It is observed that in several matters instituted before
this court where victim anonymity is to be maintained, the identity of
the victim is disclosed directly or indirectly. In some matters, identity is
disclosed in the pleadings and in some others, identity is disclosed in
the documents produced along with the pleadings. It is also observed
that though documents revealing the identity of the victim are
produced in sealed covers in the light of the decision of the Apex Court
in Nipun Saxena and another v. Union of India and others, (2019)
2 SCC 703, there is no system in place to maintain victim anonymity,
once the sealed covers are opened by the court. In the case on hand, it
is observed that the opened cover containing the documents were sent
back to the section and brought back from the section to the court on
the subsequent hearing dates. It is also observed that there is no
system in place for disposal of the documents produced in sealed
covers, after the final disposal of the case. Similarly, it is observed that
the registry is insisting copies of the documents revealing the identity
of the victims to be given to the opposite parties in the matter. There is
no system in place to maintain victim anonymity in such situations.
Needless to say, the procedure in place to maintain victim anonymity is
against the spirit of Section 228A of the Indian Penal Code, Sections
24(5), 33(7) and 37 of the Protection of Children from Sexual Offences
Act, 2012, and the decision of the Apex Court in Nipun Saxena. In the
circumstances, the following directions are issued for future guidelines
for maintaining victim anonymity in the matters instituted before this
court:
1. The criteria for deciding the identity of the victim shall
include the identity of the family of the victim, the school/college of the
victim, the place of work of the victim, the relatives of the victim, the
neighbourhood of the victim and all other information from which the
identity of the victim would be revealed.
2. In all proceedings instituted by or on behalf of the
victim and against them, documents in which the identity of the victim
is disclosed, either required in terms of the rules of the court or
produced by the parties concerned to substantiate their case, shall be
insisted to be filed in a sealed cover.
3. The registry shall designate an officer for the proper
custody of documents produced in sealed covers in cases where victim
anonymity is to be maintained and shall provide to that officer
necessary infrastructure for keeping custody of the documents. Such
officer shall be bound by the highest standards of confidentiality.
4. After the matter is numbered, registry shall forward
the documents received in sealed covers in a self-sealing bag/envelope
of appropriate size, preferably one having a provision for tamper proof
seal as well, or in other similar tamper proof bag/envelope, after
affixing on it a label indicating the particulars of the case under the
signature of the Filing Scrutiny Officer concerned to the designated
officer for custody and that officer shall ensure that the documents are
made available to the court as and when the matters are listed for
hearing.
5. If the self-sealing bag/envelope in which the
documents are kept is opened by the court for perusal of the
documents, after the purposes of the court, the same shall be kept in a
fresh self-sealing bag/envelope and returned to the designated officer,
after affixing on the same a new label indicating the particulars of the
case under the signature of the Court Officer concerned. If the selfsealing
bag/envelope is opened subsequently by the court, the same
procedure directed herein-above shall be repeated.
6. The parties producing documents disclosing the
identity of the victims need not have to keep or give copies of the same to the opposite parties and they need only refer to such documents in their pleadings.
7. If the lawyers appearing against the victims
require/need to peruse the documents in the sealed covers, they shall peruse the same with the permission of the court and if they are permitted by the court to peruse the documents, the documents shall be preserved in the same manner indicated in the preceding directions.
8. These directions shall be in force until replaced by the
Honourable the Chief Justice by appropriate practice instructions.
PRESENT
Crl.MC.No.3463 OF 2020(C)
X Vs STATE OF KERALA
Coram: P.B.SURESH KUMAR, J.
Dated this the 9th day of September, 2020
This is a proceedings challenging Annexure - 4 order
passed by the Special Court for Trial of Offences under the Protection
of Children from Sexual Offences Act, Thalassery, in terms of which
the sole accused in Crime No.94 of 2020 of Panoor Police Station,
renumbered as Crime No.33 of 2020 of CBCID, Kasaragode, was
enlarged on bail.
2. The petitioner is the mother of the victim in the
case. The victim is aged about 10 years. The second respondent who is the accused in the case is a teacher in the school where the victim
is pursuing her studies. The accusation in the case is that the
accused committed sexual assault on the victim girl on several
occasions in between 15.01.2020 and 02.02.2020 at the bathroom of
the school. The case was, therefore, registered for offences
punishable under Sections 376(2)(f), 376AB and 354B of the Indian
Penal Code (the IPC) and Sections 5(f), 5(l) and 5(m) read with
Section 6 of the Protection of Children from Sexual Offences Act,
2012 (the POCSO Act).
3. The accused, on his arrest, moved the Special Court
for bail on a few occasions and all the applications preferred by him
in this regard have been dismissed. The accused, thereupon, moved
this court for bail, and this court also declined bail to the accused in
terms of Annexure - 3 order. Later, since the final report in the case
has not been filed despite the accused being in custody for 90 days,
the accused filed Crl.M.C.No.890 of 2020 before the Special Court for
bail under Section 167(2) of the Code of Criminal Procedure (the
Code). When the said application was pending, the final report in the
case has been filed alleging commission of offences punishable under
Sections 323 and 324 of the IPC and Sections 75 and 82 of the
Juvenile Justice (Care and Protection of Children) Act, 2015. Annexure
– 6 is the final report. It is, however, stated in Annexure – 6 final
report that the investigation in the case as regards the remaining
offences is yet to be completed, and as and when the investigation is
completed, supplemental final report would be filed in the matter.
When the final report was filed, the accused filed Crl.M.P No.1559 of
2020 in the pending proceedings, praying for orders to treat the
proceedings as one instituted under Section 439 of the Code. In the
meanwhile, the investigating officer in the case filed an application
seeking permission of the court for conducting further investigation
in the matter under Section 173(8) of the Code and the Special Court
allowed the said application. The Special Court took the view that
insofar as the investigation in the case has not been completed
despite the accused being in custody for 90 days, the accused is
entitled to bail, and accordingly he was enlarged on bail in terms of
Annexure - 4 order. As noted, the petitioner is aggrieved by
Annexure - 4 order.
4. Heard the learned counsel for the petitioner, the
learned Senior Public Prosecutor as also the learned counsel for the
accused.
5. The learned counsel for the petitioner contended
that the application for bail preferred by the accused has been
dismissed by this court only on 08.07.2020 and the decision of the
Special Court in granting bail to him within a week thereafter on
16.07.2020 is vitiated by judicial impropriety. The learned counsel
has relied on the decision of this court in Jayaraj v. State of Kerala,
2009(3) KLT 653, in support of the said contention. It was also
contended by the learned counsel that the offence punishable under
Section 376AB of the IPC being one of the offences alleged against
the accused, the court below ought to have heard the petitioner also
as provided for under Section 439(1A) of the Code for granting bail to
the accused and the impugned order being one passed without
following the said procedure, the same is vitiated. It was also
contended by the learned counsel that in so far as the conclusion
arrived at by the investing agency as of now is that the offences
punishable under the POCSO Act are not made out, the Special Court
established under the POCSO Act lacks jurisdiction to grant bail to the
accused and the impugned order is liable to be set at naught on that
ground as well. In addition, the learned counsel has made elaborate
submissions to bring home the point that the allegations against the
accused are correct and the Special Court, in the circumstances,
ought not to have granted bail to the accused.
6. The learned Senior Public Prosecutor submitted that
the investigation in the case is still continuing and the investigating
agency has not so far ruled out the commission of the serious
offences alleged against the accused, including the offences
punishable under the POCSO Act. Having regard to the peculiar facts
of this case, the learned Senior Public Prosecutor has also submitted
that the Special Court ought not to have granted bail to the accused
at this stage.
7. The learned counsel for the second respondent
submitted that the impugned order is one passed under Section
167(2) of the Code. It was also submitted by the learned counsel that
since the accused was enlarged on bail under Section 167(2) of the
Code, Section 439(1A) of the Code does not have any application. It
was also submitted by the learned counsel that insofar as the second
respondent is alleged to have committed offences punishable under
the POCSO Act also and the investigation in the case is yet to be
concluded, it cannot be said that the Special Court is denude of its
powers in granting bail to the accused.
8. In reply to the submissions made by the learned
counsel for the second respondent, the learned counsel for the
petitioner asserted that the impugned order cannot be construed as
one issued under Section 167(2) of the Code and that the same is
one passed on merits invoking the power under Section 439 of the
Code and that the Special Court, in the circumstances, would have
complied with Section 439(1A) of the Code. Alternatively, placing
reliance on the provision in Section 439(1A) of the Code, it was
submitted by the learned counsel that the said provision needs to be
complied with, even while granting bail to an accused in a case under
Section 167(2) of the Code.
9. I have considered the submissions made by the
learned counsel for the parties on either side.
10. The concept of setting aside an unjustified, illegal or
perverse order granting bail to the accused in a case and the concept
of cancelling the bail granted to the accused on the ground that he
has misused the freedom granted, are different. In the case on hand,
the petitioner seeks orders setting aside the bail granted to the
second respondent on the ground that the impugned order granting
him bail is unjustified, illegal and perverse. The contentions advanced
by the learned counsel for the petitioner need to be considered in the
above perspective.
11. This being a proceedings challenging the bail
granted to the accused in a case, it may not be appropriate for this
court to examine the correctness or otherwise of the allegations
levelled against the accused, for while granting or declining bail, the court is not is expected to make an adjudication as to the correctness of the allegations levelled against the accused. As such, I am not
impressed by the arguments advanced by the learned counsel for the
petitioner on the premise that the allegations levelled against the
accused are correct. Similarly, I do not find any merit in the argument
made by the learned counsel for the petitioner that the Special Court
lacks jurisdiction to grant bail in a case of the instant nature, for the
investigation in the case is yet to be completed and the investigating
agency has so far not ruled out the commission of the offences under
the POCSO Act by the accused.
12. The next question is as to whether the Special Court
was justified in granting bail to the second respondent without
compliance of the provision contained in Section 439(1A) of the Code.
For considering this question, it is necessary to consider the ancillary
question as to whether the accused was entitled to bail in terms of
Section 167(2) of the Code, for if it is found that the accused was
entitled to bail under that provision, the dispute between the parties
as to the power exercised by the Special Court for granting bail to the
accused would become irrelevant. True, the investigation in the case
relates to offences punishable with imprisonment for a term not less
than 10 years. As far as the allegations constituting the said offences
are concerned, the final report is yet to be filed and the investigation
is still continuing. If that be so, the accused is entitled to bail under
Section 167(2) of the Code, unless the court finds that the accused is
not entitled to be enlarged on bail in view of the offences disclosed in the final report already filed. The petitioner has no case that the
Special Court was not justified in granting bail to the accused having
regard to the materials, on the basis of which the final report has
been filed. In other words, it can be concluded that the accused is
entitled to bail in the case under Section 167(2) of the Code. If that
be so, the question to be examined is as to whether it is necessary
for the court granting bail to an accused under Section 167(2) of the
Code, to comply with the provision under Section 439(1A) of the
Code.
13. Sub-sections (1) and (2) of Section 167 of the Code,
which is relevant in the context, read thus:
“167. Procedure when investigation cannot be
completed in twenty-four hours.
(1) Whenever any person is arrested and detained in custody,
and it appears that the investigation cannot be completed
within the period of twenty-four hours fixed by section 57, and
there are grounds for believing that the accusation or
information is well-founded, the officer-in-charge of the police
station or the police officer making the investigation, if he is
not below the rank of sub-inspector, shall forthwith transmit to
the nearest Judicial Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and shall at the
same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded
under this section may, whether he has or has no jurisdiction
to try the case, from time to time, authorise the detention of
the accused in such custody as such Magistrate thinks fit, for a
term not exceeding fifteen days in the whole; and if he has no
jurisdiction to try the case or commit it for trial, and considers
further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction:
PROVIDED that, -
(a) the Magistrate may authorise the detention of the accused
person, otherwise than in the custody of the police, beyond the
period of fifteen days; if he is satisfied that adequate grounds
exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this
paragraph for a total period exceeding-
(i) ninety days, where the investigation relates to an
offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety
days, or sixty days, as the case may be, the accused
person shall be released on bail if he is prepared to and
does furnish bail, and every person released on bail under
this sub-section shall be deemed to be so released under
the provisions of Chapter XXXIII for the purposes of that
Chapter;
(b) no Magistrate shall authorise detention of the accused in
custody of the police under this section unless the accused is
produced before him in person for the first time and
subsequently every time till the accused remains in the
custody of the police, but the Magistrate may extend further
detention in Judicial custody on production of the accused
either in person or through the medium of electronic video
linkage;
(c) no Magistrate of the second class, not specially empowered
in this behalf by the High Court, shall authorise detention in the
custody of the police.
Explanation I.- For the avoidance of doubts, it is hereby
declared that, notwithstanding the expiry of the period
specified in paragraph (a), the accused shall be detained in
custody so long as he does not furnish bail.
Explanation II.- If any question arises whether an accused
person was produced before the Magistrate as required under
clause (b), the production of the accused person may be
proved by his signature of the order authorising detention or by
the order certified by the Magistrate as to production of the
accused person through the medium of electronic video
linkage, as the case may be:
PROVIDED FURTHER that in case of women under eighteen
years of age, the detention shall be authorised to be in the
custody of a remand home or recognised social institution.”
It is evident from the extracted provisions that the investigation in a
case ought to be completed ideally within first 24 hours and if the
investigation cannot be completed within the said time limit, and if
there are grounds for believing that the accusation is well-founded,
the officer investigating the case shall forward the accused to the
nearest Judicial Magistrate and that Judicial Magistrate may from time
to time authorize the detention of the accused in such custody
thereafter as such Magistrate thinks fit, for a term not exceeding
fifteen days in the whole. The proviso to sub-section (2) of Section
167 however, precludes the Magistrate from authorizing detention of
the accused under that provision for a total period exceeding ninety
days, where the investigation relates to an offence punishable with
death, imprisonment for life or imprisonment for a term not less than
ten years and sixty days, where the investigation relates to any other
offence and mandates that on the expiry the said period of ninety
days or sixty days, as the case may be, the accused person shall be
released on bail, if he is prepared to and does furnish bail. It is also
evident from sub-sections (1) and (2) of Section 167 of the Code that the detention of the accused during the course of investigation ought to be confined to sixty or ninety days, as the case may be, and the custody of the accused thereafter ought not to be guided by the suspicion that he may have committed the offence.
14. Coming to the bail under Section 167(2) of the Code,
it is fundamentally different from the bail under Sections 437, 438
and 439 of the Code. The contrast is particularly stark since Section
167(2) grants an indefeasible right to an accused, whereas Sections
437, 438 and 439 do not grant any such right to the accused and
grant of bail under those provisions is only a matter of judicial
discretion. The right of an accused to seek bail under Section 167(2)
accrues upon the default of the investigating officer in concluding the
investigation within the requisite time specified in the provision.
While considering an application for bail under Section 167(2), a
court does not consider the merits of the case, but only considers the
question as to whether there is default on the part of the
investigating agency in completing the investigation in the case
within the prescribed period. If the investigating agency fails to file
the final report in the case within the time prescribed, the accused in
custody gets an absolute right to bail [See Rajnikant Jivanlal v.
Intelligence Officer, Narcotic Control Bureau, New Delhi,
(1989(3) SCC 532 and Uday Mohanlal Acharya v. State of
Maharashtra, (2001)5 SCC 453)]. As opposed to Section 167(2), a
court acting under Sections 437 and 439 are guided by different
considerations in exercising its judicial discretion namely (i) the
nature of accusation and the severity of the punishment in the case
of conviction and the nature of the materials relied upon by the
prosecution; (ii) reasonable apprehension of tampering with the
witnesses or apprehension of threat to the complainant or the
witnesses; (iii) reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his ascendance; (iv)
character, behaviour and standing of the accused and the
circumstances which are peculiar to the accused; (v) larger interest
of the public or the State and similar other considerations [See
Prahlad Singh Bhati v. NCT, Delhi and another, (2001) 4 SCC
280]. There is no hard and fast rule also regarding grant or refusal to
grant bail under those provisions and the case has to be considered
on the facts and circumstances of each case and on its own merits.
15. Section 439(1A) of the Code reads thus:
“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 sub-section (3) of
section 376 or section 376AB or section 376DA or section
376DB of the Indian Penal Code(45 of 1860).”
It brooks no argument that Section 439(1A) is mandatory vis-à-vis
applications for bail are concerned other than the applications under
Section 167(2) of the Code. True, the phraseology of Section 439(1A)
favours the section being considered as mandatory for applications
for bail under Section 167(2) also. But the phraseology alone cannot
be the decisive factor for resolving the question as to whether
Section 439(1A) of the Code applies to an application for bail under Section 167(2) of the Code. The question is whether the legislature
intended that provision to be applied for grant of bail under Section
167(2) of the Code. The purpose of Section 439(1A) of the Code is to
ensure that a victim or a person acting in the interest of the victim
shall also be heard before a decision on a bail application is made. No
doubt, such an opportunity is vital as regards applications under
Sections 437,438 and 439 of the Code, for the same would certainly
aid the court while exercising its discretionary jurisdiction to grant or
refuse bail to the accused under those provisions. However, a
decision on the application for bail under Section 167(2) of the Code
being one taken by the court on the basis of the period of custody
undergone by the accused, compliance of the provision contained in
Section 439(1A) of the Code does not make any difference. Even if it
is held placing reliance on the phraseology used in Section 439(1A) of
the Code that the provision therein is to be followed while granting
bail under Section 167(2) of the Code, it would be an empty formality.
The purpose of Section 167(2) is to protect the liberty of an individual
who has been detained and continues to be detained pending
investigation in a case. It is trite that in matters relating to personal
liberty of an individual, the court must lean in favour of personal
liberty [See Rakesh Kumar Paul v. State of Assam, 2017(4) KLT
284 (SC)]. In the aforesaid circumstances, I am inclined to hold that
the provision contained in Section 439(1A) of the Code does not
apply to an application for bail under Section 167(2) of the Code.
16. Coming to the contention taken by the petitioner
that the impugned order is vitiated by judicial impropriety, in so far
as the final report in the case has been filed after passing of
Annexure – 3 order by this court, according to me, it cannot be said
that the order granting bail can be viewed as an act of judicial
impropriety, for change of circumstances has been held to be a
reason for the accused to seek regular bail before the jurisdictional
court though the application for bail has been rejected by the
superior courts earlier. In Jayaraj, this court observed thus:
“7. When the superior court has refused to grant bail to an
accused on merits of the case and that order remained in force,
judicial discipline and propriety requires the subordinate
criminal court not to entertain an application for bail from such
accused unless the superior court has either permitted the
accused to move again before the subordinate criminal court
or, the case is one covered by the Sub-clause (a) of the proviso
to Section 167(2) of the Code.”
The judgment aforesaid has no application to the facts of the present
case as it is found that the accused is entitled to bail under Section
167(2) of the Code.
In the light of the discussions aforesaid, the Criminal M.C.
is without merits and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
DK
P.B.SURESH KUMAR, J.
----------------------------------------------
Criminal M.C. No.3463 of 2020
-----------------------------------------------
Dated this the 9th day of September, 2020
O R D E R
It is observed that in several matters instituted before
this court where victim anonymity is to be maintained, the identity of
the victim is disclosed directly or indirectly. In some matters, identity is
disclosed in the pleadings and in some others, identity is disclosed in
the documents produced along with the pleadings. It is also observed
that though documents revealing the identity of the victim are
produced in sealed covers in the light of the decision of the Apex Court
in Nipun Saxena and another v. Union of India and others, (2019)
2 SCC 703, there is no system in place to maintain victim anonymity,
once the sealed covers are opened by the court. In the case on hand, it
is observed that the opened cover containing the documents were sent
back to the section and brought back from the section to the court on
the subsequent hearing dates. It is also observed that there is no
system in place for disposal of the documents produced in sealed
covers, after the final disposal of the case. Similarly, it is observed that
the registry is insisting copies of the documents revealing the identity
of the victims to be given to the opposite parties in the matter. There is
no system in place to maintain victim anonymity in such situations.
Needless to say, the procedure in place to maintain victim anonymity is
against the spirit of Section 228A of the Indian Penal Code, Sections
24(5), 33(7) and 37 of the Protection of Children from Sexual Offences
Act, 2012, and the decision of the Apex Court in Nipun Saxena. In the
circumstances, the following directions are issued for future guidelines
for maintaining victim anonymity in the matters instituted before this
court:
1. The criteria for deciding the identity of the victim shall
include the identity of the family of the victim, the school/college of the
victim, the place of work of the victim, the relatives of the victim, the
neighbourhood of the victim and all other information from which the
identity of the victim would be revealed.
2. In all proceedings instituted by or on behalf of the
victim and against them, documents in which the identity of the victim
is disclosed, either required in terms of the rules of the court or
produced by the parties concerned to substantiate their case, shall be
insisted to be filed in a sealed cover.
3. The registry shall designate an officer for the proper
custody of documents produced in sealed covers in cases where victim
anonymity is to be maintained and shall provide to that officer
necessary infrastructure for keeping custody of the documents. Such
officer shall be bound by the highest standards of confidentiality.
4. After the matter is numbered, registry shall forward
the documents received in sealed covers in a self-sealing bag/envelope
of appropriate size, preferably one having a provision for tamper proof
seal as well, or in other similar tamper proof bag/envelope, after
affixing on it a label indicating the particulars of the case under the
signature of the Filing Scrutiny Officer concerned to the designated
officer for custody and that officer shall ensure that the documents are
made available to the court as and when the matters are listed for
hearing.
5. If the self-sealing bag/envelope in which the
documents are kept is opened by the court for perusal of the
documents, after the purposes of the court, the same shall be kept in a
fresh self-sealing bag/envelope and returned to the designated officer,
after affixing on the same a new label indicating the particulars of the
case under the signature of the Court Officer concerned. If the selfsealing
bag/envelope is opened subsequently by the court, the same
procedure directed herein-above shall be repeated.
6. The parties producing documents disclosing the
identity of the victims need not have to keep or give copies of the same to the opposite parties and they need only refer to such documents in their pleadings.
7. If the lawyers appearing against the victims
require/need to peruse the documents in the sealed covers, they shall peruse the same with the permission of the court and if they are permitted by the court to peruse the documents, the documents shall be preserved in the same manner indicated in the preceding directions.
8. These directions shall be in force until replaced by the
Honourable the Chief Justice by appropriate practice instructions.
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