Delhi High Court
Laxmi Narayan vs State Nct Of Delhi on 23 August, 2024
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 23.08.2024
+ BAIL APPLN. 2740/2023
LAXMI NARAYAN ..... Petitioner
Through: Mr. Ravi Mehta, Ms. Priyanka Singh,
Mr. Rajat Kanojia, Mr. Rahul Kumar
Saxena, Ms. Nikha Kanojia, Mr.
Satpal Yadav and Mr. Priyank
Chauhan, Advs.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Ritesh Kumar Bahri, APP for
State with ACP Richpal Singh and
Insp. Mahipal Singh, PS. ISC/Crime
Branch, PS. Chanakayapuri, Delhi.
Mr. Mehmood Pracha, Mr. Jatin
Bhatt, Mr. R.H.A. Sikander, Mr.
Sanawar and Mr. Mohd. Shameem,
Advs. for victim
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.
1. Whether it is mandatory to video record the present bail proceedings
in terms of Section 15A(10) of the Scheduled Castes and Schedules Tribes
(Prevention of Atrocities) Act, 1989, [in short ‘the Act’] arising out of a
Signature Not Verified BAIL APPLN. 2740/2023 Page 1 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
criminal case relating to the offences under the Act, is the short question to
be considered in the present judgment.
2. To put the entire discussion that is to follow into context, it is apposite
to reproduce at the outset the relevant extract of Section 15A(10) of the Act,
which reads as under:
“15A. Rights of victims and witnesses.–(1) It shall be the duty
and responsibility of the State to make arrangements for the
protection of victims, their dependents, and witnesses against
any kind of intimidation or coercion or inducement or violence
or threats of violence.
xxxx xxxx xxxx xxxx
(3) A victim or his dependent shall have the right to
reasonable, accurate, and timely notice of any Court
proceeding including any bail proceeding and the Special
Public Prosecutor or the State Government shall inform the
victim about any proceedings under this Act.
xxxx xxxx xxxx xxxx
(5) A victim or his dependent shall be entitled to be heard at
any proceeding under this Act in respect of bail, discharge,
release, parole, conviction or sentence of an accused or any
connected proceedings or arguments and file written
submission on conviction, acquittal or sentencing.
(6) Notwithstanding anything contained in the Code of Criminal
Procedure,1973 (2 of 1974), the Special Court or the Exclusive
Special Court trying a case under this Act shall provide to a
victim, his dependent, informant or witnesses–
(a) the complete protection to secure the ends of justice;
(b) the travelling and maintenance expenses during
investigation, inquiry and trial;
Signature Not Verified BAIL APPLN. 2740/2023 Page 2 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
(c) the social-economic rehabilitation during investigation,
inquiry and trial; and
(d) relocation.
(7) The State shall inform the concerned Special Court or the
Exclusive Special Court about the protection provided to any
victim or his dependent, informant or witnesses and such Court
shall periodically review the protection being offered and pass
appropriate orders.
(8) Without prejudice to the generality of the provisions of sub-
section (6), the concerned Special Court or the Exclusive
Special Court may, on an application made by a victim or his
dependent, informant or witness in any proceedings before it or
by the Special Public Prosecutor in relation to such victim,
informant or witness or on its own motion, take such measures
including–
(a) concealing the names and addresses of the witnesses in
its orders or judgments or in any records of the case
accessible to the public;
(b) issuing directions for non-disclosure of the identity and
addresses of the witnesses;
(c) take immediate action in respect of any complaint
relating to harassment of a victim, informant or witness and
on the same day, if necessary, pass appropriate orders for
protection:
Provided that inquiry or investigation into the complaint
received under clause (c) shall be tried separately from the
main case by such Court and concluded within a period of two
months from the date of receipt of the complaint:
Provided further that where the complaint under clause (c) is
against any public servant, the Court shall restrain such public
servant from interfering with the victim, informant or witness,
as the case may be, in any matter related or unrelated to the
pending case, except with the permission of the Court.
(9) It shall be the duty of the Investigating Officer and the
Station House Officer to record the complaint of victim,
informant or witnesses against any kind of intimidation,Signature Not Verified BAIL APPLN. 2740/2023 Page 3 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
coercion or inducement or violence or threats of violence,
whether given orally or in writing, and a photocopy of the First
Information Report shall be immediately given to them at free of
cost.
(10) All proceedings relating to offences under this Act shall
be video recorded.
(11) It shall be the duty of the concerned State to specify an
appropriate scheme to ensure implementation of the following
rights and entitlements of victims and witnesses in accessing
justice so as–
(a) to provide a copy of the recorded First Information
Report at free of cost;
(b) to provide immediate relief in cash or in kind to atrocity
victims or their dependents;
(c) to provide necessary protection to the atrocity victims or
their dependents, and witnesses;
(d) to provide relief in respect of death or injury or damage
to property;
(e) to arrange food or water or clothing or shelter or
medical aid or transport facilities or daily allowances to
victims;
(f) to provide the maintenance expenses to the atrocity
victims and their dependents;
(g) to provide the information about the rights of atrocity
victims at the time of making complaints and registering the
First Information Report;
(h) to provide the protection to atrocity victims or their
dependents and witnesses from intimidation and
harassment;
(i) to provide the information to atrocity victims or their
dependents or associated organisations or individuals, on
the status of investigation and charge sheet and to provide
copy of the charge sheet at free of cost;
(j) to take necessary precautions at the time of medical
examination;
Signature Not Verified BAIL APPLN. 2740/2023 Page 4 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
(k) to provide information to atrocity victims or their
dependents or associated organisations or individuals,
regarding the relief amount;
(l) to provide information to atrocity victims or their
dependents or associated organisations or individuals, in
advance about the dates and place of investigation and
trial;
(m) to give adequate briefing on the case and preparation
for trial to atrocity victims or their dependents or associated
organisations or individuals and to provide the legal aid for
the said purpose;
(n) to execute the rights of atrocity victims or their
dependents or associated organisations or individuals at
every stage of the proceedings under this Act and to provide
the necessary assistance for the execution of the rights.
(12) It shall be the right of the atrocity victims or their
dependents, to take assistance from the Non-Government
Organisations, social workers or advocates.”
(emphasis supplied)
3. The petitioner has filed the present petition seeking regular bail under
Section 439 CrPC in connection with FIR No.0261/2021 under Sections
302/304/376/342/506/201/34 IPC, Section 6 of POCSO Act and Section 3 of
the SC/ST Act registered at Police Station Delhi Cantt, South-West, Delhi.
A similar bail application of the petitioner filed under Section 439 CrPC was
rejected by the Court of learned ASJ-01 (POCSO), Patiala House Courts,
New Delhi vide order dated 08.06.2023.
4. Mr. Mehmood Pracha, the learned counsel appearing on behalf of the
complainant at the outset has made a submission that in view of sub-section
(10) of Section 15A of the Act, all proceedings relating to offences under the
Act, including the present one, are to be video recorded.
Signature Not Verified BAIL APPLN. 2740/2023 Page 5 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
5. Elaborating on his submissions, he submits that term ‘victim’ has
been defined under Section 2(1)(ec) of the Act to mean – “any individual
who falls within the definition of the Scheduled Castes and Scheduled Tribes
under clause (c) of sub-section (1) of section 2, and who has suffered or
experienced physical, mental, psychological, emotional or monetary harm
or harm to his property as a result of the commission of any offence under
this Act and includes his relatives, legal guardian and legal heirs.”
6. He contends that as in the present case, the minor daughter of the
complainant was raped and murdered by the accused persons and for the
reason that the complainant belongs to the Scheduled Caste community, he
is a victim within the meaning of Section 2(1)(ec) of the Act. Further, as
some of the offences invoked in the present case are under the Act as well,
the provisions of Section 15A(10) of the Act will apply to the present bail
proceedings and it is obligatory to video record the same.
7. To buttress his contention, he has referred to the Statement of Objects
and Reasons of the Amending Act 1 of 2016 whereby the Act was amended
to insert Chapter IVA in the Act, to contend that the amendment has been
brought about to outline in greater detail and strengthen the public
accountability provisions under the Act. He submits that the title of Chapter
IVA of the Act, as well as, caption of Section 15A is – ‘Rights of victim and
witnesses’ thus, it is the right of a victim as defined under Section 2(1)(ec) to
seek video recording of the proceedings and the same needs to be protected.
8. In support of his submission, Mr. Pracha has relied on a decision of
the High Court of Bombay in Dr. Hema Suresh Ahuja and Others vs. State
of Maharashtra and Another, 2024 SCC OnLine Bom 784 as well as on a
Signature Not Verified BAIL APPLN. 2740/2023 Page 6 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
decision of Kerala High Court in State of Kerala vs. Nowfal, Crl. M.C. No.
3970 of 2021.
9. Per contra, Mr. Ritesh Kumar Bahri, learned APP for State has relied
on a decision of the Hon’ble Supreme Court in Nipun Saxena and another
vs. Union of India and others, (2019) 2 SCC 703, to submit that in the said
decision it has been specifically held by the Hon’ble Supreme Court that no
person can print or publish in print, electronic, social media, etc., the name
of the victim under the POCSO Act or even in a remote manner disclose any
fact which can lead to the victim being identified and which should make
her identity known to public at large.
10. He also refers to Section 23 of the POCSO Act and Section 228A
IPC, which in effect punish the disclosure of the identity of the victim of
sexual offences, to submit that the said provisions will override the
provision of Section 15A(10) of the Act.
11. In this backdrop, he contends that the bail proceedings in the present
case which involves offences under the POCSO Act as well, need not be
video recorded. He has placed reliance on a decision of the High Court of
Sikkim at Gangtok in Subash Chandra Rai vs. State of Sikkim, 2018 SCC
OnLine Sikk 29 as well as on a decision of a coordinate bench of this Court
in Saleem vs. State of NCT of Delhi & Anr., 300 (2023) DLT 714, to
submit that the identity of victim under the POCSO Act should not be
disclosed in any manner, whatsoever.
12. Similar argument has been put forth by the learned counsel for the
petitioner / accused.
13. In rejoinder, Mr. Pracha submits that the argument advanced by the
prosecution and by the learned counsel for the accused that Section 23 of the
Signature Not Verified BAIL APPLN. 2740/2023 Page 7 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
POCSO Act and Section 228A IPC will override the provision of Section
15A(10) of the Act, is not tenable for the following reasons, firstly, Section
15A(10) speaks only of video recording of the proceedings and does not, at
all, say anything about publication of video recording, or even supply of
such recording to any person. Secondly, Section 23 of the POCSO Act and
Section 228A IPC are, in fact, in the nature of safeguard to protect the
identity of the victim of sexual offence, which will apply to the video
recordings under Section 15A(10) of the Act, with equal force.
14. He submits that such video recording cannot be provided to any
person other than the victim. Therefore, it is his submission that identity of
the victim remains protected even if the proceedings are video recorded. He
further adds there is no conflict between the provisions of Section 15A(10)
of the Act on one hand and Section 23 of the POCSO Act and Section 228A
IPC on the other hand. He places reliance on the decisions in Sarwan Singh
& Anr v. Kasturi Lal 1977 (1) SCC 750 and Ajoy Kumar Banerjee & Ors.
v. Union of India & Ors., 1984 (3) SCC 127, to contend that the need for
resolution of a conflict between two statutes arises only when there is an
actual conflict between the provisions and when the provisions operate in
the same field, which is not a case here.
15. He submits that in any case, Section 20 of the Act provides for an
overriding effect over other laws. He also places reliance on the
observations of the Hon’ble Supreme Court in Solidaire India Ltd. v.
Fairgrowth Financial Services, (2001) 3 SCC 71, to contend that it is trite
law that when two enactments contain non-obstante clauses, the provision
enacted later in time would prevail. Elaborating further, he submits that
Section 15A(10) of the Act was introduced by an amendment in the year
Signature Not Verified BAIL APPLN. 2740/2023 Page 8 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
2016, thus, the Legislature was aware about the provisions of Section 228A
IPC and Section 23 of the POCSO Act, which were introduced/enacted in
the years 1983 and 2012, respectively.
16. Dilating further, Mr. Pracha has also drawn attention of the Court to
the provisions of Section 3(1)(w) and Section 3(2)(va) of the Act to submit
that the legislature intended compliance of Section 15A(10) in respect of
sexual offences under the Act, as well as, the IPC involving female victims
whose identity, under the law, is required to be protected.
17. He thus, urges that Section 15A(10) makes abundantly clear that the
video recording the proceedings is mandatory.
18. I have heard the learned counsel for the complainant, learned APP for
the State as well as the learned counsel for the accused.
19. Undisputedly, the deceased as well as complainant, who is father of
the deceased, were/are from the Scheduled Caste community. Further, some
of the offences which have been invoked in the FIR are also under the Act.
It is in this factual backdrop that the moot question as noted in opening part
of the judgment assumes relevance. To be noted that after hearing arguments
of both sides, the judgment was reserved by this Court only confined to the
said question.
20. To find an answer to above question that still looms large, it needs to
be noticed that preamble of the Act provides that it was enacted to prevent
the commission of offences of atrocities against the members of the
Scheduled Castes and the Scheduled Tribes, to provide for special courts
and the exclusive special courts for the trial of such offences and for the
relief and rehabilitation and the victims of such offences and for matters
connected therewith or incidental thereto.
Signature Not Verified BAIL APPLN. 2740/2023 Page 9 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
21. Later, taking into account that the atrocities against the members of
the Scheduled Castes and Scheduled Tribes have continued at a disturbing
level and the existing provisions of the Act were found to be inadequate to
deal with the same, the legislature amended the Act in the year 2016. By
virtue of said amendment, Section 14 and 15 were substituted whereas new
Section 14A was inserted in Chapter IV. Likewise, a new Chapter IVA was
introduced which contains Section 15A.
22. It is apposite at this stage to refer to relevant extract from the
Statement of Objects and Reasons of the Amending Act of 2016, which
reads as under:
“Statement of Objects and Reasons. – The Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was
enacted with a view to prevent the commission of offences of
atrocities against the members of the Scheduled Castes and
Scheduled Tribes and to establish Special Courts for the trial of
such offences and for providing relief and rehabilitation of the
victims of such offences.
2. Despite the deterrent provisions made in the Act, atrocities
against the members of the Scheduled Castes and Scheduled
Tribes continue at a disturbing level. Adequate justice also
remains difficult for a majority of the victims and the witnesses,
as they face hurdles virtually at every stage of the legal process.
The implementation of the Act suffers due to (a) procedural hurdles
such as non-registration of cases; (b) procedural delays in
investigation, arrests and filing of charge-sheets; and (c) delays in
trial and low conviction rate.
3. It is also observed that certain forms of atrocities, known to be
occurring in recent years, are not covered by the Act. Several
offences under the Indian Penal Code, other than those already
covered under section 3(2)(v) of the Act, are also committed
frequently against the members of the Scheduled Castes and the
Scheduled Tribes on the ground that the victim was a member of aSignature Not Verified BAIL APPLN. 2740/2023 Page 10 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
Scheduled Caste and Scheduled Tribe. It is also felt that the public
accountability provisions under the Act need to be outlined in
greater detail and strengthened.
xxxx xxxx xxxx xxxx
5. It is, therefore, proposed to amend the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 by the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Amendment Bill, 2014 which, inter alia, provides the
following, namely:–
(a) xxxxx
xxxxx xxxxx xxxxx xxxxx
(h) to insert a new Chapter IVA relating to “Rights of Victims
and Witnesses” to impose certain duties and responsibilities upon
the State for making necessary arrangements for protection of
victims, their dependents and witnesses against any kind of
intimidation, coercion or inducement or violence or threats of
violence.”
(emphasis supplied)
23. Reading of sub-section (3)1 of Section 15A of the Act shows that it
has been made obligatory on part of the Court, as well as, the Special Public
Prosecutor / State Government to put the victim to notice about the
proceedings under the Act including any bail proceeding. Likewise, under
sub-section (5)2 of Section 15A, the victim or his dependent also have a
right to be heard at any proceedings under the Act in respect of bail. Clearly,
1
15(3) A victim or his dependent shall have the right to reasonable, accurate, and timely notice
of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the
State Government shall inform the victim about any proceedings under this Act.
2
15(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act
in respect of bail, discharge, release, parole, conviction or sentence of an accused or any
connected proceedings or arguments and file written submission on conviction, acquittal or
sentencing.
Signature Not Verified BAIL APPLN. 2740/2023 Page 11 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
the expression proceeding(s) in the above provisions has been used in the
context of bail. If the provision of sub-section (10)3 of Section 15A of the
Act is seen in this backdrop, the reference to the expression ‘proceedings’
therein will undoubtedly include the ‘proceedings’ in respect of bail, both
before the learned Special Court and the High Court, whether under Section
14A of the Act or under Section 439 CrPC. Further, use of prefix ‘all’
before the expression “proceedings” shows the intention of the legislature
to give widest amplitude to the applicability of sub-section (10) of Section
15A. The expression ‘All proceedings’ is followed by the expression
“relating to offences under the Act”, which also emphasize the intention of
the legislature to give wider applicability to the provisions of Section
15A(10). The expressions “in relation to”, “pertaining to” and “concerning
with” have been held to be the expressions of expansion and not of
contraction.4
24. The Statement of Objects and Reasons of the Amending Act also
makes abundantly clear that amendment to the Act was brought about as it
was felt that the public accountability provisions under the Act need to be
outlined in greater detail and strengthened. At the same time certain duties
and responsibilities have been imposed upon the State for making necessary
arrangements for protection of victims, their dependants and witnesses.
Clearly, the newly introduced Chapter IVA and Section 15A have been
enacted for the benefit of the victims, their dependants and witnesses
belonging to the Scheduled Castes and Scheduled Tribes, therefore, it is a
social piece of legislation and its provisions have to be liberally and
3
15(10) All proceedings relating to offences under this Act shall be video recorded.
4
[Ref. Doypack Systems (P) Ltd. Vs. Union of India, (1988) 2 SCC 299].
Signature Not Verified BAIL APPLN. 2740/2023 Page 12 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
meaningfully construed so as to advance the objects of the Act, as well as,
the cause of public at large. A reference in this regard may be had to the
decision in UPSEB vs. Shiv Mohan Singh, (2004) 8 SCC 402.
25. Besides, it is a settled rule of interpretation that if the language of a
statutory provision is unambiguous, it is to be interpreted according to the
plain meaning of the said statutory provision. In the present case, the
language of the provision of Section 15A(10) is clear and admits of no
ambiguity, thus, expression “all proceedings relating to the offences under
this Act” will include the bail proceedings before the Special Court, as well
as, before the High Court in relation to the offences under the Act.
26. I am supported in my view by a decision of the High Court of
Bombay in Dr. Hema Suresh Ahuja (supra). In the said decision, the
Division Bench of Bombay High Court was requested to answer the
following questions referred by the learned Single Judge, in view of the
conflicting opinion of two co-ordinate benches:
“(1) Whether proceeding under 15A(10) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 would
amount to a judicial proceeding as contemplated under
section 2(i) of the Criminal Procedure Code, 1973?
(2) Whether it would be necessary to video record any
proceeding relating to the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, especially when the
proceedings are held in open court, as contemplated under
section 327 of the Criminal Procedure Code, 1973 and what
would be the objective to be achieved?
(3) Whether hearing of a bail application under section 14A of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is a judicial proceeding as contemplated
under section 15A of the said Act?
Signature Not Verified BAIL APPLN. 2740/2023 Page 13 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
(4) Whether section 15A (10) of the said Act could be
implemented in the absence of rules framed under the Act or
formulation of a scheme for implementation?”
27. In the light of objects and reasons of the Amending Act and the
language employed in Section 15A(10) of the Act, the Division Bench of the
High Court of Bombay observed as under:
“23. For deciphering the true purport of Chapter IV-A, the
statement of Objects and Reasons of the Amending Act 1 of 2016
mentions that it was felt that the public accountability provisions
under the Act need to be outlined in greater detail and
strengthened. If the provisions in Section 15-A under Chapter IV-A
are read in the light of the Objects and Reasons of the Amending
Act, they clearly indicate that all these provisions are made to
achieve that particular object besides achieving other objects of
the Amending Act. The video recording of the proceedings
relating to the offences under the Atrocities Act would certainly
ensure public accountability in respect of those proceedings. This
will ensure that victims and witnesses have adequate briefing on
the case and preparation for trial. The information would be
available to the organizations and individuals who are providing
legal aid to the victim and their dependents. Under Section 15-
A(12), it is the right of the victims of atrocity or their dependents
to take assistance from the Non-Government Organizations,
social workers or Advocates. In many cases, the victims may not
be fully aware of the legal procedures or their implications and,
thus, in that case the video recording would facilitate all those
who can help the victim to understand the nature of proceedings
and details of the facts and the legal aspects of those cases. Thus,
sub-section (10) of Section 15-A of the Atrocities Act does not
operate in isolation but it encompasses the other provisions and it
facilitates their effective implementation.
24. Section 20 of the Atrocities Act provides that the provisions of
the Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in force or
any custom or usage or any instrument having effect by virtue ofSignature Not Verified BAIL APPLN. 2740/2023 Page 14 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
such law. The video recording of all the proceedings are
specifically provided under this Act. This, being a special
procedure, has to be followed irrespective of any other procedure
provided under any other law.
xxxx xxxx xxxx
41. In these circumstances, we are also inclined to hold that
Section 15-A(10) of the Atrocities Act is mandatory and not
directory.”
(emphasis supplied)
28. A similar view has been taken by the High Court of Kerala in Nowfal
(supra). In the said case, during the proceedings of bail a request was made
by the prosecution to video record the proceedings before the Special Court,
which was rejected by the Special Court. However, on petition being
preferred by the State, the High Court observed thus:
“8. The SC/ST Act has been enacted by the Parliament to
effectuate a salutary public purpose of achieving the fulfilment
of constitutional rights of the Scheduled Castes and Scheduled
Tribes. S.15A which comes under Chapter IVA of the SC/ST Act
titled “Rights of Victims and Witnesses”, was introduced by
way of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Amendment Act, 2015, which came into effect on
26th January, 2016. The statement of objects and reasons that
accompanied the insertion of Chapter IVA reads as follows:
“(h) to insert a new Chapter IVA relating to “Rights of
Victims and Witnesses” to impose certain duties and
responsibilities upon the State for making necessary
arrangements for protection of victims, their dependents
and witnesses against any kind of intimidation, coercion
or inducement or violence or threats of violence”.
9. S.15A of the SC/ST Act contains important provisions that
safeguards the rights of the victims of caste based atrocities and
witnesses. It makes sure that the victims of atrocities are treated
Signature Not Verified BAIL APPLN. 2740/2023 Page 15 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
with fairness, respect and dignity. Sub-section (10) of S.15A
specifically says that all proceedings relating to the offences
under this Act shall be video recorded. It comes under the
Chapter “Rights of the Victims and Witnesses”. Thus, the term
“all the proceedings” found in Sub-section (10) includes court
proceedings as well. Sub-section (10) of S.15A of the SC/ST
Act confers statutory right on the victim to get all the
proceedings relating to the offences under the Act to be video
recorded. The rejection of the request of the
victim/prosecution to video-record the court proceedings
would go against the legislative mandate which specifies the
rights of the victim and witnesses.”
(emphasis supplied)
29. Now adverting to the submission that the proceedings in relation to
sexual assault under IPC and the POCSO Act ought not to be recorded to
protect the identity of the victim it may be noted that Section 228A of IPC
provides punishment for the act of disclosing the identity of the victim of
certain offences like Sections 376, 376A, 376AB, 376B, 376C, 376D,
376DA, 376DB or 376E. Likewise, Section 23 of the POCSO Act also
emphasizes on safeguarding the identity of the child victim who has been
sexually abused. Incidentally, Section 15A(10) while providing that all
proceedings under the Act shall be video recorded makes no reference to the
dissemination of such recording to anyone, which means that the recording
is to be preserved for the usage of Court. If at all such recording is to be
provided to the victim, his/her advocate or to the Non-Government
Organisations, social workers for the purpose of their use in the proceedings
under the Act, it need not be given unless specifically ordered by the Court.
30. Thus, the identity and anonymity of the victim in terms of Section
228A of IPC and Section 23 of the POCSO Act can be safeguarded and
ensured while video recording the bail proceedings under Section 15A(10)
Signature Not Verified BAIL APPLN. 2740/2023 Page 16 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
of the Act. Further, having regard to the nature of offence involved, the
Court may resort to in camera proceedings in terms of Section 37 of the
POCSO Act or Section 327(2) of the Code of Criminal Procedure, 1973 or
under the equivalent provisions of Bharatiya Nagrik Suraksha Sanhita, 2023,
as the case may be, to protect the privacy and identity of the victim.
31. There is another angle from which the controversy at hand can be
approached. Section 3(1)(w)5 of the Act provides for punishment for the
offense of touching in a sexual manner a woman belonging to a Scheduled
Caste or Scheduled Tribe and also punishes the use of words, acts, or
gestures of a sexual nature towards a woman belonging to a Scheduled Caste
or Scheduled Tribe. Likewise, Section 3(2)(va)6 of the Act takes within its
sweep the IPC offences including those under Sections 376, 376A, 376AB,
376B, 376C, 376D, 376DA, 376DB or 376E against victim belonging to
Scheduled Caste / Scheduled Tribe community. The legislature has not
carved out any exception in Section 15A(10) of the Act for the sexual
offences made punishable under Section 3(1)(w) and Section 3(2)(va). It is
5
3. Punishments for offences of atrocities.–(1) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe,–
xxxx xxxx xxxx
(w) (i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that
she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and
is without the recipient’s consent;
(ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a
Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe.
xxxx xxxx xxxx
shall be punishable with imprisonment for a term which shall not be less than six months but which may
extend five years and with fine.
6
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,–
xxxx xxxx xxxx
(va) commits any offence specified in the Schedule, against a person or property, knowing that such
person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member,
shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such
offences and shall also be liable to fine;
Signature Not Verified BAIL APPLN. 2740/2023 Page 17 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
thus, amply clear that the legislature intended compliance of Section
15A(10) in respect of sexual offences committed under the Act as well as
under IPC involving female victims whose identity, under the law, is
required to be protected.
32. Clearly, there is no inconsistency between the provisions of recording
of the bail proceedings to protect the rights of the victims under Section
15A(10) of the Act on one hand and Section 228A of IPC and Section 23 of
the POCSO Act on the other hand.
33. This view is fortified by a decision of the High Court of Kerala in
Nowfal (supra) wherein it has been held that even in case of sexual assault
of a victim under the Act, the anonymity of the victim can be adequately
protected and safeguarded during the video recording under Section 15A
(10) of the Act by employing strategies like giving dummy names to the
victims, face masking or pixelation of face etc. Moreover, the video
recording will be maintained exclusively for usage by the Courts. The
relevant extract from the decision reads thus:
“10. One of the reasons shown by the Court below to reject the
application is that since the offences alleged involve Section
376 of IPC as well, the trial has to be conducted in camera. The
Court has also raised security concerns stating that there are
no adequate facilities at the court for keeping such records and,
thus, there is a possibility of leaking out the same.”
11. Sub-section (2) of S.327 of Cr.P.C, which provides that
trial of rape or an offence u/s 376 of IPC shall be conducted
in camera, is intended to protect the anonymity of the victim.
Subsection (10) of S.15A is also intended to protect the
interest of the victim. As such, if a victim makes a request to
video-record the court proceedings relating to the offences
under SC/ST Act invoking Sub-section (10) of Section 15A, it
Signature Not Verified BAIL APPLN. 2740/2023 Page 18 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04
cannot be turned down on the ground that the offences
charged against the accused involve sexual offences fall under
Section 327(2) of Cr.P.C. as well. The anonymity of the victim
in such cases can be adequately protected and safeguarded in
the recordings via dummy names, face masking or pixelation
as and when directed by the Court. The recording shall be
maintained for usage by the Court and the appellate Court
and access to the recording need not be given to the victim or
the accused unless specifically ordered by the Court.”
(emphasis supplied)
34. The upshot of the above discussion is that the provisions of Section
15A(10) of the Act are mandatory and the present bail proceedings will have
to be video recorded.
35. It is, however, clarified that this judgment will not affect the cases in
which proceedings in terms of Section 15A(10) of the Act have not been
video recorded and it will take effect prospectively.
36. List the bail application before the Roster Bench on 04.09.2024.
VIKAS MAHAJAN, J.
AUGUST 23, 2024
N.S. ASWAL
Signature Not Verified BAIL APPLN. 2740/2023 Page 19 of 19
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.09.2024
20:26:04