The nation mourns: The news report on horrendous rape and murder case states that the situation is being perceived as another ‘Nirbhaya‘, has sparked widespread national outrage and fury. The four accused were sent to judicial custody for 14 days on Saturday. Three cops were suspended on Saturday for a delay in registering an FIR in the case. Cyberabad police filed the remand report on Sunday, four days after she was found with her body burnt under a culvert on the national highway. Chief Minister K. Chandrasekhar Rao has ordered immediate constitution of a fast track court to try the accused in the rape and murder. The Chief Minister asked officials not to assign night duties to women.
| Accused means a person who has been blamed for wrongdoing; specifically, a person who has been subjected to actual restraints on liberty through an arrest or a person against whom a formal indictment/accusation or information has been returned. |
Names of Victims in rape cases and POSCO not to be put in the public domain: The Supreme Court of India have ruled that the names of victims of sexual assault and harassment should not be publicly disclosed. A bench comprising of Hon’ble Mr Justices Madan B Lokur and Hon’ble Mr Justice Deepak Gupta in Nipun Saxena vs. Union of India [W.P. (Civil) 565 of 2012] directed the following Nine Points Guidelines:
- No disclosure of the name and identification of the victim: 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.
(a) The victim is major: As far as Section 228A9(2)(b) of the Indian Penal Code 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.
(b) The victim is a minor: Coming to Section 228A (2) (c) IPC, the court was 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 subsection (2) of Section 228A IPC.
(c) Some examples of matters where her identity will have to be disclosed: These are when samples are taken from her body when a 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 the school etc.. However, in these cases also the police officers should move with circumspection and disclose as little of the identity of the 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 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. Regarding media, the court said they should refrain from talking to such a victim because every time the victim repeats the tale of misery, she again undergoes the trauma.
(d) In cases where 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 identity of the victim. If any such need should arise, then we direct that an application to authorise the 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. If any such need should arise, then we direct that an application to authorise the 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.
(e) As far as Section 228A(3) of the IPC is concerned, the apex court said it 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 cannot be disclosed. We are not elaborating and dealing with the issue of the publication in the press in greater detail since this issue is engaging our attention in Nivedita Jha’s case [Nivedita Jha vs State of Bihar SLP Civil 24978 of 2018] but it is clear that nobody can be permitted to violate Section 327(3) CrPC, the language of which is very clear and unambiguous. 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.
(f) 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, the footage is 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. The apex court, therefore, holds 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.
(g) The apex court is 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.
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.
(a) As we have held above, Section 228A IPC imposes a clear cut bar on the name or identity of the victim be 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 nondisclosure 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.
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 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.
Disha was born: In a reminder of the 2012 Delhi gang-rape case’s ‘Nirbhaya’, the Telangana police has given a young veterinarian who was allegedly raped and murdered by four men in Hyderabad last week the sobriquet ‘Disha’. The move comes as the police look to safeguard the confidentiality and rights of the victim’s family after her name and pictures were widely reported in the media and social media. However, more than concealing the deceased woman’s identity, officers expect the name Disha, meaning ‘direction’, to prompt women to seek immediate police help in such situations. “We also hope the word ‘Disha’ would serve as a guiding case cautioning our officers to promptly attend to a missing person complaint,” said a Cyberabad Police Commissionerate officer who didn’t wish to be named as reported in online news articles.
Victim Compensation Scheme: As part of the fund, the government set up a central victim compensation fund in 2015 under which a rape victim should receive a minimum of Rs 3 lakh. However, every state has its own compensation scheme, each providing a different amount in compensation to sexual violence survivors. The efficiency of the system and the waiting period for survivors are crucial parameters to be judged for understanding the success of the system in place.
| “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”. -Nipun Saxena Judgment. |
Some of the Statistics available on rape cases in India are:
| S.No | State/UT | Rape Cases (2015) | Rape Cases (2016) |
| 1 | Andhra Pradesh | 1027 | 994 |
| 2 | Arunachal Pradesh | 71 | 92 |
| 3 | Assam | 1733 | 1779 |
| 4 | Bihar | 1041 | 1008 |
| 5 | Chhattisgarh | 1560 | 1626 |
| 6 | Goa | 86 | 61 |
| 7 | Gujarat | 503 | 982 |
| 8 | Haryana | 1070 | 1187 |
| 9 | Himachal Pradesh | 244 | 252 |
| 10 | Jammu and Kashmir | 296 | 256 |
| 11 | Jharkhand | 1053 | 1109 |
| 12 | Karnataka | 589 | 1655 |
| 13 | Kerala | 1256 | 1656 |
| 14 | Madhya Pradesh | 4391 | 4882 |
| 15 | Maharashtra | 4144 | 4189 |
| 16 | Manipur | 46 | 55 |
| 17 | Meghalaya | 93 | 190 |
| 18 | Mizoram | 58 | 23 |
| 19 | Nagaland | 35 | 26 |
| 20 | Odisha | 2251 | 1983 |
| 21 | Punjab | 886 | 838 |
| 22 | Rajasthan | 3644 | 3656 |
| 23 | Sikkim | 5 | 92 |
| 24 | Tamil Nadu | 421 | 319 |
| 25 | Telangana | 1105 | 1278 |
| 26 | Tripura | 213 | 207 |
| 27 | Uttar Pradesh | 3025 | 4816 |
| 28 | Uttarakhand | 283 | 336 |
| 29 | West Bengal | 1199 | 1110 |
| 30 | Andaman and Nicobar Islands | 36 | 30 |
| 31 | Chandigarh | 72 | 68 |
| 32 | Dadra and Nagar Haveli | 8 | 14 |
| 33 | Daman and Diu | 5 | 12 |
| 34 | Delhi | 2199 | 2155 |
| 35 | Lakshadweep | 0 | 5 |
| 36 | Puducherry | 3 | 6 |
| Total | 34651 | 38947 |
| REMAND: “To send back (a prisoner or accused person) into custody as to await further proceedings”. When a person is taken into custody and produced before the court within 24 hours as per the law, the court remands the said person to either police custody or judicial custody until the trial. This person is now a remand prisoner. The implication is that such person is in safe custody so that investigation of the alleged crime could be carried out and the trial could be conducted at a future date as investigations could not be completed within twenty-four hours. |
Indian Law on Offence of Rape under IPC.
‘Section 375 of the IPC. A man is said to commit “rape” if he-—
- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of the body of such woman or makes her to do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates a willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’.
Punishment for rape.
Section 376 of the IPC.
- Whoever, except in the cases provided for in subsection (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
- Whoever,—
(a) being a police officer commits rape
(i) within the limits of the police station to which such police officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer’s custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant commits rape on a woman in such public servant’s custody or in the custody of a public servant subordinate to such public servant; or
(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under sixteen years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman commits rape on such woman; or
(l) commits rape on a woman suffering from mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.
Explanation.—For the purposes of this sub-section,—
a. “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any Jaw for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government!, or the State Government;
b.” hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;
c. “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861;
d. “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children.
Punishment for causing death or resulting in a persistent vegetative state of the victim.
376A. Whoever, commits an offence punishable under sub-section (l) or sub¬section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death.
Sexual intercourse by husband upon his wife during separation
376B. Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375.
Sexual intercourse by a person in authority.
376C. Whoever, being—
a. in a position of authority or in a 6duciary relationship; or
b. a public servant; or
c. superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women’s or children’s institution; or
d. on the management of a hospital or being on the staff of a hospital, abuses such position or 6duciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than 6ve years, but which may extend to ten years, and shall also be liable to fine.
Explanation l.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375.
Explanation 2. —For the purposes of this section, Explanation I to section 375 shall also be applicable.
Explanation 3.—”Superintendent”, in relation to a jail, remand home or other place of custody or a women’s or children’s institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.
Explanation 4.—The expressions “hospital” and “women’s or children’s institution” shall respectively have the same meaning as an Explanation to sub-section (2) of section 376.
| SINGLE EMERGENCY HELPLINE 112: Similar to the US and many other developed countries, India has launched a pan-India service of the single emergency helpline number 112‘ for immediate assistance services from police (100), fire (101), health (108) and women (1090). Apart from emergency response service, the government also launched the Investigation Tracking System for Sexual Offences (ITSSO) and the safe city implementation monitoring portal to improve the safe city for women. |
Gang rape.
376D. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.
Punishment for repeat offenders.
376E. Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 3760 and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.’.
| JUDICIAL CUSTODY: The process regarding the detention of a criminal is performed as follows; the police arrests the suspect after following a report or lead. The suspect is detained for investigation and then presented to the court. The judicial magistrate has three options, can post bail, send the accused back to police custody, or he stays under the protection of judicial custody. The difference between these two beings, police cannot interrogate the accused while in judicial custody unless the court permits. |
Conclusion
Women are the real architects of society. Growth of heinous crime against women is not only a matter of grave concern but also time for introspection legally and beyond by society.
The Indian law prior to the Nirbhaya Incident took into account only acts of penile-vaginal intercourse within the definition of rape and forcible acts of penetration of vagina, mouth, urethra or anus through the penis or an inanimate object did not fall within the definition of rape. The definition was expanded in the year 2013 to consider rape as any acts like penetration by penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of a woman or making her to do so with another person or applying of mouth to sexual organs without the consent or will of the woman constitutes the offence of rape. The section has also clarified that penetration means “penetration to any extent”, and lack of physical resistance is immaterial for constituting an offence.
The top court had, on July 9, 2018, dismissed the pleas filed by three of the four convicts in Nirbhaya case, seeking a review of its verdict upholding the death penalty awarded to them. The jail authorities had informed the Nirbhaya gangrape case convicts that they had exhausted all legal remedies and were only left with the provision of filing a mercy petition against the death sentence before the President of India. It was hereby informed that in case if prisoners do not file the mercy petition and if they wish to file the mercy petition against the capital sentence before the Hon’ble President of India, within seven days of the receipt of the notice through prison authorities, it will be presumed that they are not willing to file mercy petition in the case and the jail administration will initiate further necessary legal proceedings as per law,” the notification issued on October 29, 2019. One of the accused, Ram Singh, died in police custody from possible suicide on 11 March 2013 in the Tihar Jail. The juvenile who was was one of the accused was convicted of rape and murder and given the maximum sentence of three years’ imprisonment in a reform facility.
References
1.Legal Terms Used in Reception Order and their Relevance to Judicial Process- Nakkeerar Subramanian, Rajkumar Ramanathan,1 Venkatesh Madhan Kumar, Dhanabalan Kalingarayan Palayam Chellappan, and Jeyaprakash Ramasamy. [Definitions in Box items]
