses are recorded. The dignity
of person, which is an intrinsic element of Article 21 of the Constitution,
cannot be left to the vagaries of insensitive procedures and a hostile
environment. Access to justice mandates that positive steps have to be
adopted to create a barrier free environment. These barriers are not
only those which exist within the physical spaces of conventional courts
but those which operate on the minds and personality of vulnerable
witnesses. There is a pressing
need to facilitate the salutary purpose
underlying the creation of a barrier free environment where depositions
can be recorded freely without constraining limitations, both physical
and emotional. This requires not just the creation of infrastructure but
sensitizing all stakeholders.
4. This Court issued notice to all the High Courts in pursuance of
which they have appeared through Counsel. Based on the material which
has been placed before the Court, Ms Vibha Datta Makhija, amicus
curiae, has prepared a tabulated statement of the position of infrastructure
in various High Courts as of 25 October 2021. A copy of the tabulated
statement is annexed as a broad indicator at Annexure ‘A’ to this order.
Based on the deliberations which have taken place during the course of
proceedings in the Court, the suggestions which have been proposed by
the amicus curiae and the responses of some of the Counsel who have
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appeared on behalf of the High Courts, the following directions are issued
under Article 142 of the Constitution in furtherance of the earlier decisions
of this Court. These are intended to facilitate the implementation of the
directions which were rendered on 24 October 2017 in Bandu (supra)
and earlier in other decisions.
5. The directions are enumerated below:
(i)
The definition of “vulnerable witness” contained in Clause
3(a) of the ‘Guidelines for recording evidence of vulnerable
witnesses in criminal matters’4 of the High Court of Delhi
shall not be limited only to child witnesses who have attained
the age of 18 years and should be expanded to include,
inter alia, the following categories of vulnerable witnesses:
(a)
Age neutral victims of sexual assault read with
Sections 273 and 327 of the Code of Criminal
Procedure 1973 and Section 354 of the Indian Penal
Code 18605;
(b)
Gender neutral victims of sexual assault read with
Section 2(d) of the Protection of Children from
Sexual Offences Act 2012;
(c)
Age and gender neutral victims of sexual assault
under Section 377 of the Indian Penal Code 1860
read with paragraph 34(1) of the decision in Sakshi
(supra);
(d)
Witnesses suffering from “mental illness” as defined
under Section 2(s) of the Mental Healthcare Act 2017
read with Section 118 of the Indian Evidence Act
1872;
(e)
Any witness deemed to have a threat perception under
the Witness Protection Scheme 2018 of the Union
Government as approved by
this Court in Mahender
Chawla v Union of India6;
4 “VWDC Scheme” available at
h t t p : / /d e l h i h i gh co u rt . n i c . i n / wri t e r ea d d a t a/ u p l o a d / n o t i fi c a t i o n /
notificationfile_lcwcd2x4.pdf.
5 “IPC”
6 (2019) 14 SCC 615
SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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(f)
Any speech or hearing impaired individual or a person
suffering from any other disability who is considered
to be a vulnerable witness by the competent court;
and
(g)
Any other witness deemed to be vulnerable by the
concerned court.
(ii)
The High Courts shall adopt and notify a Vulnerable
Witnesses Deposition Centres7 Scheme within a period of
two months from the date of this order unless a scheme is
already notified. The High Courts which already have
existing VWDC Schemes in place may consider making
suitable modifications in conformity with the guidelines
which are indicated in the present order. In formulating the
VWDC Scheme, the High Courts shall have due regard to
the scheme which has been formulated by the High Court
of Delhi, which has been duly approved in the judgment of
this Court in Bandu (supra);
(iii)
Every High Court should set up an in-house permanent
VWDC Committee for continuously supervising the
implementation of the present directions and making a
periodic assessment of the number of VWDCs required in
each district proportionate to the time required for recording
evidence of vulnerable witnesses and to coordinate the
conduct of periodic training programmes;
(iv)
Every High Court is requested to make an estimation of
costs towards manpower and infrastructure required to set
up at least one permanent VWDC in every establishment
of the District Court (or additional Sessions Court
establishments)
and estimate the optimal number of
VWDCs required for the entire State within a period of
three months;
(v)
Having due regard to the importance of conducting periodic
training programmes for manning and managing the VWDCs
and sensitizing all stake holders, including judicial officers,
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members of the Bar and the staff of the court establishment,
we constitute a Committee chaired by Justice Ms Gita
Mittal, former Chief Justice of the Jammu and Kashmir
High Court. The Committee shall devise and implement an
All India VWDC Training Programme, besides engaging
with the High Courts on the creation of infrastructure for
VWDCs. The initial tenure of the Chairperson shall be for
a period of two years. All High Courts or concerned role
assignees shall facilitate and give full cooperation in
conducting training programmes in terms of the module
which may be prepared by the Chairperson;
(vi)
Upon the estimation of costs prepared by the VWDC
Committee of each High Court, the State Government shall
expeditiously sanction the requisite funds within a period of
three months from the date of the submission of the proposal
or the end of the financial year, whichever is earlier, and
disburse the funds to the High Court in accordance with
the project plan. The State Government shall nominate a
nodal officer of the Finance Department who shall be
associated ex officio with the work of the VWDC
Committee of the High Court, to facilitate the
implementation of the proposal submitted by the High Court
in terms of these directions;
(vii)
The High Courts shall ensure that at least one permanent
VWDC is set up in every District Court establishment (or
additional Sessions Court establishments) within a period
of four months. The Registrars General of the High
Courts
shall file compliance reports before this Court;
(viii) In many States, ADR Centres have been set up by the
High Courts in close proximity to the court establishments
in the districts. Where such ADR Centres are in place, the
High Courts would be at liberty to ensure that the VWDC
is made available within the premises of the ADR Centre
SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
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so as to secure a safe, conducive and barrier free
environment for recording the depositions of vulnerable
witnesses;
(ix)
The National Legal Services Authority8 as well as the State
Legal Services Authorities9 have a vital stake and role,
particularly in devising and implementing sensitization and
training programmes. The Chairperson of the Committee
appointed by this Court is requested to engage with NALSA
and SLSAs (subject to the directions which may be issued
by the Hon’ble Executive Chairperson of NALSA) so as
to provide an effective interface for implementing the
scheme for training;
(x)
The Hon’ble Chief Justices of the High Courts would be at
liberty to take all appropriate steps either on the
administrative side or on the judicial side in furtherance of
the present directions and to monitor compliance on a
periodic basis;
(xi)
The Chief Justice of the High Court of Delhi is requested
to make available a work space/room for the office of the
VDWC Committee Training Centre and requisite staff,
preferably personnel who have previously assisted in the
development and implementation of the Training Modules
of the Delhi High Court and to designate a Coordinator of
the programme in consultation with the Chairperson.
Appropriate secretarial and logistical support staff and
equipment may be made available to the Committee on a
reasonable remuneration as fixed by the Chairperson. The
expenses in that regard, including
the honorarium payable
to the Chairperson shall be defrayed by the Ministry of
Women and Child Development to the Director of the Delhi
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Judicial Academy. The Chairperson may fix a reasonable
honorarium for the work assigned to her under the terms of
this order. In the event that any further directions are
necessary, the Chairperson may seek them before this Court
and any communication in that regard shall be placed for
further directions; and
(xii)
The Ministry of Women and Child Development of the Union
Government shall designate a nodal officer for coordinating
the implementation of these directions and for providing all
logistical support to Justice Ms Gita Mittal, the Chairperson
of the Committee appointed by this Court. This would
include the payment of honorarium to the Chairperson in
terms as fixed by the Chairperson and meeting the expenses,
including those towards engaging domain experts for training
programmes. The Union Ministry of Women and Child
Development and all Ministries of Women and Child
Development in the States shall coordinate with the
Chairperson and extend logistical support. The High Courts
shall, in consultation with the Chairperson of the Committee,
enlist experts in the field to facilitate proper training and
development of all stake holders.
6. A copy of this order shall be forwarded by the Secretary General
of this Court to the Secretary, Ministry of Women and Child Development
of the Union Government and to the Secretaries of the Ministries of
Women and Child Development of all the State Governments for
compliance. A copy of this order shall also be emailed
to Justice Ms Gita
Mittal for information and also to the Registrars General of all the High
Courts for implementation by the High Courts.
7. We conclude by recording our appreciation of the dedicated
effort of the amicus curiae.
8. The Miscellaneous Application is accordingly disposed of.
9. Pending application, if any, stands disposed of.
SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
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SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
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SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
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SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
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SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
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SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
[DR. DHANANJAYA Y CHANDRACHUD, J.]

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SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
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SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA
[DR. DHANANJAYA Y CHANDRACHUD, J.]
Nidhi Jain
Miscellaneous Application disposed of.