16 Feb 2023 5:18 AM GMT
The Aurangabad bench of Bombay High Court has directed the investigation agencies and trial courts to ensure that the identity of a rape victim is not disclosed even in the charge sheet.A division bench of Justice Vibha Kankanwadi and Justice Abhay S. Waghwase noted that the principal seat at Bombay has directed that photos showing the victim should be filed by the accused under sealed...
The Aurangabad bench of Bombay High Court has directed the investigation agencies and trial courts to ensure that the identity of a rape victim is not disclosed even in the charge sheet.
A division bench of Justice Vibha Kankanwadi and Justice Abhay S. Waghwase noted that the principal seat at Bombay has directed that photos showing the victim should be filed by the accused under sealed envelope. It extended these directions to the investigation agencies and the court.
“We take those directions further and direct all the concerned agencies, who are dealing with the investigation of such crime that henceforth the photographs of such victims should be filed in sealed envelope before the concerned Courts. We may also say that failure to follow the directions may invite the action for the offence under Section 228-A of the Indian Penal Code. These directions are also to the concerned Courts where the charge-sheet is accepted. They should also see that such photographs are produced in sealed envelope before them and the identity of the victim is not disclosed in any manner,” said the court.
Section 228-A of the IPC prohibits disclosure of identity of the victim of offences under section 376 IPC, POCSO Act, etc.
The court stated that certain photos produced in the charge sheet show the victim at the spot of the incident and such material should not be openly added in the charge sheet.
“We do not say that such photographs should not be collected or should not be taken, but we expect that those photographs should not be openly added as part of charge-sheet,” it said.
The court observed that in its journey from the office of the investigating agency to the court, the charge sheet is handled by many persons and the identity of the victim is disclosed.
“The investigating agency has to be sensitive in the matter. If they want to produce such documents, then it should be put in a sealed envelope including in the copies of the charge-sheet also, so that the identity of the victim is not disclosed in any manner”, said the court.
The court noted that the Apex Court has given a number of judgements stressing that the identity of the victim in such cases should not be disclosed, however, such incidences are happening again and again.
The court was dealing with an appeal under Section 14-A(2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (Atrocities Act) challenging the rejection of bail by the Special Judge on the ground that bail is barred under Section 18 and 18-A.
The complainant alleged that she met the appellant on social media and he expressed his love to her. He promised to marry her and maintain her son and had sexual intercourse with her. He also threatened her when she became pregnant and caused her to get an abortion. Further, he knew that she is a member of a Scheduled Cast and abused her in the name of caste in March 2022. The appellant refused to marry her stating that he cannot marry a girl of lower caste, according to the complaint.
The appellant was booked for offences under Sections 376 (punishment for rape), 313, 323, 506 of the IPC and Section 3 (punishment for atrocities) of the Atrocities Act.
The court noted that the complainant categorically stated that she and the appellant started loving each other after she accepted his friend request. Therefore, there is no question of hurdle of caste.
“All these facts would show that the relationship appears to be consensual and when it is consensual, there is no question of hurdle of caste”.
The court noted that there is no evidence that she got abortion after receiving threats from the appellant in the charge sheet.
The complainant has not stated where the alleged abuses in the name of caste were given, the court said. Such abuses should be in public view to attract Sections 3(1)(r) and 3(1)(s) of the Atrocities Act but those ingredients are missing, it added. The court also noted that a witness heard the appellant abusing the complainant and quarrelling with her but didn't say that the abuses were in the name of cast.
The complainant did not lodge any complaint in March 2022 when the alleged abuse occurred and the FIR was registered in October 2022, the court observed. Thus, the trial court erred in dismissing the bail application on the basis of bar under Section 18 of the Atrocities Act, the court said.
The investigation is over and the charge sheet has been filed. Hence, the court granted bail to the appellant observing that physical custody of the accused is not necessary.
Case no. – Sajjan s/o Hirchand Gusinge v. State of Maharashtra
Case Title – Criminal Appeal No. 869 of 2022
Citation: 2023 LiveLaw (Bom) 102