Supreme Court: In a bid to make criminal justice system responsive in cases relating to sexual assaults, a 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ has sought 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.
Taking note of the fact that 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, the Court noticed that still the desired results were not achieved and that 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. It said,
“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.”
Here are some of the most important information sought by the Court:
Registration of FIR by woman police officer
- whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?
- 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?
Failure of a public servant to record any information of sexual assault offences
- whether any case has been registered under the Section 166A of IPC against any public servant?
- 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?
Medical treatment and examination of the victim
- whether any advisory or guidelines have been issued by the authorities to all the hospitals and medical centres in this regard?
- 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?
- 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?
- 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?
- 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?
- whether requisite Medico-forensic kit are available with all the hospitals/health centres run by the Government or by local authorities?
“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.”
Completion of Investigation
- 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?
Trial before a woman judge
- whether trial of cases relating to rape are being conducted by Courts presided over by a woman?
- whether sufficient number of lady judges are available to preside over the Courts dealing with sexual offences and rape?
- whether all courts holding trial of cases relating to offence of rape have requisite infrastructure and are conducting in camera trial?
- 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?
Victim and witness protection
- whether any policy of victim/witness protection in the cases relating to rape is framed and implemented?
- whether police protection is being provided to the victim during investigation and trial of the offence?
- 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.?
“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.”
Utilisation of Nirbhaya Fund
In the year 2013, a separate fund namely Nirbhaya Fund for projects of women safety to support initiatives by government and NGOs was created. The Court called for the status of utilization of the Nirbhaya Fund by Central or State Government(s).
Senior Advocate Siddharth Luthra will assist the Court as Amicus Curiae in the matter and the matter will next be taken up on 07.02.2020.
[In re: Assessment of the Criminal Justice System in response to Sexual Offences, 2019 SCC OnLine SC 1654, order dated 18.12.2019]
