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"Justice To 'Rape'Victims: SC Takes Suo Motu Case To Assess The Working Of System In Sexual Offences [Read Order]

Prabhati Nayak Mishra
18 Dec 2019 11:09 AM GMT
Justice To RapeVictims: SC Takes Suo Motu Case To Assess The Working Of System In Sexual Offences [Read Order]
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Being concerned over the growing anger and agitation by the public over delay in justice in the cases of rape and sexual offences and to ensure speedy justices to the victims, the Supreme Court on Wednesday registered a suo motu petition and sought status report from Centre through Home Secretary, all states and Union Territories (UT) through Chief Secretaries and DGPs with regard...

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Being concerned over the growing anger and agitation by the public over delay in justice in the cases of rape and sexual offences and to ensure speedy justices to the victims, the Supreme Court on Wednesday registered a suo motu petition and sought status report from Centre through Home Secretary, all states and Union Territories (UT) through Chief Secretaries and DGPs  with regard to investigations into rape cases, medical examination of the victim and also speedy trial of such cases .

A bench comprising Chief Justice S A Bobde, Justice B R Gavai and Justice Surya Kant said post Nirbhaya incident (December 12) brought many amendments into the criminal law, still, the statistics revealed that desired results could not be achieved.

"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 duty holders 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."

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. 

The bench referred to the National Crime Records Bureau's 2017 statistics, according to which- a total of 32,559 cases of rape were registered in India.

The court appointed Senior Advocate Sidharth Luthra as Amicus Curiea to assist the court. The matter is posted for February 7.

"As per the mandate under Section 173 (1A) Cr.P.C. , 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," as per the order.

Supreme Court has asked the  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?

The bench also sought the implementation of guidelines laid down in the Lalita Kumari v. Government of U.P., (2014). The police is dutybound to register the offence based upon the information given by the victim/informant in case of cognizable offence.

Recording of 161 Statement

The bench sought status report over recording of victim's statement under Section 161 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 4 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?

The status report also sought regarding recording of victim's statement:

(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?

In addition, the court recorded to the Ministry of Health and Family Welfare, Government of India's "Guidelines & Protocols: Medicolegal care for survivors/victims of sexual violence" and also the Ministry of Women and Child Development's Medical Kit for examination of the victim and the accused in cases of rape.

The Union Government and the 7 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.

Citing this court's observation in the case -Lillu alias Rajesh and Anr. v. State of Haryana, (2013) 14, the bench said " two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity."

The Court also called 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-Vaginal 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?

(7) whether lady medical practitioners, if mandated, are available at all district and sub-divisional headquarters to draw up the medical examination report of the victim?

On Forensic Examination

(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 10 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.?

On Recording of Statement of Victims

(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?

On Speedy Trial

(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?

(5) whether sufficient number of special Courts have been established to deal exclusively with the cases of rape and other sexual offences?

On Witness Protection

(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.?

Rehabilitation of Victims

(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?

(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?

The Bench has directed the Secretary General, Supreme Court of India to 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. 

Read Order

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