In Re Assessment Of The Criminal … vs Versus on 18 December, 2019


Supreme Court of India

In Re Assessment Of The Criminal … vs Versus on 18 December, 2019

Author: Hon’Ble The Justice

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                                    IN THE SUPREME COURT OF INDIA
                                   CRIMINAL ORIGINAL JURISDICTION


                                       SMW (CRL.) No(s).04 OF 2019




                IN RE : ASSESSMENT OF THE CRIMINAL
                JUSTICE SYSTEM IN RESPONSE TO
                SEXUAL OFFENCES                                             Petitioner (s)


                                                     VERSUS
                                                                            Respondent (s)




                                                 O R D E R

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
Signature Not Verified

Digitally signed by
SANJAY KUMAR
Date: 2019.12.18
14:27:33 IST
has taken so long to reach finality. In fact, it is said
Reason:

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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
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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
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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?

6. By the Amendment Act of 2013, a new provision of

Section 166A made the failure of a public servant to record

any information of such offences, as prescribed, under sub-

Section 1 of Section 154 of the Cr.P.C., a punishable

offence, prescribing both rigorous imprisonment and fine

for the guilty.

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether any case has been registered under the
Section 166A of IPC against any public servant?
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(2) whether there is any mechanism in place to
complain about the non-recording of information
by the officer giving cause to offence under
Section 166A with any other institution/office,
other than the concerned police station?

7. Medical treatment and examination of the victim is a

very important aspect not only for the immediate relief to

the victim but also provides intrinsic evidences for the

trial. Amendments in this regard have been inserted by the

Amendment Acts of 2013 and 2018, whereby the newly

introduced Section 357C of Cr.P.C. has sought to fix

liability on medical institutions, both public or private

to provide medical treatment free of cost to the victims of

such offences as prescribed, together with a duty to inform

the police of such incident. Failure to comply with the

above provision has also been made an offence punishable

under Section 166B of IPC.

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether any advisory or guidelines have been

issued by the authorities to all the hospitals

and medical centres in this regard?

(2) whether any case has been registered against any

person under Section 166B of IPC?

8. The manner in which the medical report of the victim

is prepared is also a matter of concern. The Amendment Act
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of 2013 has inserted a new provision, i.e. Section 164A in

this regard, which provides for the manner of medical

examination as well as the guidelines for preparation of

medical report. Other than the above information, many a

times valuable information in consonance with the

definition of rape as amended by the Act of 2013 are not

supplied.

9. Also, vide the Amendment Act of 2013, Section 53A was

inserted in the Evidence Act, 1872. It provides that the

evidence of character of the victim and of such person’s

previous sexual experience with any persons shall not be

relevant on the issue of such consent or the quality of

consent. The effect of above provision is that previous

sexual experience and in effect the habituation to sexual

intercourse is now irrelevant for the purpose medical

examination. Still, we come across the medical opinion

such as “the victim is habitual of sexual intercourse” and

the opinion suggesting possibility of consent on the basis

of her previous sexual exposure.

10. The Ministry of Health and Family Welfare, Government

of India had prepared “Guidelines & Protocols: Medico-

legal care for survivors/victims of sexual violence”.

11. The Ministry of Women and Child Development has

designed a Medical Kit for examination of the victim and

the accused in cases of rape. The Union Government and the
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State Government have not provided this medical kit to all

the Primary Health Centers or Community Health Centers.

This Medico Forensic Kit is essential for collection of

Medical/DNA evidence.

12. Further, Per-Vaginum examination commonly referred to

as ‘Two-finger test’ has been held to be of no consequence

and violative of the dignity of woman. In the case of

Lillu alias Rajesh and Anr. v. State of Haryana, (2013)

14 SCC 643 it was observed as follows:-

“In view of International Covenant on
Economic, Social, and Cultural Rights
1966; United Nations Declaration of Basic
Principles of Justice for Victims of
Crime and Abuse of Power 1985, rape
survivors are entitled to legal recourse
that does not re-traumatize them or
violate their physical or mental
integrity and dignity. They are also
entitled to medical procedures conducted
in a manner that respects their right to
consent. Medical procedures should not be
carried out in a manner that constitutes
cruel, inhuman, or degrading treatment
and health should be of paramount
consideration while dealing with gender-
based violence. The State is under an
obligation to make such services
available to survivors of sexual
violence. Proper measures should be taken
to ensure their safety and there should
be no arbitrary or unlawful interference
with his privacy.

Thus, in view of the above,
undoubtedly, the two-finger test and its
interpretation violates the right of rape
survivors to privacy, physical and mental
integrity and dignity.”
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Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether the Medical Opinion in the cases relating

to rape and similar offences is being given in

compliance with the mandate of Section 164A of

Cr.P.C.?

(2) whether the Medical Opinion in the cases relating

to rape and similar offences is being given in

tune with definition of rape under Section 375 of

IPC as it stands today?

(3) whether the states have adopted the Guidelines &

Protocols of The Ministry of Health and Family

Welfare, Government of India or have they

prepared their own Guidelines & Protocols?

(4) whether requisite Medico-forensic kit are

available with all the hospitals/health centres

run by the Government or by local authorities?

(5) whether the medical experts have done away with

the Per-Vaginum examination commonly referred to

as ‘Two-finger test’ and whether any directions

have been issued by the states in this regard?

(6) whether medical experts have done away with the

practice of giving opinion on the previous sexual

experience of the victim or any directions have

been issued by the states in this regard?
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(7) whether lady medical practioners, if mandated,

are available at all district and sub-divisional

headquarters to draw up the medical examination

report of the victim?

13. Forensic examination and report play an important role

during the investigation as well as trial for linking the

culprit with the crime. With the advancement of the DNA

science and its accuracy, the sampling for the purpose of

Forensic examination and expeditious reports after due

examination are vital to the just adjudication of the case.

The sampling for the purpose of DNA test as well other

forensic tests like forensic odontology is essential in

cases relating to rape.

14. In relation to the examination of the accused, Section

53A of Cr.P.C. provides for timely examination and guidance

for preparation of medical report.

Thus, we consider it appropriate to call for status

report with regard to the following: –

(1) whether there is any Standard Operating Procedure

(SOP) or Protocol for taking samples for Forensic

DNA, Forensic odontology and other forensics for

Medical Practitioners?

(2) whether there are adequate number of equipped

Forensic Laboratories at least one at every
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Division Level to conduct forensic DNA and

Forensic odontology analysis regionally?

(3) subject to availability, whether Central

Government has notified sufficient number of

Government scientific expert other than already

specified under Section 293 of Cr.P.C.?

15. Section 173 (1A) Cr.P.C. provides that the

investigation in relation to an offence under Section 376,

376A, 376AB, 376B, 376C, 376D, 376DA, 376Db or 376 E of the

Indian Penal Code (45 of 1860) shall be completed within

two months from the date on which the information was

recorded by the police officer in charge of the Police

Station.

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether police is completing the investigation and

submitting the final report within a period of two

months from the date of recording of information

of the offence and if no, reasons for delay?

(2) whether sufficient number of women police officers

are available to conduct investigation into the

offences relating to rape and other sexual

offences?

16. Sub-Section (5A) of Section 164, Cr.P.C. provides for

recording of statement of the victim by the Court. Other
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than recording of statements under Section 164, for the

purpose of recording of statements during the trial,

Section 119 of Evidence Act provides for assistance of an

interpreter or a special educator in recording the

statement of the witness unable to speak but capable to

give evidence in any other manner. It further provides

that such statement shall be video graphed.

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether the police is taking the victim for

recording of the statements as soon as the

commission of the offence is brought to the

notice of police?

(2) whether the Magistrate Courts or the trial courts

have the availability of the interpreter or

special educator in each Districts?

(3) whether the Magistrate Courts or the trial Courts

have the facility of videography of the

statements and depository of the same in the

Courts?

17. Section 26 clause (a)(iii) of Cr.P.C. provides for

trial of such offences to be conducted by a Court presided

over by a woman judge, as far as practicable. Further,

Second proviso to sub-Section 327(2) of Cr.P.C. also

mandates that in camera trial shall be conducted, as far as
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practicable, by a woman Judge or Magistrate. It must be

noted that the insertion of the above proviso has a very

important object and the rider of “as far as practicable”

cannot be used to overcome the mandate in ordinary manner.

18. The need for speedy trial of the cases relating to

offence of rape has been emphasized again and again this

Court. The proviso to sub-Section (1) of Section 309

mandates that the inquiry of trial shall, as far as

possible, be completed within a period of two months from

the date of filing of the charge-sheet.

Thus, we consider it appropriate to call for status

report with regard to the following: –

(1) whether trial of cases relating to rape are being

conducted by Courts presided over by a woman?

(2) whether sufficient number of lady judges are

available to preside over the Courts dealing with

sexual offences and rape?

(3) whether all courts holding trial of cases

relating to offence of rape have requisite

infrastructure and are conducting in camera

trial?

(4) whether the trial relating to cases of rape is

being completed within a period of two months

from the date of filing of charge-sheet, if not,

the reasons for the delay?

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(5) whether sufficient number of special Courts have

been established to deal exclusively with the

cases of rape and other sexual offences?

19. Under Section 230 of Cr.P.C., a trial program is

generally prepared on the application of the prosecution.

This Court in the case of State of Kerala v. Rasheed, AIR

2019 SC 721 has held as followings:-

“The following practice guidelines should
be followed by trial courts in the
conduct of a criminal trial, as far as
possible:

i. a detailed case-calendar must be
prepared at the commencement of the trial
after framing of charges;

ii. the case-calendar must specify the
dates on which the examination-in-chief
and cross-examination (if required) of
witnesses is to be conducted;

iii. the case-calendar must keep in view
the proposed order of production of
witnesses by parties, expected time
required for examination of witnesses,
availability of witnesses at the relevant
time, and convenience of both the
prosecution as well as the defence, as
far as possible;

iv. testimony of witnesses deposing on
the same subject matter must be
proximately scheduled;

v. the request for deferral under Section
231(2)
of the Cr.P.C. must be preferably
made before the preparation of the case
calendar;

vi. the grant for request of deferral
must be premised on sufficient reasons
justifying the deferral of cross-
examination of each witness, or set of
witnesses;

            vii.   while       granting  a   request         for
            deferral of        cross-examination of          any
                                    14



witness, the trial courts must specify a
proximate date for the cross-examination
of that witness, after the examination-
in-chief of such witness(es) as has been
prayed for;

viii. the case-calendar, prepared in
accordance with the above guidelines,
must be followed strictly, unless
departure from the same becomes
absolutely necessary;

ix. in cases where trial courts have
granted a request for deferral, necessary
steps must be taken to safeguard
witnesses from being subjected to undue
influence, harassment or intimidation.”

Thus, we consider it appropriate to call for status

report with regard to the following: –

(1) whether case-calendar as envisaged in the

Rasheed case is being prepared by the Trial

Courts keeping in mind the time line of two

months mandated by Section 309 of Cr.P.C.?

(2) whether the attendance of the witnesses is being

ensured by the Prosecution to ensure the

examination of witnesses on the fixed dates?

(3) whether any guidelines have been issued by Bar

Councils or Associations urging the Advocates to

assist the Court in completion of trial within

the stipulated period?

(4) whether special exclusive permanent trial courts

have been created in the state to deal with cases

relating to rape and sexual assaults?
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(5) whether any High Court has constituted Special

Bench for expeditious hearing of appeal in these

cases?

20. The protection of witness during the investigation and

trial is essential in cases of this sensitive nature. Many

a times the accused live in proximity of the victim. The

possibility of tampering with evidence and pressurizing the

witness affects fair trial.

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether any policy of victim/witness protection

in the cases relating to rape is framed and

implemented?

(2) whether police protection is being provided to

the victim during investigation and trial of the

offence?

(3) whether there are special waiting room in the

Court premises for victim/witnesses of cases

relating to offence rape?

(4) whether the trial Courts have taken appropriate

measures to ensure that victim woman is not

confronted by the accused during the trial as

mandated by Section 273 Cr.P.C.?

21. Section 357A(2) Cr.P.C. provides for award of

compensation to the victims. The District Legal Service
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Authority or the State Legal Service Authority are bound to

decide as to the quantum of compensation to the victim on

the recommendation of the Court. By the order of this Court

in W.P. (C) 565/2012 titled Nipun Saxena v. Union of India,

the National Legal Services Authority, New Delhi had

prepared a Compensation Scheme for Women Victims/Survivors

of Sexual Assault/other Crimes – 2018. This scheme has been

circulated among all states for necessary actions. The

Scheme comprehensively provides for the rehabilitation and

compensation for the victims of Rape.

22. As the victim goes through a mental trauma and

requires immediate counselling, legal aid and medical,

social and in some cases, economic rehabilitation.

Thus, we consider it appropriate to call for status

report with regard to the following: –

(1) whether Courts are recommending the District

Legal Service Authority or the State Legal

Service Authority for compensation in appropriate

cases?

(2) whether the amount of interim or final

compensation is being provided to the victims in

time bound manner?

(3) whether the above-mentioned Scheme of 2018 or

suitably amended Scheme, has been implemented by

the states for rehabilitation of victims of rape?
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(4) whether the SLSA or NLSA has formulated any

scheme for social, medical and economic

rehabilitation of the victim?

(5) whether any state has prepared a policy with

regard to the counselling of the victim and

medical, social and in some cases, economic

rehabilitation of the victim?

(6) whether there are any counselling/rehabilitation

centres in existence for the victims of rape?

23. In the 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 the

fund been achieved.

Thus, we consider it appropriate to call for status

report with regard to the following: –

(1) Utilization of the Nirbhaya Fund by Central or

State Government(s) for the purposes envisioned?

24. Let the matter be registered as Suo Motu Writ Petition

Criminal with the caption “Assessment of the Criminal

Justice System in response to Sexual Offences”.

25. In order to collate all the information and status and

provide a holistic view of implementation of provisions of

law and to suggest measures for making the criminal justice

system more efficacious and responsive towards the offence
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of rape and other sexual offences, we request Shri Sidharth

Luthra, Senior Advocate to assist the Court as Amicus

Curiae in the matter.

26. The learned Solicitor General is requested to extend

all co-operation to the Amicus Curiae in this regard.

27. The Secretary General, Supreme Court of India shall

also extend co-operation in respect of calling for

information and status reports from the Chief Secretary and

the Director General of Police of all the States, the

Registrar General of all the High Courts and other

functionaries, as may be required.

Let the matter be listed on 07.02.2020.

……………………………………CJI
[ S.A. BOBDE ]

………………………………………J.

[ B.R. GAVAI ]

………………………………………J.

[ SURYA KANT ]

New Delhi
December 18, 2019



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