It is of utmost significance to note that none other than the Delhi High Court itself has in a most learned, laudable, landmark and latest judgment titled Saleem vs The State of NCT of Delhi & Anr in Bail Appln 3635/2022 and cited in 2023 LiveLaw (Del) 325 that was pronounced as recently as on April 19, 2023 has issued most commendable directions to its Registry for ensuring that anonymity and confidentiality of the prosecutrix or victim or survivor of sexual offences is strictly maintained in the filings. The Single Judge Bench comprising of Hon'ble Mr Justice Anup Jairam Bhambhani said that the name, parentage, address, social media credentials and photographs of the prosecutrix of victim must not be disclosed including in the memo of parties. It must be noted that the Delhi High Court passed the order while holding that there is no requirement in law to implead the victim of sexual offences as a party to any criminal proceedings instituted by the State or the accused.

At the very outset, this notable judgment sets the ball rolling by first and foremost putting forth in para 1 that:
Does the victim's right to be heard include the obligation to be impleaded as a party-respondent in criminal proceedings? That is the question sought to be addressed by this judgment.

Simply put, the Bench states in para 3 that:
The present petition was filed under section 439 read with section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.'), seeking grant of regular bail in case FIR No. 320/2022 registered under section 376 of the Indian Penal Code, 1860 ('IPC') and under section 4 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act') at P.S.: Jaitpur.

To put things in perspective, the Bench envisages in para 4 that:
On the first date of hearing on 05.12.2022, while issuing notice on the petition, it was observed that the victim in the subject FIR had been made party-respondent in the matter, though her name and particulars had been anonymized or redacted. This, learned counsel for the petitioner said, was done on the specific directions of the Registry of this court. A report in that regard was called from the Registrar (Filing). Vide report dated 05.01.2023, the Registrar cited section 439(1A) Cr.P.C. and Practice Directions dated 24.09.2019 issued by the Delhi High Court, to say that the petitioner was directed to implead the victim as a party-respondent in the present matter in purported compliance and towards implementation of the said statutory provision and the practice directions issued by this court. In addition, the report also said that … previously verbal directions were given by Hon'ble Court that the victim/complainant be arrayed in the Memo of Parties as respondent after hiding the identity of the victim…. Reference was also made to an order made by a Coordinate Bench where the appellant therein was granted permission to implead the complainant as party-respondent. The report also said that the same practice was being followed in all matters being filed in this court relating to victims of sexual offences.

Be it noted, the Bench notes in para 6 that:
The travails and tribulations of victims of crime begin with the trauma of the crime itself …. It was with these words that in Mallikarjun Kodagali (Dead) represented through Legal Representatives vs. State of Karnataka & Ors (2019) 2 SCC 752 cf. paras 2, 9, 74, 75 the Supreme Court highlighted the hurdles that victims face in accessing the criminal justice system after suffering violence visited upon them. The Supreme Court went-on to observe that victims can no longer be sidelined; and held that victims have a right to file an appeal against acquittal of an accused without having to seek leave from the court. (Also cf. Proviso to section 372 Cr.P.C.).

While citing the relevant case law, the Bench observes in para 8 that:
In its recent verdict in Jagjeet Singh & Ors vs. Ashish Mishra alias Monu & Anr (2022) 9 SCC 321 at paras 22, 23 and 24.2, the Supreme Court has accorded specific recognition to the rights of a victim, observing that victims … cannot be expected to be sitting on the fence and watching the proceedings from afar …; that victims have … a legally vested right to be heard at every step post the occurrence of an offence …; (they have) unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision …; and that the mere presence of the State … does not tantamount to according a hearing to a victim of the crime. (emphasis supplied).

Needless to say, the Bench then states in para 9 that:
It is therefore clear, that victims of crime can no longer be asked to remain mere spectators, and must be accorded, in the words of the Supreme Court, unbridled participatory rights in the legal proceedings initiated in relation to the crime alleged to have been committed against them.

Do note, the Bench observes in para 10 that:
On the other hand however, it is also noticed that insofar as sexual offences are concerned, it is the unequivocal statutory mandate interalia in section 228-A IPC, sections 23, 33(7) and 37 of the POCSO Act and sections 327(2) and 327(3) of the Cr.P.C. that the identity of a victim must be kept confidential. Apart therefrom, in its decision in Nipun Saxena vs. Union of India 4 , the Supreme Court has emphasised the requirement of maintaining confidentiality of a victim of a sexual offence, in the widest possible terms, inter-alia in the following words :

11. Neither IPC nor CrPC define the phrase identity of any person. Section 228-A 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.

12. 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.

25. Dealing with Section 327 CrPC in Gurmit Singh case [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384) this Court held as follows:

24. … 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.

* * * * *

50. 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 authorisation 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 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.* * * * * (some emphasis in original; some supplied).

While citing the recent and relevant case laws, the Bench specifies in para 32 that:
In a recent decision in X vs. State of Maharashtra and Anr. 2023 SCC OnLine SC 279 cf. para 40, the Supreme Court had issued directions to its Registry to ensure that in sensitive matters, … if the name of the prosecutrix is revealed in the petition, the same is returned to the learned counsel for redacting the name before the matter is cleared for being placed before the Court for appropriate orders. In another matter, taking exception to the name of the victim being mentioned in the judgment of the sessions court, in its order dated 30.06.2021 made in SLP (Crl) No. 4540/2021 titled Birbal Kumar Nishad vs. State of Chhattisgarh, the Supreme Court has made observations as to the necessity of anonymisation of the names of victims noting that … It is well established that in cases like the present one, the name of the victim is not to be mentioned in any proceeding. We are of the view that all the subordinate courts shall be careful in future while dealing with such cases..

Quite significantly, the Bench enunciates in para 33 that:
Upon a conspectus of the foregoing, this court is persuaded to draw the following conclusions, which it is made clear, are restricted to criminal matters relating to or arising from or concerning sexual offences :

33.1. There is no requirement in law to implead the victim, that is to say, to make the victim a party, to any criminal proceedings, whether instituted by the State or by the accused;

33.2. In accordance with the mandate of the Supreme Court in Jagjit Singh (supra), a victim now has unbridled participatory rights in all criminal proceedings in relation to which the person is a victim, but that in itself is no reason to implead a victim as a party to any such proceedings, unless otherwise specifically so provided in the statute; Section 439(1A) Cr.P.C. mandates that a victim be heard in proceedings relating to bail, without however requiring that the victim be impleaded as a party to bail petitions;

33.3. In light of the decision of the Supreme Court in Jagjit Singh (supra), section 439(1A) Cr.P.C. must now be expanded to include the victim's right to be heard even in petitions where an accused seeks anticipatory bail; a convict seeks suspension of sentence, parole, furlough, or other such interim relief;

33.4. To obviate any ambiguity, though section 439(1A) Cr.P.C. makes the presence of the informant obligatory at the time of hearing, what is clearly mandated thereby is the right of the victim, whether through the informant or other authorised representative, to be effectively heard in the matter. If necessary, legal-aid counsel may be appointed to assist in representing the victim; and the mere ornamental presence of the victim, or their representative, without affording them an effective right of hearing, would not suffice.

Most significantly, the Bench then minces absolutely no words to hold in para 34 that:
Furthermore, as a sequitur to the above, this court issues the following directions:

34.1. It is directed that the Registry must carefully scrutinise all filings relating to sexual offences, to ensure that the anonymity and confidentiality of the prosecutrix/victim/survivor is strictly maintained;

34.2. To be more specific, in order to maintain confidentiality as aforesaid, the following must be done:

34.2.1. The name, parentage, address, social media credentials and photographs of the prosecutrix/victim/survivor must not be disclosed in the filings made in court, including in the memo of parties;

34.2.2. Though, if the foregoing direction is scrupulously followed, the identifying particulars would not appear in the cause-list, by way of abundant caution, the Registry must ensure that such particulars do not get reflected in the cause-list of the court in any manner;

34.2.3. The name, parentage and address of family members of the prosecutrix/victim/survivor — through whom the prosecutrix/victim/survivor could be identified — must not be disclosed in the filings, including in the memo of parties, even if they are accused in the case, since this may indirectly lead to the identification of the prosecutrix/victim/ survivor;

34.2.4. Since redaction of the identifying particulars of the prosecutrix/victim/survivor from the FIR, chargesheet, proceedings before the trial court and other similar records, is the duty and obligation of the authorities/court that prepare such documents; and insofar as the proceedings before this court are concerned, making complete redaction in each of those documents may not be feasible, it is also directed that the files/paper-books/e-portfolio of matters relating to sexual offences filed in this court must not be provided to any person other than the parties to the litigation, to the prosecutrix/victim/survivor and their respective counsel, after due verification of the identity credentials of such persons;

34.2.5. At the stage of scrutiny of the filings, in the event the Registry finds that the identity credentials of a prosecutrix/victim/survivor are disclosed in the memo of parties or anywhere else in the filings, such filings must be returned to counsel who have filed the same, to undertake requisite redactions, before the filings are accepted;

34.2.6. To obviate the dissemination of identifying particulars to any other person or agency even within the High Court, it is further directed that all service to be effected upon the prosecutrix/victim/survivor shall only be through the Investigating Officer in accordance with Practice Directions dated 24.09.2019 and not through the process serving agency, though a copy of the petition or application must be served upon the prosecutrix/victim/survivor;

34.2.7. In effecting service as aforesaid, the Investigating Officer must remain in 'plain clothes' so as to avoid any unwarranted attention;

34.2.8. Furthermore, the Investigating Officer must also inform the prosecutrix/victim/survivor that they have the right to free legal-aid/representation in accordance with the mandate of the Supreme Court in Delhi Domestic Working Women's Forum vs. Union of India & Ors (1995) 1 SCC 14 cf para 15

34.2.9. If the parties wish to cite in court any identifying particulars of the prosecutrix/victim/survivor, including photographs or social media communications etc., such party may bring the same to court in 'sealed cover'; or file the same in 'sealed cover' or in a 'pass-code locked' electronic folder and share the pass-code only with the concerned Court Master.

34.3. The foregoing directions are not intended to be exhaustive; and at the stage of scrutiny, the Registry is expected to apply its mind to any peculiarities of a given case, with the aim and intent of scrupulously applying the directions of the Supreme Court in Nipun Saxena (supra).

34.4. Lastly, the directions issued above may be summarized by way of written instructions/note/notification by the Registrar General of this court; and be circulated to the Principal District & Sessions Judges, Delhi in their respective jurisdictions and to the Commissioner of Police, Delhi.

34.5. The Registrar General is directed to bring this judgment to the notice of Hon'ble the Chief Justice for framing of appropriate practice directions or notice or notification, as may be deemed appropriate, in-line with the mandate with the directions of Nipun Saxena (supra).

As we see, the Bench then hastens to add in para 35 stating that:
This court records its appreciation for the invaluable assistance rendered in the matter by Ms. Rebecca M. John, learned senior counsel as Amicus Curiae.

In sum, the Delhi High Court has very rightly directed the Registry to ensure confidentiality of victims of sexual offences. The Registry must comply with the same accordingly! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh