A two-judge bench comprising of Justices Madan B Lokur and Deepak Gupta, in the matter of Nipun Saxena v. Union of India laid down guidelines regarding the disclosure of a victim’s identity in cases of sexual harassment.
In the judgment, the bench acknowledged the social stigma associated with a victim who is often question as if she is the accused. The Court also referred to Section 228A of the Indian Penal Code that prohibits disclosing the identity of a victim against whom an offence under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E is alleged or found to have been committed. However, the meaning of “identity of the victim” has not been explained. The court emphasised on the need to have child friendly courts while dealing with POCSO cases.
The Court expressed its full agreement with the Guidelines laid down by the Calcutta High Court in the Bijoy v. State of West Bengal which are as follows:
- Police officer or Special Juvenile Police Unit receiving complaint as to commission or likelihood of commission of an offence under the Act shall register it in terms of Section 19 and furnish a copy to the child and/or the parents and inform them about the right to legal aid and representation. Where the child is unable to arrange for legal representation, refer the child to District Legal Services Authority. Failing to file an FIR is an offence punishable under Sections 4, 6, 7, 10 and 12 of POCSO and 166B of the IPC.
- The police officer, on registration of an FIR, shall forward the child for immediate medical aid and medical examination under Section 27 of the Act and ensure the recording of the victim’s statement before the Magistrate under Section 25. If the Police Officer or Special Juvenile Police Unit feels that the child is a “child in need of special care and protection”, then it shall forward the child to the jurisdictional Child Welfare Committee for providing care, protection, treatment and rehabilitation.
- When a registration of FIR is reported to the Special Court, it shall make due enquiries from the investigating agency and pass necessary orders.
- Officer in-charge of the police station and the Investigating Officer shall ensure that the identity of the victim is not disclosed in the course of investigation, at the time of recording the victim’s statement, his/her examination before the Magistrate, forwarding the child for medical aid and examination.
- The Investigating Agency shall not disclose the identity of the victim in media and ensure that the identity is not disclosed in any manner except with the express permission of the Special Court in the interest of justice. Any person, including a police officer, committing breach of this provision shall be prosecuted under Section 23(4) of the Act.
- Trial of the case shall be held in camera as per Section 37 and the evidence shall be recorded without delay. The evidence of victim shall be recorded in a child friendly atmosphere in the presence of parents or guardians, by giving frequent breaks and repetitive, aggressive or harrasive questioning shall not be permitted. The Court may also call upon the defence to submit its questioning for cross-examination in writing which will be put to the victim in a language which is decent, non-offensive and comprehensive to the victim.
- Where the victim is abroad, staying at a far off place or unable to attend the Court to record the evidence, the same shall be done by way of video conference.
- The identity of the victim shall not be disclosed in the Judgment of the Special Court unless the same is done in the interest of the child.
- The Special Court on receipt of information of commission of an offence under the Act shall on his own or on the application of the victim make enquiry as to the immediate needs of the child for relief and rehabilitation and upon giving opportunity to the State, affected parties and the victim, pass appropriate interim order. In the conclusion proceeding, irrespective of the whether the accused is convicted or not, the Court being satisfied that the victim had suffered, shall award just and reasonable compensation. The quantum of compensation shall be fixed taking into consideration the loss and injury suffered and related factors as mentioned in Rule 7(3) of POCSO Rules, 2012. The compensation shall be paid either from Victim Compensation Fund or any other special scheme/ fund.
- The Special Court shall ensure that the trial in POCSO cases is not unduly protracted and take measures to conclude expeditiously, preferably within one year from taking cognisance.
In addition to these, the Court laid down the following guidelines:
- No person can print or publish the name of the victim or even in a remote manner disclose any facts that can lead to the identification of the victim.
- Where the victim is dead or of unsound mind, the identity cannot be disclosed even if the next kin authorises, unless there are circumstances that justify such disclosure along with the authorisation of the competent authority i.e., the Sessions Judge.
- FIRs for offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E and the POCSO shall not be put in public domain.
- Where the victim files an appeal under Section 372 CrPC, the victim need not disclose his/her identity.
- The police officials should keep all documents with the name of the victim in a sealed cover and replace them with identical documents in which the name of the victim is removed.
- All the authorities to whom the name of the victim is disclosed are also bound to not disclose the identity in any manner except the report which shall be sent in a sealed cover to the investigating agency or the court.
- An application by the next of kin to disclose the identity of the victim, who is dead or of unsound mind, under Section 228A(2)(c) shall be made to the Sessions Judge until the Government, under Section 228A(1)(c) lays down criteria for identifying such social welfare institution or organisation.
- In cases of victims under POCSO, the disclosure of their identity is permissible only by the Special Judge in the interest of the child.
- All States/ Union Territories must set up at least one ‘one stop centre’ in every district within one year.