Balbinder Singh vs State Of Meghalaya & Ors.

W. Diengdoh, J

An application under Section 483 of the BNSS, 2023 has been preferred herein with the prayer for grant of bail to the accused person who was arrested in connection with Nongpoh Women P.S. Case No. 72(10) of 2024 under Section 7/8 and 9(m)/10/11(iii)/12 of the POCSO Act, 2012.

The petitioner who is the wife of the said accused person while filing this application, besides making the State of Meghalaya and the Incharge, WPSI Umiam P.S. as party respondents, has also arrayed the complainant as respondent No. 3.

Now, when this application was moved for admission, the question arose as to whether the complainant in a case under the POCSO Act is required to be made a party and if so, as to how is notice to be effected, keeping in mind the sensitivity of the case involving an alleged crime against a child or women.

Section 483 sub-section (2) reads as follows:

“483. …

(2) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under section 65 or sub-section (2) of the Bharatiya Nyaya Sanhita, 2023.”

This provision provides for the presence of the informant or any person authorized by him to be present at the time of hearing of the application for bail.

In a case involving a minor, more particularly in a case of alleged sexual assault or rape, the identity of the victim or survivor is required not to be made known, the exception being that such identity can be revealed if it is caused by or under order of the Officer-in-Charge of the concerned police station or the Investigating Officer of the case for the purpose of investigation or with authorization in writing by the victim or the next of kin where the victim is dead or is of unsound mind. This provision is found in Section 72 of the Bharatiya Nyaya Sanhita, 2023.

Before proceeding further, it would be apt to refer to the relevant observations made by the Hon’ble Supreme Court as far as the issue of participation of the victim of a crime in the proceedings post the occurrence of an offence. Such observations being evident in the case of Jagjeet Singh & Ors. v. Ashish Mishra alias Monu & Anr., reported in (2022) 9 SCC 321, more particularly at para 23 wherein it was held that:

“23. A “victim” within the meaning of CrPC cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a “victim” has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that “victim” and “complainant/informant” are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a “victim”, for even a stranger to the act of crime can be an “informant”, and similarly, a “victim” need not be the complainant or informant of a felony.”

Now, if the presence of the victim or survivor (in cases of sexual assault) is to be acknowledged in court whenever there is an application or prayer made for grant of bail to the accused/alleged perpetrator of such crime, though the same is obligatory, nevertheless the fact that the name or details of the identity of the said victim or survivor appearing in the body of such application cannot be ruled out. If so, the issue of confidentiality as far as the identity of the victim/survivor is concerned may be compromised which would then attract the relevant provision of law in this regard.

There are however, authorities which have dealt with such issue, one case in particular is the case of Nipun Saxena v. The Union of India, (2019) 2 SCC 703, wherein at para 11, 12, 25 and 50 of the same the Hon’ble Supreme Court has observed as follows:

“11. Neither IPC nor CrPC define the phrase “identity of any person”.

Section 228A IPC clearly prohibits the printing or publishing “the name or any matter which may make known the identity of the person”. It is obvious that not only the publication of the name of the victim is prohibited but also the disclosure of any other matter which may make known the identity of such victim. We are clearly of the view that the phrase “matter which may make known the identity of the person” does not solely mean that only the name of the victim should not be disclosed but it also means that the identity of the victim should not be discernible from any matter published in the media. The intention of the law makers was that the victim of such offences should not be identifiable so that they do not face any hostile discrimination or harassment in the future.

A victim of rape will face hostile discrimination and social ostracisation in society. Such victim will find it difficult to get a job, will find it difficult to get married and will also find it difficult to get integrated in society like a normal human being. Our criminal jurisprudence does not provide for an adequate witness protection programme and, therefore, the need is much greater to protect the victim and hide her identity. In this regard, we may make reference to some ways and means where the identity is disclosed without naming the victim. In one case, which made the headlines recently, though the name of the victim was not given, it was stated that she had topped the State Board Examination and the name of the State was given. It would not require rocket science to find out and establish her identity. In another instance, footage is shown on the electronic media where the face of the victim is blurred but the faces of her relatives, her neighbours, the name of the village etc. is clearly visible. This also amounts to disclosing the identity of the victim. We, therefore, hold that no person can print or publish the name of the victim or disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.

Dealing with Section 327 CrPC in Gurmit Singh case, (1996) 2 SCC 384 this Court held as follows:-

24…It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar a surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood…. The courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout. In the present case, the trial court has repeatedly used the name of the victim in its order under appeal, when it could have just referred to her as the prosecutrix. We need say no more on this aspect and hope that the trial courts would take recourse to the provisions of Sections 327(2) and (3) CrPC liberally. Trial of rape cases in camera should be the rule and an open trial in such cases an exception.”

In view of the aforesaid discussion, we issue the following directions:

50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large.

50.2. In cases where the victim is dead or of unsound mind the name of the victim or her identity should not be disclosed even under the authorization of the next of kin, unless circumstances justifying the disclosure of her identity exist, which shall be decided by the competent authority, which at present is the Sessions Judge.

50.3. FIRs relating to offences under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB or 376-E IPC and the offences under POCSO shall not be put in the public domain.

50.4. In case a victim files an appeal under Section 372 CrPC, it is not necessary for the victim to disclose his/her identity and the appeal shall be dealt with in the manner laid down by law.

50.5. The police officials should keep all the documents in which the name of the victim is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the victim is removed in all records which may be scrutinised in the public domain.

50.6. All the authorities to which the name of the victim is disclosed by the investigating agency or the court are also duty-bound to keep the name and identity of the victim secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency or the court.

50.7. An application by the next of kin to authorise disclosure of identity of a dead victim or of a victim of unsound mind under Section 228-A(2)(c) IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228-A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.

50.8. In case of minor victims under POCSO, disclosure of their identity can only be permitted by the Special Court, if such disclosure is in the interest of the child.

50.9. All the States/Union Territories are requested to set up at least one “One-Stop Centre” in every district within one year from today.”

In the light of the relevant pronouncement in the Jagjeet Singh case and the restrictions imposed by the Nipun Saxena case, this Court is of the considered opinion that the informant/ complainant/ victim/ survivor can be made party in an application for grant of bail, however his or her identity is to be confidentially kept secret to be made known to the parties concerned only from the information available in the relevant records.

Under such circumstances, it is the direction of this Court that the identity of such informant/complainant/victim/survivor to be revealed in the cause title of an application for grant of bail or the like, can only be done so by way of an affixation of the character “X” without revealing even the address of such party.

However, it would also be incumbent upon the prosecution or the petitioner to cause issuance of notice to such respondent, through the Investigating Officer of the case, even if the case has proceeded for trial before the competent court of jurisdiction. The IO would then effect service personally or through assign and to further informed the noticee that legal aid can be availed if appearance before the court is so desired or if engagement of a private counsel is not affordable.

The abovementioned directions would be applicable not only to cases filed before this Court but also to all such kind of cases filed before the Trial Courts in the State of Meghalaya.

Accordingly, the issue under reference is hereby answered.

Let copy of this order be issued to all the Sessions Court and Special Courts (POCSO) within the State of Meghalaya for due compliance.

Petitioner is directed to take necessary steps in accordance with the directions given herein. The same returnable within 2(two) weeks.

List this matter thereafter.