India - OHRH

INDIA
INTRODUCTION
1.
Legal system: With the exception of certain legal proceedings ( inter alia public
interest litigation petitions, 1 commissions of inquiry, 2 certain procedures relating to
income tax assessment 3 and claim petitions in case of traffic accidents made under
the Motor Vehicles Act 1988 4), India follows an adversarial system of law. 5 While
India is heavily influenced by the common law of England, t he tremendous
diversity of Indian society posed numerous obstacles for th e implementation of
jury trials in India. 6 In spite of this, the practice of jury trials was maintained in
India from the seventeenth century till the landmark Nanavati case 7 triggered their
abolition through the Code of Criminal Procedure 1973 (CrPC). 8 The highest law of
the land is the Constitution, and all statutes are subject to it. The doctrine of
precedent is followed such that the orders of the Supreme Court are binding on all
the courts below it while the orders of any particular High Court are binding on all
the courts below it, within its territorial jurisdiction.
2.
Definition of victim: According to s 2(wa) of the Code of Criminal Procedure
1973, ‘victim’ means a person who has suffered any loss or injury caused by reason
of the act or omission for which the accused person has been cha rged and the
expression includes his or her guardian or legal heir. 9
In the public interest litigation (PIL) system which is used to enforce fundamental constitutional rights, the litigant
is expected to work in collaboration with the State even though the PIL is filed against the State. This is so that the
most effective solution can be found and efficiently implemented, and also since there is a huge asymmetry of
resources between the State and the victim: Avani Mehta Sood, ‘Gender Justice though Public Interest Litigation:
Case Studies from India’ (2008) 41 Vanderbilt Journal of Transnational Law 833, 841; Parvez Hassan and Azim
Azfar, ‘Securing Environmental Rights through Public Interest Litigation in South Asia’ (2004) 22 Virginia
Environmental Law Journal 215, 228; SP Sathe, ‘Judicial Activism: the Indian Experience ’ (2001) 6 Washington
University Journal of Law and Policy 29, 75; Vijayshri Sripati, ‘Human Rights in India- Fifty Years after
Independence’ (1997) 26 Denver Journal of International Law and Policy 93, 130.
2 Jayalakshmi Jaitly v Union of India 99 (2002) DLT 448 [17].
3 The preliminary procedures in cases where assessment of income tax is being reopened is regarded as an
inquisitorial proceeding : Teekoy Rubbers v Commissioner of Income Tax [1990] 181 ITR 387 (Ker) [7].
4 Ram Rati v Devender Singh (Delhi High Court).
5 Erin B Pulice, ‘The Right to Silence at Risk: Neuroscience-based Lie Detection in the United Kingdom, India and
the United States’ (2010) 42 George Washington International Law Review 865, 880.
6 AG Pullan, ‘Trial by Jury in India’ (1946) 28 Journal of Comparative Legislation and International Law 104, 104.
7 KM Nanavati v Maharashtra AIR 1962 SC 605.
8
Bibek Debroy, ‘Nanavati and jury trials’ The Indian Express (21 December 2009)
<archive.indianexpress.com/news/nanavati-and-jury-trials/557344/> accessed 18 March 2015
9 Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011 s 3(j) defines
‘victim’ as
1
3.
Complaining to the police: Information for cognisable offences (offences for
which a police officer can make arrests without a warrant) can be given orally or in
writing, but ultimately must be reduced to writing and signed by the complainant. 10
A copy thereof is given free of cost to the complainant. 11 In case of non-cognisable
offences, a record of the complaint is made but the informant is then referred to a
Magistrate 12 and the offence cannot be investigated without an order from the
Magistrate. 13
4.
In an alternate procedure, complaints can also be made directly to the Magistrate,
in which case she will examine the complainant and witnesses present, and reduce
the substance of the complaint into writing. 14 If there are insufficient grounds for
proceeding, the Magistrate may dismiss the complaint, but must record reasons for
doing so. 15 Magistrates are further empowered to take cognisance of an offence
upon receipt of information that an offence has been committed, from any ‘person
other than a police officer, or upon his own knowledge, that such offence has been
committed.’ 16
5.
There is no separate procedure in case of international crimes. 17
6.
Private prosecution: The general rule is that prosecution should be by a Public
Prosecutor. 18 However, under S 24(8) of the CrPC, the court may permit the victim
to engage an advocate to assist the prosec utor. Further, a Magistrate trying a case
may permit the prosecution to be conducted by a person other than the Advocate
General, Government Advocate, Public Prosecutor or Assistant Public Prosecutor,
as long as this person is not a police officer below th e rank of Inspector, or a
police officer who was involved in the investigation of the case. 19 Such a person can
any person belonging to a group as defined under this Act, who has suffered physical, mental,
psychological or monetary harm or harm to his or her property as a result of the commission of any
offence under this Act, and includes his or her relatives, legal guardian and legal heirs, wherever
appropriate.
This report does not cover this Bill in any detail, however, it contained many progressive victim-friendly measures at
every stage of the criminal justice process.
10 Code of Criminal Procedure 1973 (Act No 2 of 1974) s 154(1) (India) (CrPC).
11 Ibid, s 154(2).
12 Ibid, s 155(1).
13 Ibid, s 155(2).
14 Ibid, s 200.
15 Ibid, s 203.
16 Ibid, s 190.
17 The only statute relevant to this seems to be the Geneva Conventions Act 1960 (Act No 6 of 1960), but that does
not provide any particular procedure for complaining to the police.
18 CrPC, ss 225 (for sessions cases) and 301.
19 Ibid, s 302(1).
conduct the prosecution personally, or through a pleader. 20 While no further
guidelines about the cases in which this permission is to be granted, case law
indicates that such discretion is exercised in favour of the petitioner if the ‘cause of
justice would be served better by granting such permission.’ 21 A private prosecution
can be initiated only for cases that come up before a Magistrate’s court. 22 But for
criminal cases in general, there is also the option of appointing a subsidiary
prosecutor who acts under the directions of the Public Prosecutor or the Assistant
Public Prosecutor and who may, with the permission of the Court, submit written
arguments once evidence is closed in a case. 23 This has been done in the past, where
the petitioner in that case felt that the police was conducting an improper
investigation. 24 In case of both private and subsidiary prosecutors, the State has no
obligation to bear the costs. Again, there is no particular conditions in place for
international crimes.
7.
Other important terms:
A cognizable offence refers to one in which a police
officer may arrest without a warrant. 25 A ‘court of session’ or sessions court is the
highest criminal court in a sessions division (usually co -terminus with a state). 26 A
warrant case refers to a case dealing with an offence punishable by death, life
imprisonment, or imprisonment exceeding two years; all other cases are referred to
as summons cases.
QUESTION 1: IN LIGHT OF RELEVANT LEGISLATION, CASE LAW
AND POLICY DOCUMENTS, DOES YOUR JURISDICTION PROVIDE
FOR VICTIM PARTICIPATION IN CRIMINAL PROCEEDINGS FOR
ALL ALLEGED VICTIMS IN ANY OF THE FOLLOWING FORMS?
8.
Failure of the Police: Police officers are arguably under a duty to investigate
complaints, since it is their statutory duty to ‘detect and bring offences to justice.’ 27
Upon conviction before a Magistrate, t he neglect of this duty, its wilful breach, or
neglect, can result in a penalty extending to three months of pay and/or,
Ibid, s 302(2).
Anu Gayathri v K Karthikeyan (Madras High Court) [8].
22 Magistrates can only deal with offences that are punishable by imprisonment of up to seven years and/or fine.
23 CrPC, s 301(2).
24 Ibid.
25 Ibid, s 2(c).
26 Ibid, s 7 CrPC read with ss 9,10, 15, 19, 23.
27 Police Act 1861 (Act No 5 of 1861) s 23 (India) (Police Act); Dissenting opinion of Mudholkar, J in Delhi
Administrtion v Ram Singh AIR 1962 SC 63.
20
21
imprisonment for up to three months. 28 Further, there are some controls that are
found within the police: the Police Act 1861 entitles d esignated officers to dismiss,
suspend or demote subordinate officers whom they consider remiss, negligent or
unfit for the discharge of police duties. Additionally, they may
award anyone of the following punishments to any police-officer of the subordinate ranks who
shall discharge his duty in a careless or negligent manner, or who by any act of his own, shall
render himself unfit for the discharge thereof, namely:(a) fine of any amount not exceeding one month's pay;
(b) confinement to quarters for a term not exceeding fifteen days with or without punishmentdrill, extra guard, fatigue or other duty;
(c) deprivation of good-conduct pay;
(d) removal from any office of distinction or special emolument.
9.
The period of limitation for all actions under the Police Act 1861 is 3 months. 29
10.
The importance of efficient and impartial investigations has been pointed out by
the Supreme Court, 30 and it ordered 31 the setting up a State Security Commission (to
ensure that police investigations are not influenced by the Go vernment) in every
state, as well as a Police Complaints Authority (to look into complaints of
misconduct by the people against police officers) in every district. 32 However, a
study conducted by the Commonwealth Human Rights Initiative found that only 14
states 33 in the country had implemented statutory changes in response to the above
mentioned Supreme Court judgment (though not all of them were operational, and
there was no uniformity on whether the establishment was at the State level of
district level), and in five union territories the setting up of a Police Complaint
authority had been done through government orders. 34 There remain frequent
reports of the urgent need to set up an independent authorities to examine
complaints against the police. 35
11.
In case of cognizable offences if a police officer refuses to file the complaint, the
complainant can send the substance of her complaint to the Superintendent of
Police Act, s 29.
Ibid, s 42.
30 Vineet Narain v Union of India (1998) 1 SCC 226 [10].
31 Prakash Singh v Union of India (2006) 8 SCC 1 [14].
32 Each state (province) in the country is split into many districts.
33 India has a total of 29 states.
34 Devika Prasad, ‘Police Complaints Authorities in India- A Rapid Study’ (Commonwealth Human Rights Initiative,
December
2012)
<www.humanrightsinitiative.org/publications/police/PCA_Rapid_Study_December_2012_FINAL.pdf> accessed
18 March 2015.
35 ‘‘No Need for Constituting Police Complaint Authority in TN'’ The New Indian Express (Chennai, 6 January 2015)
<www.newindianexpress.com/states/tamil_nadu/%E2%80%98No-Need-for-Constituting-Police-ComplaintAuthority-in-TN%E2%80%99/2015/01/06/article2605784.ece> accessed 18 March 2015; J Santhosh, ‘It's Time to
Set up Police Complaints Authority: Experts’ The New Indian Express (Chennai, 13 January 2014)
<www.newindianexpress.com/cities/chennai/Its-Time-to-Set-up-Police-Complaints-AuthorityExperts/2014/01/13/article1997287.ece> accessed 18 March 2015.
28
29
Police, who, on being satisfied that the information discloses the commission of a
cognisable offence, can either conduct the investigation himself, or direct the
investigation to be conducted by someone else. 36
12.
These legal provisions should be viewed in the light of the fact that taking recourse
to the police to complain against the police might not be the m ost effective
solution: for instance, of the nearly 7000 complaints made against police officer in
Maharashtra in 2012, only 185 were sent to trial, with only 25 completed trials and
5 resulting convictions 37 (about .07% of the complaints originally made). Sanction
of the relevant government is required before a p ublic officer can be prosecuted. 38
13.
Notably, the Prevention of Communal and Targeted Violence (Access to Justice
and Reparations) Bill 2011 (Communal Violence Bill) proposes having a broader
offence of dereliction of duty to cover, among other things, refusal to register
complaints, as well as improper or negligent investigation in case of offences under
the Bill. 39 This is meant to be punishable by imprisonment (of two to five years) as
well as a fine. 40 In case of refusal to file complaint, a direction to do so shall be
passed. 41
14.
Passive Rights: In case the police officer in charge of a station finds that there
aren’t sufficient grounds for undertaking an investigation, she is obliged to notify
the informant of the same, 42 though the informant may not necessarily be the AV.
Otherwise there seem to be no passive rights available to the AV.
a)
Are there provisions for support services (including counselling, use of
interpreter, interim compensation and other measures) at the time of complaint?
15.
During investigation, while a police officer is generally entitled to require
attendance of witnesses at the police station, however certain witnesses (including
AVs) cannot be required to attend any place apart from the ir residence: a man
under 15 or over 65 years of age, a woman, or a mentally or physically disabled
person. 43
CrPC, s 154(3).
Maja
Daruwala,
‘Perpetuating
Immunity’
Indian
Express
(24
February
<indianexpress.com/article/opinion/columns/perpetuating-impunity/> accessed 18 March 2015.
38 CrPC, s 197.
39 Communal Violence Bill, s 13.
40 Ibid, s 120 Commnal Violence Bill.
41 Ibid, s 72(5).
42 CrPC, s 157(1).
43 Ibid, s 160.
36
37
2014)
16.
Interim Compensation: In 2009, the District Legal Services Authority was
empowered under the CrPC to grant awards of interim (on the recommendation of
the police) and final (or order of the trial court) compensation to victims and AVs
in all criminal cases. 44 This was to supplement the extant, more limited power of
criminal courts to award compensation. 45 The Supreme Court has held in the past
that it is mandatory, in every criminal case, for a court to consider whether
compensation should be awarded. 46 This application of mind is to be demonstrated
by recording reasons for granting or refusing compensation. 47
b)
17.
Are there provisions for witness protection during the investigation?
Suggested measures of police protection for witnesses have not been given
statutory recognition—save to a limited extent in the case of whistleblowers in
corruption cases 48--though the last Home Ministry said it was ‘mulling’ over t he
introduction of such a programme. 49 As yet, there is no witness protection
programme in India 50 even though both the Law Commission of India 51 and the
Supreme Court 52 have pointed out the urgent need to pass measures to address this
lacuna. In fact, the Delhi High Court has gone to the extent of laying down
guidelines for an adhoc witness protection scheme of sorts, ordering that protection
should be granted to witnesses who seek it, based on a risk assessment to be
carried out by the police. 53 They also simultaneously ordered the Delhi Government
to come up with an adequate executive scheme to address this issue. 54 This scheme
was drafted and presented to the Court in November 2013, and was meant to be
laid before the Cabinet after the formatio n of the next government since elections
for the Legislative Assembly of Delhi has already been notified at the time. 55 There
are no reports to indicate that any headway has been made.
Ibid, s 357A.
Ibid, s 357.
46 Ankush Shivaji Gaikwad v Maharashtra (2013) 6 SCC 770 [50].
47 Ibid [62].
48 The Whistleblower Protection Act 2011 (Act No 17 of 2014), ch V.
49 ‘Govt mulling for a witness protection programme’ Hindustan Times (New Delhi, 26 May 2013)
<www.hindustantimes.com/india-news/newdelhi/govt-mulling-for-a-witness-protection-programme/article11066218.aspx> accessed 18 March 2015.
50 Warisha Farasat, ‘A plea for witness protection laws’ The Hindu (23 July 2013) <www.thehindu.com/opinion/oped/a-plea-for-witness-protection-laws/article4944925.ece> accessed 18 March 2015
51 Law Commission of India, 198th Report on Witness Identity Protection and Witness Protection Programmes (2006) 8.
52 Zahira Habibullah Sheikh v Gujarat (2006) 3 SCC 374 [38].
53 State v Sidhartha Vashisht 201 (2013) DLT 657 [113].
54 Ibid [113].
55 Sushmita Dasgupta, ‘Final version of “Delhi Witness Protection Scheme” presented before Delhi High Court’
(Vakilno1.com)
<www.vakilno1.com/legal-news/final-version-delhi-witness-protection-scheme-presented-delhihigh-court.html> accessed 18 March 2015.
44
45
c)
18.
Are the alleged victims consulted while deciding whether to prosecute?
When there is sufficient evidence to prosecute a case, the police shall forward the
accused to the Magistrate entitled to try the accused, 56 along with a report about the
investigation. 57 Ultimately, whether it is through the police, complaint, or other
information received by the Magistrate, it is left to her discretion to take
cognisance of an offence. 58 The investigation report must be forwarded to the
relevant Magistrate whether or not the police determines that an offence is made
out. 59 There is no way to challenge the findings of the report of the police. The
decision of the Magistrate on whether or not to take cognisance of the offence is
also non-appealable, since the right to appeal rests only in those cases which are
expressly provided in the CrPC, 60 and this does not include Section 190 of the
CrPC..
19.
Withdrawal of a complaint is allowed during trial in case of summons cases if the
Magistrate is satisfied that there are sufficient grounds to do so. 61 The withdrawal
can be as against all or some of the accused. 62 However, withdrawal from
prosecution can be done any way by the Public Prosecutor or Assistant Public
Prosecutor in charge of the case, though in some cases the permission of the
Government needs to be sought. 63 For compoundable offences, the offe nce can
only be compounded by the AV, though for specified offences the permission of
the Court additionally needs to be sought. 64 When such the AV is under 18 years
old or is an idiot or lunatic, any person competent to contract on his behalf can
compound the offence. 65 When the AV is dead, her legal representatives are allowed
to compound the offence. 66
20.
There is no scope for the AV influencing the scope of the charge in Chapter XVII
of the CrPC which deals with the framing of charges. The charges are framed by
the court; 67 alterations and additions to the charge can be made only by the court
CrPC, s 170.
Ibid, s 172.
58 Ibid, s 190.
59 Ibid, s 173(2)(i)(d).
60 Ibid, s 372.
61 Ibid, s 257.
62 Kamal Kishore Biyani v Shyam Sunder 2014 (2) Crimes 632 (AP) [10].
63 CrPC, s 321.
64 Ibid, ss 320(1) and 320(2).
65 Ibid, s 320(4)(a).
66 Ibid, s 320(4)(b).
67 Ibid, ss 227 (Sessions cases), 240 and 246 (warrant cases).
56
57
trying the offence. 68 The alteration of charges must not act to the prejudice of the
accused. 69
21.
The complaint (again, not necessarily the AV) has the right to be informed ab out
police investigation report as is forwarded to the Magistrate. 70 No other passive
rights vest in the AV.
d)
22.
What are the rights available to the alleged victims in relation to the trial?
The investigation into an offence lies completely with the police, 71 and the AV can
thus only influence the investigation to the extent that the police rely on her
evidence.
23.
Pre-trial detention-While usually it is up to the police officer concerned to make
arrests, 72 any private person (including the AV) can arrest or cause to be arrested
someone who commits a non-bailable, cognisable offence in her presence and shall
make such person over to a police officer without any delay or cause him to be
taken to the nearest police station. 73 If this is done, the police will have to
determine if the detainee can be lawfully arrested. 74 In cases where the private
person making such an arrest is murdered, the fact that they were performing a
public duty is regarded as an aggravating factor at the time of sentencing. 75
24.
Rights and duties during trial-AVs have the right to a private or subsidiary
prosecution, as discussed above. In general, there is nothing to bar the AV from
being called as a witness. 76 However, in case of a warrant case, if the offence is
compoundable and non-cognisable, the Magistrate may discharge the accused if the
complainant is absent any time before the framing of the charge. 77 If the
complainant is an incorporeal person (such as a company), the corporeal persons
connected with it or representing it must be present in co urt. 78 In a summons case,
the Magistrate may discharge the accused if the complainant is absent on the day
Ibid, s 216 of the CrPC.
CBI v Karimullah Osan Khan AIR 2014 SC 2234 [14].
70 CrPC, s 173(2)(ii).
71 Ibid, ch XII.
72 Ibid, s 41.
73 Ibid, s 43(1).
74 Ibid, s 43(2).
75 Ramnaresh v Chhatisgarh (2012) 4 SCC 257 [76]
76 CrPC, ss 231 (dealing with evidence for prosecution in a sessions case), 233(entering upon defence in a sessions
case), 242 and 244 (evidence for prosecution in a warrant case), 243 and 247 (evidence for defence in a warrant
case), 254 and 255 (evidence for defence in a summons case).
77 Ibid, s 249.
78 National Small Industries Corporation Limited v State (2009) 1 SCC 407 [12].
68
69
appointed for the accused’s appearance, unless the Magistrate decides that the
appearance of the complainant is unnecessary. 79
25.
Right to have a support person, intermediary or interpreter during trial-All
witnesses (including the AV) are entitled to have their testimony translated and
read out to them before it is recorded if they do not understand the language of the
court 80. 81 If they give testimony in another language (not being English, and not
being the language of the court) then this must be translated before a record of the
evidence is made. 82 All interpreters are bound by law to perform their role with
integrity. 83 No other support persons or intermediaries are permitted.
26.
Access to other special measures-If the court feels that it is necessary to have a
witness’ testimony (presumably including the AV , though it seems as though it may
be difficult for the prosecution to try and establish their case without the AV in
court) but such testimony but such testimony cannot be
given without
unreasonable delay, expense or inconvenience, it may issue a commission to the
relevant authority to take such evidence in accordance with the provisions of the
CrPC, and the costs incurred by the accused and her lawyer will be undertaken by
the prosecution if this is a prosecution witness. 84 One example of this can be if the
witness is in another country. 85
27.
The court may, if it thinks fit order the Government to bear the e xpenses incurred
by the complainant or any witness in attending court proceedings. 86
e)
At the time of sentencing, are there any provisions for victim impact statements?
Is the reward of compensation allowed at sentencing? If yes, who bears this cost?
Are there any other forms of rehabilitation guaranteed to AVs? Do these depend
on a finding of guilt?
28.
There is no provision for victim impact statements, and the sentence is decided by
the judge after hearing the accused on the point of sentencing. 87 There are now
CrPC, s 256.
The language of the court is to be determined by the State Government: ibid, s 272.
81 Ibid, s 278(3).
82 Ibid, s 277.
83 Ibid, s 282.
84 Ibid, s 284.
85 Maharashtra and PC Singh v Praful Desai (2003) 4 SCC 601 [20].
86 CrPC, ss 254(3) (summons cases), 312.
87 Ibid, ss 235 (sessions cases), 248 (warrant cases); 255 (summons cases), 360 (general provision).
79
80
extensive provisions on compensation, as discussed above but no rehabilitation of
any other kind. 88
f)
29.
What rights rest with the alleged victim in respect of the appeal?
Appeals against allegedly inadequate sentencing can be made only by the
Government 89 but the complainant does have a right to appeal an acquittal with the
leave of the High Court. 90 If the appeal is to be heard, notice of the date and time
shall be given to the complainant by the appellate court, in such cases as the
complaint was made to the Magistrate . 91 This right does not extend to those cases
in which the Magistrate took cognisance of the case upon receiving the police
report. 92 Further, AVs enjoy no passive rights in this regard.
30.
In case of offences relating to the administration of justice, if a court refuses to
lodge a complaint, the complainant has the right to appeal. 93
31.
Following 2008 under S 372 of the CrPC, the victim has a right to prefer an appeal
against any order passed by the Court acquitting the accused or convicting for a
lesser offence or imposing inadequate compensation.
g)
32.
Are there any rights available to the alleged victim when it comes to enforcement?
It is the appropriate government that has the right to suspend or remit sentences
though it may consult the trial judge. 94 The power to commute sentences to
something less harsh also rests with the government. 95 For certain offences in case
of offenders who are under the age of twenty one years, or are women, the Court
may order release on probation, or on admonition. 96 The AV does not have any
rights in any of these situations.
h)
Are there any other rights that facilitate alleged victim participation not covered
in the above chapter?
33.
Copies of the Judgment: While AVs are not automatically entitled to receive a
copy of the judgment, any person affected by the judgment or order concerned can
make an application to receive a copy, which will be given on payment of
prescribed amount, or, if the Court so decides for ‘some special reason’, free of
See also: Communal Violence Bill, s 21 which establishes a National Authority for Communal Harmony, Justice
and Reparation inter alia to monitor relief, rehabilitation and restitution (s 30, 31, 99,112). Similarly, Chapter V deals
with similar authorities to be established at the state level.
89 CrPC, s 377.
90 Ibid, s 378(4).
91 Ibid, s 385(1).
92 Shantilal Mohanlal Shah v Chandrakant Ambalal Thakkar (1987) 2 GLR 784.
93 CrPC, s 341.
94 Ibid, s 432.
95 Ibid¸s 433.
96 Ibid, s 360.
88
cost. 97 A ‘person affected’ does not need to be the accused and can also be the
complainant in any case. 98 The High Court may also from rules to provide that a
copy be issued to persons not affected by the judgment on an application made to
it. 99 However, even in the absence of such rules, third parties should not be
deprived of this ‘valuable right.’ 100 Notably, this restriction has per haps lost some
force in that people would be entitled to apply for such judgments under the Right
to Information Act 2005, under which no reasons need to be given by those
seeking public information. 101
QUESTION 2: ARE THERE ANY SPECIAL CATEGORIES OF
ALLEGED VICTIMS (EG CHILD WITNESSES, WITNESSES WITH
INTELLECTUAL
OR
MENTAL
DISABILITY,
WITNESSES
ALLEGING SEXUAL ABUSE ETC) TO WHOM THE ABOVE RIGHTS
ARE AVAILABLE? IF YES, DEFINE THOSE CATEGORIES AND
ANSWER THE ABOVE QUESTION IN RESPECT OF EACH
CATEGORY.
a) Measures for AVs of Sexual Violence (general)
34.
Special Provisions in relation to Complaints : Not conducting a lawful
investigation, or refusing to record information regarding certain offences relating
broadly to violence against women 102 is regarded as an offence under Section 166A
of the Indian Penal Code 1860 (IPC), as amended in 2013. It is punishable by a
minimum sentence of 6 months, and a maximum sentence of 2 years, and also
makes the offender liable for a fine. In case of Section 166A, the complainant
would approach the police under Section 154 of the CrPC, as elaborated upon
above. While usually, sanction of the relevant government is required before a
Ibid, s 363(5).
For instance in A Mariappan v State Criminal Original Petition(MD) No 9099 of 2010 (Madras High Court) the
complainant, whose house had been ransacked, was considered the ‘person affected’ when the accused was granted
bail.
99 CrPC, s 363(6).
100 JM Arumugham v State 2014 (306) ELT 422 (Mad) [10].
101 Right to Information Act 2005 (Act No 22 of 2005) s 6(2).
102 This includes: Indian Penal Code 1860 (Act No 45 of 1860) ss 326A (Voluntarily causing grievous hurt by use of
acid etc.), 326 B (Voluntarily throwing or attempting to throw acid), 354(Assault or criminal force to woman with
intent to outrage her modesty), 354B (Assault or criminal force to woman with intent to disrobe), 370 (Trafficking
of person), 370A (Exploitation of a trafficked person), 376 Punishment for Rape), 376A (Punishment for causing
death or resulting in persistent vegetative state of a woman), 376B (Sexual intercourse by husband upon his wife
during separation), 376C (Sexual intercourse by a person in authority), 376D (Gang rape), 376E (Punishment for
repeat offenders), 509 (Word, gesture or act intended insult them modesty of a woman) (IPC).
97
98
public officer can be prosecuted, this does not extend to certain offences relating
to violence against women, 103 including Section 166A.
Are there provisions for support services (including counselling, use of interpreter,
interim compensation and other measures) at the time of complaint?
35.
In case of the AV is giving information of certain offences dealing broadly with
violence against women, 104 the information is to be recorded by women officers. 105
In case such an AV is also mentally or physically disabled, the information needs to
be recorded by a police officer at the residence of the person, or at any convenient
place selected by the AV in the presence of a special educator or interpreter.
106
This exchange must be videographed. 107 Similarly, the AV’s statement to the
Magistrate should also be taken as soon as information regarding the commission
of the offence comes to the notice of the police. In case the AV is mentally or
physically disabled, the statement is to be taken with the help of an interpreter or
special educator, and shall be videographed. 108
36.
Interim Compensation: In the Delhi Domestic Working Women’s Forum case in 1994,
the Supreme Court of India ordered the National Commission for Women to come
up with a scheme for providing compensation to rape victims and AVs. It ordered
the setting up of a Criminal Injuries Compensation Board through which
‘Compensation for victims shall be awarded …whether or not a conviction has
taken place.’ 109 The idea is to compensate women for the pain, suffering, shock and
loss of earnings they might suffer as a result of rape. The National Commission for
Women drafted guidelines in keeping with this judgment and, based on Central
Government feedback, published them in 2005. 110 They were last revised in 2010 to
include both interim and final compensation. 111
Ibid, ss 166A, 166B (punishment for non-treatment of AVs of rape and other offences), 354, 354A, 354B, 354C,
354D, 370, 375, 376, 376A, 376C, 376D or 509 of the Indian Penal Code.
104 Ibid, ss 326A (Voluntarily causing grievous hurt by use of acid etc.), 326 B (Voluntarily throwing or attempting to
throw acid), 354(Assault or criminal force to woman with intent to outrage her modesty), 354B (Assault or criminal
force to woman with intent to disrobe), 370 (Trafficking of person), 370A (Exploitation of a trafficked person), 376
Punishment for Rape), 376A (Punishment for causing death or resulting in persistent vegetative state of a woman),
376B (Sexual intercourse by husband upon his wife during separation), 376C (Sexual intercourse by a person in
authority), 376D (Gang rape), 376E (Punishment for repeat offenders), 509 (Word, gesture or act intended insult
them modesty of a woman).
105 CrPC, Proviso to s 154(1).
106 Ibid, Proviso to s 154(1).
107 Ibid, Proviso to s 154(1).
108 Ibid, s 164(5A).
109 Delhi Domestic Working Women's Forum v Union of India 1995 SCC (1) 14 [15].
110
‘Relief Scheme for Rape Victims’ The Hindu (New Delhi, 18 September 2005)
<www.thehindu.com/2005/09/18/stories/2005091805431000.htm> accessed 18 March 2015
111 Revised Scheme for Relief and Rehabilitation of Rape Victims (as revised on 15 April 2010).
103
37.
While these were still being finalised, the Bodhisattwa Gautam judgment 112 was also
delivered which reiterated the right of rape victims and AVs to interim an d final
compensation, and recognised the fact that sexual offences are actually a violation
of the constitutional right to life of the victim. Thus, if the State fails in its duty to
protect constitutional rights, it must be made to pay compensation.
Are there provisions for witness protection during the investigation?
38.
There are no provisions for protection, although it has been mandated by the
Supreme Court that anonymity should be maintained in cases of sexual violence. 113
Are the alleged victims consulted while deciding whether to prosecute? Are private
prosecutions allowed?
39.
There are no provisions for this category of AVs in addition to what has already
been discussed.
What are the rights available to the alleged victims during trial?
40.
In case of sexual offences, the trial is to be conducted in camera, though the court
might allow parties access to the proceedings on an application made. 114 The
Supreme Court has ordered in the past that all complainants in cases of sexual
violence should be provided with their own legal counsel, but this guideline has not
found expression in any statute. 115 Further, the Supreme Court has stated that is
permissible for AVs in case of sexual offences (as well as assault with an intent to
outrage a woman’s modesty under Section 354) to testify using video conferencing,
or use screens or other devices to avoid seeing the accused. 116 It was also indicated
that it is desirable for cross-examination of the AV to be conducted by relaying the
questions to the Court, who would use appropriate language before relaying the
questions to the AV. 117 Additionally, frequent breaks should be given to the AV in
such cases. 118 As far as possible, cases of sexual assault against women should be
tried by female judges. 119
Bodhisattwa Gautam v Subhra Chakraborty 1996 SCC (1) 490.
Delhi Domestic Working Women's Forum v Union of India [15].
114 CrPC, s 327(2).
115 Delhi Domestic Working Women's Forum v Union of India [15].
116 Sakshi v Union of India (2004) 5 SCC 518 [31], [32].
117 Ibid [32].
118 Ibid [32].
119 Ibid [33], [34].
112
113
At the time of sentencing, are there any provisions for victim impact statements? Is the
reward of compensation allowed at sentencing? If yes, who bears this cost? Are there any
other forms of rehabilitation guaranteed to the victims? Do these depend on a finding of
guilt?
41.
There are no provisions for this category of AVs in addition to what has already
been discussed.
What rights rest with the alleged victim in respect of the appeal?
42.
There are no provisions for this category of AVs in addition to what has already
been discussed.
Are there any rights available to the victim when it comes to enforcement?
43.
There are no provisions for this category of AVs in addition to what has already
been discussed.
Are there any other rights that facilitate victim participation not covered in the above
chapter?
44.
There are no other rights.
b) Measures for AVs of Sexual Violence (children)
45.
For offences committed under the Protection of Children from Sexual Offences
Act 2012 (POCSO Act), the complaint in these cases can be made to Special
Juvenile Police Units (SJPU), o r to the local police. 120 Such a complaint is to be
recorded in writing, and read over to the complainant. 121 Where the complainant is a
child, the recording will be in simple language so that it is comprehensible to her. 122
No person shall be subject to any cri minal or civil liability for reporting an offence
in good faith under the POCSO Act. 123
46.
Definition of ‘Child’- The word ‘child’ under the POCSO Act refers to any person
below the age of 18 years. 124
Are there provisions for support services (including counselling, use of interpreter,
interim compensation and other measures) at the time of complaint?
47.
Under the POCSO Act, while lodging a complaint, an interpreter shall be provided
if required upon prescribed payment of fees. 125 The SJPU or police are also required
to refer the matter not only to the relevant court (along with a need of welfare
Protection of Children from Sexual Offences Act 2012 (Act No 32 of 2012) s 19(1) (POCSO Act): Special
Juvenile Police Units are units present in every district, and trained to deal with child complainants.
121 Ibid, s 19(2).
122 Ibid, s 19(3).
123 Ibid, s 19(7).
124 Ibid, s 2(1)(d).
125 Ibid, s 19(4).
120
measures needed to be taken in the case), but also the Child Welfare Committee
established under the Juvenile Justice (Care and Protection of Children) Act 2000, 126
as soon as possible and no later than 24 hours. 127
Are there provisions for witness protection during the investigation?
48. Under the POCSO Act, if the child is in need of protection, the SJPU or police are
required to make arrangements for protection within 2 4 hours. 128 The media has a
strict obligation during this time to ‘complete and authentic’ reporting, and to refrain
from disclosing the identity of the child, unless the court decides such disclosure
would be in her best interests. 129
49. The statement of the child will be recorded in her residence, or in a place of her
convenience, as far as practicable, by a woman police officer not below the rank of
sub-inspector. 130 The police officer recording the statement shall not be in uniform, 131
and shall ensure that the child, during the course of the investigation, doesn’t come
in contact with the accused at any point. 132 No child can be detained overnight at a
police station, 133 and the police shall ensure that the identity of the child is protected
from the public media at all times. 134
50. The Magistrate is obliged to furnish a copy of the following to the child and her
parents or representative-the police report, complaint recorded by the police, the
statements made to the police (excluding such portions as requested by the polic e),
confessions and statements made to the Magistrate, and any other relevant
documents (though in respect of this last category, it may be that the documents are
so bulky that the Magistrate grants permission for inspection rather than giving
actual copies). 135
51. Any statement of the child can be recorded only in the presence of her parents or any
other person in whom she has trust and confidence, 136 and an interpreter may be
provided (by the police or the Magistrate as the case may be) upon prescribed
payment of fees. 137 The Magistrate or the police officer may also seek the services of
Juvenile Justice (Care and Protection of Children) Act 2000 (Act No 56 of 2000), s 29.
POCSO Act, s 19(6).
128 Ibid, s 19(5).
129 Ibid, s 23.
130 Ibid, s 24(1).
131 Ibid, s 24(2).
132 Ibid, s 24(3).
133 Ibid, s 24(4).
134 Ibid, s 24(5).
135 Ibid, s 25(2).
136 Ibid, s 26(1).
137 Ibid, s 26(2).
126
127
a special educator, communication expert or any person familiar with the
communication of the child in case of a mentally or physically disabled child. 138
Wherever possible, the statement of the child is to be recorded by audio -visual
means. 139
52. The medical examination of a child has to be done within 24 hours of the complaint
being filed and can only be done by a registered practitioner, or in the absence of
such a practitioner, another practitioner for whom consent has been given by her, or
another person entitled to consent on her behalf. 140 However, this will not render
lawful any examination which has been conducted without her consent. 141 In case the
AV is a girl child, the examination will be conducted by a female doctor. 142 The
medical examination is required to be conducted in the presence of the parents of the
child or any other person in whom the child reposes trust, 143 failing which, it shall be
conducted in the presence of a woman nom inated by the head of the relevant medical
institution. 144
Are the alleged victims consulted while deciding whether to prosecute? Are private
prosecutions allowed?
53.
There are no provisions for this category of AVs in addition to what has already
been discussed.
What are the rights available to the alleged victims during trial (specify if they are
entitled to have their own legal counsel)?
54. The family or guardian of the child AV are entitled to take the assistance of a legal
counsel of their choice in POCSO case s, and the Legal Services Authority is required
to provide them with a lawyer if they can’t afford one on their own. 145
55. There are Special Courts that are set up under the POCSO Act to try offences under
that statute. 146 There are many safeguards available here , though they are
conceptualised as duties of the court rather than rights of the AV.
56. In these cases, the examination, cross examination or re -examination of the child AV
is conducted by relaying questions to the judge, who would then ask them of the
Ibid, s 26(3).
Ibid, s 26(4).
140 Ibid, s 27(1) read with CrPC, s 164A(1).
141 POCSO Act, s 27(1) read with CrPC, s 164A(7).
142 POCSO Act, s 27(1).
143 Ibid, s 27(3).
144 Ibid, s 27(4).
145 Ibid, s 40.
146 Ibid, ch VII.
138
139
child concerned. 147 The Special Court may permit frequent breaks to the child AV
testifying, if necessary, 148 and is under an obligation to try creating a child friendly
atmosphere by allowing a family member, guardian, relative or friend in whom the
child has confidence to be present in court. 149 The Special Court is also under a duty
to ensure that the child is not called repeatedly to court, and that the dignity of the
child is maintained throughout the trial, 150 without subjecting her to ‘aggressive
questioning or character assassination.’ 151 The Special Court shall ensure that the
identity of the child is kept undisclosed at all times, unless this is in the best interests
of the child. 152 The evidence of the child AV is to be required within 30 days of the
court having taken cognisance of the offence, and if there is a delay, reasons for the
same must be recorded by the court. 153
57. It is the Special Court’s duty to ensure that the child is not exposed to the accused
while testifying while at the same time ensuring that the accused is in a position to
hear the child and communicate with her advocate. 154 This can be done by using video
conferencing, single visibility mirrors, curtains, or any other device. 155 The general
rule is that cases will be tried in camera in the presence of the parents of the child, or
any other person in whom the child reposes trus t and confidence. 156 While recording
the testimony of the child, upon payment of prescribed fees, the Special Court may
take the assistance of an interpreter, translator or, in the case of a mentally or
physically disabled child, a special educator, communic ation expert or any other
person familiar with the manner of communication of the child. 157
58. For offences not dealt with under POCSO, while evidence must usually be given in
the presence of the accused, in case the witness is an AV of sexual violence, under
the age of 18 years, the court may take measures to ensure that the witness is not
confronted by the accused while still maintaining the accused’s right to cross
examination. 158
Ibid, s 33(2).
Ibid, s 33(3).
149 Ibid, s 27(4).
150 Ibid, s 27(5).
151 Ibid, s 27(6).
152 Ibid, s 27(2).
153 Ibid, s 35(1).
154 Ibid, s 36(1).
155 Ibid, s 36(2).
156 Ibid, s 37.
157 Ibid, s 38.
158 CrPC, s 273.
147
148
59. For offences not covered by the POCSO Act, individual High Courts have also com e
up with guidelines for cases that have child witness. For instance the Delhi High
Court’s procedural guidelines contain provision for including pre -trial visit to
court, 159 and allowing support persons to accompany children even to the witness
stand. 160 The Delhi High court has further issued many judgments mandating the use
of child-friendly procedures for sexual crimes. 161
At the time of sentencing, are there any provisions for victim impact statements? Is the
reward of compensation allowed at sentencing? If yes, who bears this cost? Are there any
other forms of rehabilitation guaranteed to the victims? Do these depend on a finding of
guilt?
60. The Special Court may also, ‘in addition to the punishment, direct payment
of…compensation’ for any physical or mental t rauma caused to the child or for her
immediate rehabilitation. 162 While it is not expressly stated, the drafting of this
provision suggests that the cost will be borne by the accused, and this measure can
be relied on any when there is a finding of guilt (since compensation here is in
addition to the punishment). There is no provision for victim impact statements or
other measures for rehabilitation.
What rights rest with the alleged victim in respect of the appeal?
61. There are no special rights available to child AVs in respect of appeals.
Are there any rights available to the victim when it comes to enforcement?
62. There are no special rights available to child AVs in respect of enforcement .
Are there any other rights that facilitate victim participation not covered in the above
chapter?
63. There are no rights available in addi tion to the above.
CONCLUSION
64. The following key protections are available to all AVs :
62.1
During the course of investigation, young men, women and disabled people
cannot be ordered to meet the police anywhere except at their residence.
62.2
Each criminal court is bound to consider granting both interim and final
compensation to the AV, at the cost of the State.
Guidelines for recording of evidence of vulnerable witnesses in criminal matters r 13.
Ibid, r 18.
161 For instance Virender v Delhi Crl A No 121/2008 (Delhi High Court); Court on its own Motion v State WP (Crl) No
930/2007 (Delhi High Court).
162 POCSO Act, s 27(8).
159
160
62.3
In case of cognisable offences, AVs have the right to make private arrests and
take the accused to the police station.
62.4
The AV may be allowed a private counse l, though such a pleader must act under
the directions of the public prosecutor. In a Magistrate’s case, a private
prosecution may be allowed.
62.5
The court may order the Government to bear the costs incurred by the AV in
attending the trial.
62.6
The AV may be given a copy of the judgment upon payment of prescribed fees.
65. The following key protections are available to AVs in cases of rape (and other
sexual violence):
63.1
The complaint in these cases should be recorded only by a woman police officer,
and statements by disabled AVs are to be made at the location chosen by the AV,
in the presence of a special educator, and must be videographed.
63.2
Rape victims must be kept anonymous.
63.3
Many special measures are to be applied in trials involving sexual violence -the
AVs must be given their own lawyer, different methods of protecting the AV
from having to see the accused can be adopted, frequent breaks should be granted
to the AV, and cross examination should, as far as possible should be by
conveying questions through a judge, who would ideally be female. The trial must
be in camera.
66. The following protections are available to child AVs under the POCSO Act :
64.1
There must be specially trained police units to record such complaints.
64.2
Arrangements for protection of the AV, if necessary, must be made within 24
hours.
64.3
The media has a strict duty not to reveal the identity of the child
64.4
The child and her parents or representatives have a right to all the documentation
in the case.
64.5
There are provisions for the child to be supported by her parents, support
persons and communication experts while making her statement, which must be
recorded by audio-visual means when possible.
64.6
The medical examination must take place within 24 hours and must be conducted
by a registered medical practitioner (and in her absence, a practitioner to whom
the AV or her representatives have consented). Either the doctor must be a
woman, or the examination must be carried out in front of a woman.
64.7
The family or guardian of the child is entitled to their own lawyer, and may be
provided one through legal aid from the State.
64.8
At trial, questions can be asked to the judge only through the judge, and
aggressive modes of questioning are forbidden. The judge may grant frequent
breaks to the child while she is testifying, and is required to ensure that she is not
made to come too often to court. The child must be allowed to testify within 30
days of the complaint being made. Her identi ty must be kept concealed at all
times. The court may take the help of an interpreter, translator or special educator
while recording the child’s testimony.