This article is written by Gurpreet Singh, a student at the Faculty of Law, Delhi University. The article aims to apprise the readers about the rights of the accused and the rights of a victim concerning sexual offenses.
Do you remember Ajmal Kasab? He was a terrorist caught by our braveheart, Tukaram Omble for his involvement in the dastardly terrorist attack that shook the conscience of our nation. Such is the magnanimity of our criminal justice system that we offered a free and fair trial to the terrorist despite pressures from every nook and corner to hang without a trial. Our systems provide certain safeguards to the accused to ensure a fair trial, but what would be the fate of trial when the rights of the victims, especially victims of sexual assault conflict with the rights of the accused. This article is an attempt to contemplate the conflict between two rights through the prism of a case decided by the Hon’ble Supreme Court of India.
Now let us examine the rights guaranteed to the accused and that of the victim to uphold the principle of fairness.
Rights of the accused
Rights before trial
A trial begins after the court has taken cognizance of the matter presented before it. Before the commencement of trial, a plethora of activities has to be undertaken to make it possible for the court to spring into action. It involves conducting investigations, recording statements of witnesses, and evidence collection. It is the sole duty of the police to conduct investigations, bring people into questioning, arresting people on evidence or whims and fancies. These are all decisions of the police department, so to protect the accused from any arbitrariness or high-handedness of the police, protections are being granted to the so-called accused in the eyes of the police.
Under Criminal Procedure Code (C.r.P.c)
- Section 41 A – Under this section the police officer after examining Section 41 concludes that arrest is not necessary, The officer will send a notice to appear before him, the accused shall not be arrested until compliance is being confirmed.
- Section 41D – When a person is arrested, he shall be entitled to an advocate of his choice during interrogation, but not throughout the investigation to grant leeway to the police to conduct investigations.
- Section 46 – Ensures the liberty of individuals enshrined under Article 21 of the Constitution by prescribing that if a person willfully submits to the custody by word or action of the police isn’t required to touch or confine the body of the person to be arrested. Women get further protections under this section by presuming their submission to the police, until and unless contrary circumstances exist. Further, only a female officer can arrest a woman before sunset and after sunrise with certain exceptions.
- Section 50 – Every police officer arresting a person, without a warrant, shall inform the person regarding reasons for arrest. The police officer also has an additional duty to inform the arrested regarding his entitlement to bail.
- Section 50 A – Every police officer must inform the friends, relatives, or any such persons as communicated by the person arrested regarding his arrest and the place where he is being held. Additionally, the police must maintain a record of persons who have been informed regarding the arrest of the arrested person.
- Section 161 – It empowers the police officers (rank as decided by the state government) to examine any person, which he/she is supposed to be acquainted with the facts of the case being investigated. Further subsection 2 requires such a person to answer all those questions that are being put up by the police, except those which indict him in a criminal charge.
- Section 162 – This section states that any statement made to the police officer during investigation shall not be signed by the maker of such statement.
- Section 164 – This section acts as a safeguard against coercion of the police. According to this section, any confession by the accused is only valid if it is made to the judicial or metropolitan magistrate of his free will.
Under the Constitution of India
Article 21 – This article guarantees personal liberty to individuals residing within the territorial refines of the country. Personal liberty can only be confined with regard to the due procedure established by law. In Maneka Gandhi v. Union of India, the Supreme Court held that the procedure should be just fair, and equitable. The arrest of the person confines his liberty, therefore no arbitrary arrests can be made by the police as it will infringe their fundamental right.
Article 22 – Article 21 and 22 are interrelated and interconnected. Article 22(1) lays down that every person arrested shall be made known, the grounds of their arrest. 22(2) lays down that every person arrested shall be presented before the magistrate within 24 hours of such arrest. No one shall spend his time in custody without the consent of the magistrate.
Rights during the trial
Section 54 – This section guarantees medical examination of the accused by the medical officer to ascertain any injuries meted out by the police during the custody of the accused.
Section 303 – This section guarantees the right of the person to choose a pleader of their choice to defend him during the trial.
Section 304 – If the accused does not possess the means to engage a pleader, the court will appoint a pleader out-of-state expenses.
Section 313 – This section grants an opportunity to the accused to explain their side of the story during the trial.
Guaranteed by the Constitution of India
Right to Fair trial – The right to a fair trial has been enunciated from Article 21 of the constitution. Personal liberty cannot be compromised without a gist of fairness, In Mohamed Hussain @ Julfikar Ali v State of (Govt of NCT), it was held by the Supreme Court that every person has the right to have a fair trial as guaranteed by Article 21 of the Constitution, denying a fair trial will deny a person his liberty.
Article 20(2) – It guarantees no person shall be prosecuted for the same offense twice.
Rights of victims
Under C.R P.C
Section 357 – A victim of a crime faces not only physical trauma but undergoes mental trauma and many more challenges that cannot be comprehended by us sitting in the comfort of our living rooms. To increase the focus on victims, section 357 empowers the court to grant compensation to the victim for covering the expenses of litigation and any other expenses required to cover the losses suffered by the victim.
Section 302 – This provision empowers the victim or their advocate to conduct prosecution in a magistrate’s court, only with the permission of the magistrate. In Amir Hamza Shaikh V State of Maharashtra, it was held that the magistrate is not bound to grant permission to the victim to conduct prosecution at the mere asking, but the victim has the right to assist the court in a trial before the magistrate.
Under the Constitution of India
Right to Fair Trial – The right to a fair trial is not only available to the accused but to the victim as well. In the case of Zahia Habibullah Sheikh v. the State of Gujarat, it was held that the denial of a fair trial is as much injustice to the accused as is to the victim and the society. In this case, the victim retracted her statement due to pressure from the politicians, and the accused were acquitted. Later, she approached the Supreme Court through the National Human Rights Commission under Article 32 and contended that a fresh trial should be conducted, due to undue influences being exerted during the trial. The Supreme Court, considering the facts and circumstances of the case, in its wisdom, ordered a retrial.
Rights of survivors of sexual abuse
In a country like ours where honor is related to the chastity of women, it is incredibly difficult for the victims to approach the criminal justice system without being ostracized by society. They require protection and some kind of privacy to be able to fight the legal battle. To provide some kind of privacy to the victims of sexual assault, Section 228A of the Indian Penal Code (IPC) prohibits anyone from publishing the name of the sexual assault victim, until and unless it is published as a part of crime investigation or with the express consent of the kin of the victim. The Supreme Court in the case Nipun Saxena v. Union of India issued certain guidelines regarding the protection of the identity of the victim in sexual assault cases. the guidelines are as follows:-
- No person can print or publish in print, electronic, social media, etc the name of the victim or even disclose any fact that can lead to the victim being identified and eventually lead to her identity being revealed.
- In unfortunate cases where the victim is dead or of unsound mind the name of the victim should not be revealed even when authorized by the next of kin unless compelling circumstances exist which require the reveal of identity, the compelling circumstances would be adjudged by the sessions judge.
- FIRs relating to the offenses under Section 376,376A, B, C, D, DA, DB, E of IPC (Indian Penal Code) and offenses under POCSO (Prevention of children from sexual offenses) shall not be put in a public domain.
- In cases where the victim appeals under section 372 C.R.PC, it is not essential;l to the victim to disclose her identity.
- The police officials should keep all the documents in which the name of the document is disclosed, as far as possible in a sealed cover and replace these documents with identical documents in which the name of the victim is removed in all records which may be scrutinized in the public domain.
- All the authorities to which the name of the victim is disclosed by the investigating agency or the court are duty-bound to keep the name of the identity of the victim secret.
- In the case of minor victims under POCSO, disclosure of their identity can only be permitted by the special court, if and only if such disclosure is in the interest of the child.
The conflict between the identity of the victim and the rights of accused
Section 207 of the C.R.P.C rules that the magistrate shall provide documents such as a copy of the police report, the First information report, the statements recorded under s. 161 of the C.R.P.C of all persons whom the prosecution intends to examine as witnesses, the confessions, and any other relevant document attached to the police report to the accused. The second proviso mentioned in the section grants power to the magistrate to withhold access to the document, if it is voluminous but can allow the accused to examine the document in court.
Now, an interesting aspect came to light in the case P Gopalkrishnan @ Dileep v. State of Kerala and Anr. The Supreme Court was privy to a question to balance the rights of the accused and the rights of victims in sexual assault cases. In this case, the allegation against the accused of sexual assault, and there was a pen drive which contained videos of the incident, the accused wanted to inspect the video under section 207 of C.R.P.C.The trial court ruled in favor of the victim and opined that providing the pen drive would infringe upon the dignity of the victim. The Kerala High Court also agreed with the trial court. The Supreme Court held that supplying a copy of the video to the accused could be subject to grave misuse that would infringe upon the right of dignity to the victim. The court took a balanced approach and allowed the accused to examine the video within the court premises and consult independent agencies regarding the veracity of the video. The court carved out an exception owing to the sensitivity of the matter. What would be the criteria for carving out exceptions in further cases is yet to be witnessed.
With no victim and witness protection schemes in place, as suggested by the 198th law commission report, fighting a legal battle is tilted towards the accused. Fighting sexual assault cases is, even more, cumbersome as survivors face ostracisation from society at large. Certain mechanisms such as in-camera proceedings, allowing filing of rape complaints in anonymity should be mulled over to bend the system towards justice as Archbishop of Canterbury, William temple quotes – “I can’t say, I know much about the law, having been far more interested in Justice.”
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