# NIPUN SAXENA & ANR v. UNION OF INDIA & ORS

- **Citation:** [2018] 14 S.C.R. 755
- **Court:** Supreme Court of India
- **Decided:** 2018-12-11
- **Bench:** Madan B. Lokur, Deepak Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nipun-saxena-anr-v-union-of-india-ors-32717
- **Pages:** 36

## Headnote

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
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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

## Text

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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
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,
NIPUN SAXENA & ANR. v. UNION OF INDIA & ORS.
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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
NIPUN SAXENA & ANR. v. UNION OF INDIA & ORS.
[DEEPAK GUPTA, J.]
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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. Subsection (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.
NIPUN SAXENA & ANR. v. UNION OF INDIA & ORS.
[DEEPAK GUPTA, J.]
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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
NIPUN SAXENA & ANR. v. UNION OF INDIA & ORS.
[DEEPAK GUPTA, J.]
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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.