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SUPREME COURT OF INDIA
S.A. BOBDE, CJI., B.R. GAVAI, SURYA KANT, JJ.
In Re : Assessment of The Criminal Justice System In Response To Sexual Offences
SMW (CRL.) Nos.04 of 2019
Decided On : 18-12-2019
(A) Crime against Women – Malady and Remedy – Ever increasing menace of rape cases in India – Delay in such matters has, in recent times, created agitation, anxiety and unrest in minds of people – Nirbhaya case is not an isolated case where it has taken so long to reach finality – Police is duty bound to register offence based upon information given by victim/informant in case of cognizable offence – In addition to this, statements of victim under Section 161 are required to be recorded by a woman police officer or any woman officer – Medical treatment and examination of victim is a very important aspect not only for immediate relief to victim but also provides intrinsic evidences for trial – Manner in which medical report of victim is prepared is also a matter of concern – Previous sexual experience and in effect habituation to sexual intercourse is now irrelevant for the purpose of medical examination – Forensic examination and report play important role during investigation as well as trial for linking culprit with crime – With advancement of DNA science and its accuracy, sampling for the purpose of Forensic examination and expeditious reports after due examination are vital to just adjudication of case – Sampling for the purpose of DNA test as well other forensic tests like forensic odontology is essential in cases relating to rape. [Criminal Procedure Code, 1973 – Section 166A; Evidence Act, 1872 – Section 53A] (Paras 2, 5, 7, 8, 9 and 13)
(B) Indian Penal Code, 1860 – Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376Db or 376 E – Criminal Procedure Code, 1973 – Section 357-A – Rape cases in India – Need for speedy trial of cases relating to offence of rape has been emphasized again and again this Court – Protection of witness during investigation and trial is essential in cases of this sensitive nature – Many a times accused live in proximity of victim – Possibility of tampering with evidence and pressurizing witness affects fair trial – Section 357A(2) Cr.P.C. provides for award of compensation to victims – District Legal Service Authority or State Legal Service Authority are bound to decide as to quantum of compensation to victim on recommendation of Court – Matter to be registered as Suo Motu Writ Petition Criminal with caption Assessment of Criminal Justice System in response to Sexual Offences – In order to collate all information and status and provide a holistic view of implementation of provisions of law and to suggest measures for making criminal justice system more efficacious and responsive towards offence of rape and other sexual offences, a Senior Advocate requested to assist Court as Amicus Curiae in the matter. (Paras 18, 20, 21, 24 and 25)
Facts of the case:
Sexual violence. Post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial. Still, statistics would reveal that desired results could not be achieved. As per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India.
Findings of Court:
In year 2013, a separate fund namely Nirbhaya Fund for projects of women safety to support initiatives by government and NGOs was created, and it is important to inform ourselves how far has the purpose of setting up fund been achieved.
Result : Directions issued. Matter listed for next hearing.
Certainly. Based on the provided legal document, the key points are as follows:
Police are mandated to register an offence of sexual violence, such as rape, based on information provided by the victim or informant in cases of cognizable offences (!) .
The statement of the victim under Section 161 of the Criminal Procedure Code must be recorded by a woman police officer or any woman officer, emphasizing sensitivity and protection of the victim’s dignity (!) .
It is essential for the medical treatment and examination of the victim to be conducted promptly, as it provides crucial evidence for investigation and trial. The manner of medical reporting, including forensic sampling such as DNA testing, must follow scientific and procedural standards, with no relevance given to previous sexual experience of the victim (!) (!) (!) .
The investigation process, especially in cases of rape, should be swift, ideally completed within two months from the recording of the offence, with adequate numbers of trained women police officers available for investigation (!) (!) (!) .
Recording victim statements should be done as soon as possible after the offence, utilizing videography and other modern methods to ensure accuracy and protect the victim’s privacy (!) (!) .
Trials for sexual offences should be conducted expeditiously, preferably by a woman judge, and in-camera, with a structured case-calendar to ensure timely proceedings within two months of charge-sheet filing (!) (!) (!) (!) (!) (!) .
Adequate infrastructure, including specialized courts and trained personnel, should be in place to handle cases of sexual violence efficiently, with particular attention to witness protection and victim safety (!) (!) (!) .
The legal framework provides for the protection of witnesses and victims through measures such as victim/witness protection policies, police protection, and facilities like waiting rooms in courts, to prevent tampering or intimidation (!) (!) (!) .
Compensation schemes are in place to support victims, with the legal authorities responsible for recommending and ensuring timely disbursement of interim or final compensation, as well as rehabilitation and counseling services (!) (!) (!) (!) (!) (!) (!) .
The utilization of dedicated funds, such as the Nirbhaya Fund, for projects aimed at women’s safety and victim support should be monitored and evaluated for effectiveness (!) (!) .
The overall system emphasizes the importance of a sensitive, prompt, and scientifically supported approach to handling sexual offence cases, ensuring the dignity, safety, and rights of victims are protected throughout the process (!) (!) (!) (!) .
Please let me know if you need further elaboration or specific guidance on any of these points.
ORDER :
1. Post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial. Still, the statistics would reveal that desired results could not be achieved. As per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India.
2. The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people. The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.
3. We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.
4. The criminal law is set into motion by registration of the FIR. Section 154 of the Cr.P.C. provides about the information in cognizable cases and in effect registration of First Information Reports. The first Proviso to the sub-Section (1) of Section 154 inserted by the Amendment Act of 2013 and subsequently amended by the Amendment Act of 2018, provides for registration of First Information Report in cases of rape and sexual offences by a woman police officer or any woman officer. It is further provided that if the victim is temporarily or permanently mentally or physically disabled, the first information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such persons choice, in the presence of a special educator or an interpreter and the recording of such information may be videographed. It is also provided that the police officer shall get the statement of such person recorded by a Judicial Magistrate under Section 164, as soon as possible.
5. As law laid down in the case of Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, the police is dutybound to register the offence based upon the information given by the victim/informant in case of cognizable offence.
In addition to this, the statements of the victim under Section 161 are required to be recorded by a woman police officer or any woman officer.
Thus, we consider it appropriate to call for status report with regard to the following: -
(1) whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?
(2) In case, an information relating to offence of rape received at a Police Station, reveals that the place of commission of the offence is beyond its territorial jurisdiction, whether in such cases FIR without crime number are being recorded?
(3) whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?
(4) whether all the District Police Units have the details of special educator or an interpreter in case of a mentally or physically disabled victim?
(5) whether the police department of states or union territories have issued any circulars to make provision of videography of the recording of statements and depository of the same?
(6) whether any state has published guidelines in the shape of Standard Operating Procedure (SOP) to be followed for responding after receipt of the information relating to case of rape and similar offences?
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