Protection of Children from Sexual Offences Act, 2012

Specifically deals with sexual offences against all children -  The Act is gender neutral and applies to all children.

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Protection of identity of adult victims of rape and children who are victims of sexual abuse should be protected so that they are not subjected to unnecessary ridicule, social ostracisation and harassment.

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FIR Copy not to be provided

FIR - Copy of an FIR relating to the offence of rape against a women or offences against children falling within the purview of POCSO shall not be put in the public domain to prevent the name and identity of the victim from being disclosed 



Directions issued

Indian Penal Code, 1860, Section 228A - Protection of Children from Sexual Offences Act, 2012 - Directions issued - Request all the Chairpersons and Members of all the Juvenile Justice Committee of all the High Courts in the country to go through the judgment of the Calcutta High Court in the case of Bijoy v. State of West Bengal, 2017 Cri.L.J.3893 and the directions issued therein and they may issue similar directions, keeping in view the particular needs of each High Court/State. Following directions issued:

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.      

 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 the 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.

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

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.

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.

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

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 228A(2)(c) of IPC should be made only to the Sessions Judge concerned until the Government acts under Section 228A(1)(c) and lays down a criteria as per our directions for identifying such social welfare institutions or organisations.

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

 

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.

 

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Identity of any person

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 -  Section 228A IPC prohibits the printing or publishing “the name or any matter which may make known the identity of the person” - 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 - 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 - Protection of Children from Sexual Offences Act, 2012. 

Held,

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.                                                                   

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Directions to police

Indian Penal Code, 1860, Section 228A(2) - Exceptions of disclosure – Directions to police  -  In a first information report (‘FIR’) the name of the victim will have to be disclosed -  We are of the opinion that the police officers investigating such cases and offences should also as far as possible either use a pseudonym to describe the victim unless it is absolutely necessary to write down her identity -  Where the  identity is required to be revealed  to a third person or authority they 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 - Police should definitely ensure that the correspondence or memos exchanged or issued wherein the name of the victim is disclosed are kept in a sealed cover and are not disclosed to the public at large - They should not be disclosed to the media and they shall also not be furnished to any person under the Right to Information Act, 2015 - We direct that the police officials should keep all the documents in which the name of the victim is disclosed 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 by a large number of people - The sealed cover can be filed in the court along with the report filed under Section 173 CrPC. 

Held,

Some examples of matters where her identity will have to be disclosed are when samples are taken from her body, when medical examination is conducted, when DNA profiling is done, when the date of birth of the victim has to be established by getting records from school etc.. However, in these cases also the police officers should move with circumspection and disclose as little of the identity of the victim as possible but enough to link the victim with the information sought. We make it clear that the authorities to which the name is disclosed when such samples are sent, 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. There can be no hard and fast rule in this behalf but the police should definitely ensure that the correspondence or memos exchanged or issued wherein the name of the victim is disclosed are kept in a sealed cover and are not disclosed to the public at large. They should not be disclosed to the media and they shall also not be furnished to any person under the Right to Information Act, 2015. We direct that the police officials should keep all the documents in which the name of the victim is disclosed 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 by a large number of people. The sealed cover can be filed in the court along with the report filed under Section 173 CrPC

 


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Disclosure of the name of the child to make the child a symbol of protest- not permitted 

Protection of Children from Sexual Offences Act, 2012 – The disclosure of the name of the child to make the child a symbol of protest cannot normally be treated to be in the interest of the child - The same reasoning which we have given above for victims will apply to dead victims also - Even the dead have their own dignity - They cannot be denied dignity only because they are dead. 


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 Identity of the child is not to be disclosed at any time

Protection of Children from Sexual Offences Act, 2012,  Section 24(5), 33(7), 37 -  Non disclosure of identity of a child  -  A bare reading of Section 24(5) and Section 33(7) makes it amply clear that the name and identity of the child is not to be disclosed at any time during the course of investigation or trial and the identity of the child is protected from the public or media -  Section 37 provides that the trial is to be conducted in camera which means that the media cannot be present - The entire purpose of the POCSO is to ensure that the identity of the child is not disclosed unless the Special Court for reasons to be recorded in writing permits such disclosure -  This disclosure can only be made if it is in the interest of the child and not otherwise.

Held,

One such case where disclosure of the identity of the child may be necessary can be where a child is found who has been subjected to a sexual offence and the identity of the child cannot be established even by the investigating team. In such a case, the Investigating Officer or the Special Court may allow the photograph of the child to be published to establish the identity. It is absolutely clear that the disclosure of the identity can be permitted by the Special Court only when the same is in the interest of the child and in no other circumstances. Disclosure of the name of the child to make the child a symbol of protest cannot normally be treated to be in the interest of the child


Media Gag

Protection of Children from Sexual Offences Act, 2012, Section 23 - Procedure for media - The phrase ‘any other particulars’ will have to be given the widest amplitude and cannot be read only ejusdem generis - The intention of the legislature is that the privacy and reputation of the child is not harmed - Therefore, any information which may lead to the disclosure of the identity of the child cannot be revealed by the media - The media has to be not only circumspect but a duty has been cast upon the media to ensure that it does nothing and gives no information which could directly or indirectly lead to the identity of the child being disclosed - The name, address, school or other particulars which may lead to the identification of the child in conflict with law cannot be disclosed in the media -  No picture of such child can be published - A child who is not in conflict with law but is a victim of an offence especially a sexual offence needs this protection even more.                                                                                                                          


 One stop centres 

Protection of Children from Sexual Offences Act, 2012, Section 33(4), 36 - Child friendly courts – One stop centres – There is a need to have courts which are specially designed to be child friendly and meet the needs of child victims and the law 


Name, address, school not to be divulged

Protection of Children from Sexual Offences Act, 2012, Section 23 - The name, address, school or other particulars which may lead to the identification of the child in conflict with law cannot be disclosed in the media - No picture of such child can be published - A child who is not in conflict with law but is a victim of an offence especially a sexual offence needs this protection even more


IPC S 228A(2)(c) not to apply to minors

Indian Penal Code, 1860, Section 228A(2)(c) -  We are of the opinion that where the victim is a minor, Section 228A will no longer apply because of the enactment of POCSO which deals specifically with minors -  In fact, the words ‘or minor’ should for all intents and purposes be deemed to be deleted from clause (c) of sub-section (2) of Section 228A IPC.


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