In a fresh and significant development, the Kerala High Court has just recently on September 9, 2020 in a latest, landmark and extremely laudable judgment titled X vs State of Kerala in Case No. : Crl. MC No. 3463 of 2020 issued some future guidelines for maintaining rape victim’s anonymity in the matters instituted before it. Justice PB Suresh Kumar who authored this recent, remarkable and righteous judgment while considering a petition arising out of a bail order passed by POCSO Court had observed that in several matters instituted before the High Court the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings. This most condemnable and dangerous tendency has to be reined in and this is exactly what this brilliant, bold and balanced judgment seeks to do!
To start with, the ball is set rolling first and foremost in the introductory part as mentioned in para 1 which states that, “This is a proceedings challenging Annexure-4 order passed by the Special Court for Trial of Offences under the Protection of Children from Sexual Offences Act, Thalassery, in terms of which the sole accused in Crime No. 94 of 2020 of Panoor Police Station renumbered as Crime No. 33 of 2020 of CBCID, Kasaragode was enlarged on bail.”
While dwelling on the facts of the case, it is then enjoined upon in para 2 that, “The petitioner is the mother of the victim in the case. The victim is aged about 10 years. The second respondent who is the accused in the case is a teacher in the school where the victim is pursuing her studies. The accusation in the case is that the accused committed sexual assault on the victim girl on several occasions in between 15.01.2020 and 02.02.2020 at the bathroom of the school. The case was, therefore, registered for offences punishable under Sections 376(2)(f), 376AB and 354B of the Indian Penal Code (the IPC) and Sections 5(f), 5(l) and 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).”
Moving on, it is then illustrated in para 3 that, “The accused, on his arrest, moved the Special Court for bail on a few occasions and all the applications preferred by him in this regard have been dismissed. The accused, thereupon, moved this court for bail, and this court also declined bail to the accused in terms of Annexure – 3 order. Later, since the final report in the case has not been filed despite the accused being in custody for 90 days, the accused filed Crl.M.C.No.890 of 2020 before the Special Court for bail under Section 167(2) of the Code of Criminal Procedure (the Code). When the said application was pending, the final report in the case has been filed alleging commission of offences punishable under Sections 323 and 324 of the IPC and Sections 75 and 82 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Annexure – 6 is the final report. It is, however, stated in Annexure – 6 final report that the investigation in the case as regards the remaining offences is yet to be completed, and as and when the investigation is completed, supplemental final report would be filed in the matter. When the final report was filed, the accused filed Crl.M.C.No.1559 of 2020 in the pending proceedings, praying for orders to treat the proceedings as one instituted under Section 439 of the Code. In the meanwhile, the investigating officer in the case filed an application seeking permission of the court for conducting further investigation in the matter under Section 173(8) of the Code and the Special Court allowed the said application. The Special Court took the view that insofar as the investigation in the case has not been completed despite the accused being in custody for 90 days, the accused is entitled to bail, and accordingly he was enlarged on bail in terms of Annexure – 4 order. As noted, the petitioner is aggrieved by Annexure – 4 order.”
But the petitioner’s arguments failed to impress the Kerala High Court. The accused was found to be entitled to bail under Section 167(2) of the Code. The Criminal M.C. was found to be without merits and the same was accordingly dismissed!
Most significantly and most remarkably, the Kerala High Court in its final order without mincing any words goes on to observe that, “It is observed that in several matters instituted before this court where victim anonymity is to be maintained, the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings. It is also observed that though documents revealing the identity of the victim are produced in sealed covers in the light of the decision of the Apex Court in Nipun Saxena and another v. Union of India and others, (2019) 2 SCC 703, there is no system in place to maintain victim anonymity, once the sealed covers are opened by the court. In the case on hand, it is observed that the opened cover containing the documents were sent back to the section and brought back from the section to the court on the subsequent hearing dates. It is also observed that there is no system in place for disposal of the documents produced in sealed covers, after the final disposal of the case. Similarly, it is observed that the registry is insisting copies of the documents revealing the identity of the victims to be given to the opposite parties in the matter. There is no system in place to maintain victim anonymity in such situations. Needless to say, the procedure in place to maintain victim anonymity is against the spirit of Section 228A of the Indian Penal Code, Sections 24(5), 33(7) and 37 of the Protection of Children from Sexual Offences Act, 2012, and the decision of the Apex Court in Nipun Saxena. In the circumstances, the following directions are issued for future guidelines for maintaining victim anonymity in the matters instituted before this court:
1. The criteria for deciding the identity of the victim shall include the identity of the family of the victim, the school/college of the victim, the place of work of the victim, the relatives of the victim, the neighbourhood of the victim and all other information from which the identity of the victim would be revealed.
2. In all proceedings instituted by or on behalf of the victim and against them, documents in which the identity of the victim is disclosed, either required in terms of the rules of the court or produced by the parties concerned to substantiate their case, shall be insisted to be filed in a sealed cover.
3. The registry shall designate an officer for the proper custody of documents produced in, sealed covers in cases where victim anonymity is to be maintained and shall provide to that officer necessary infrastructure for keeping custody of the documents. Such officer shall be bound by the highest standards of confidentiality.
4. After the matter is numbered, registry shall forward the documents received in sealed covers in a self-sealing bag/envelope of appropriate size preferably one having a provision for tamper proof seal as well, or in other similar tamper proof bag/envelope, after affixing on it a label indicating the particulars of the case under the signature of the Filing Scrutiny Officer concerned to the designated officer for custody and that officer shall ensure that the documents are made available to the court as and when the matters are listed for hearing.
5. If the self-sealing bag/envelope in which the documents are kept is opened by the court for perusal of the documents, after the purposes of the court, the same shall be kept in a fresh self-sealing bag/envelope and returned to the designated officer, after affixing on the same a new label indicating the particulars of the case under the signature of the Court Officer concerned. If the self-sealing bag/envelope is opened subsequently by the court, the same procedure directed herein-above shall be repeated.
6. The parties producing documents disclosing the identity of the victims need not have to keep or give copies of the same to the opposite parties and they need only refer to such documents in their pleadings.
7. If the lawyers appearing against the victims require/need to peruse the documents in the sealed covers, they shall peruse the same with the permission of the court and if they are permitted by the court to peruse the documents, the documents shall be preserved in the same manner indicated in the preceding directions.
8. These directions shall be in force until replaced by the Honourable the Chief Justice by appropriate practice instructions.
To sum up, the key point of this well-articulated, well-reasoned and well-drafted judgment are the various guidelines that have been just enumerated above that are imperative for maintaining the rape victim anonymity in cases filed before it. All these guidelines must be followed sincerely and strictly by all the concerned courts in letter and spirit. It brooks just no argument and no delay anymore now!
Sanjeev Sirohi