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IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

SMW (CRL.) No(s).04 OF 2019

IN RE : ASSESSMENT OF THE CRIMINAL JUSTICE SYSTEM IN RESPONSE TO SEXUAL OFFENCES           Petitioner (s)

VERSUS

Respondent (s)

O R D E R  

1. Post Nirbhaya incident, which shocked the conscience

of the nation, many amendments were introduced in criminal

law  redefining  the  ambit  of  offences,  providing  for

effective and speedy investigation and trial.  Still, the

statistics would reveal that desired results could not be

achieved.   As  per  the  latest  report  of  National  Crime

Records Bureau of Crime in India in the year 2017, total

32,559 cases of rape were registered in India.    

2. The  delay  in  such  matters  has,  in  recent  times,

created agitation, anxiety and unrest in the minds of the

people. The Nirbhaya case is not an isolated case where it

has taken so long to reach finality.  In fact, it is said

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that it has been one of the cases where agencies have acted

swiftly taking into account the public outrage.  

3. We are, therefore, of the view that it is necessary to

take stock of the implementation of provisions of criminal

law, including the said amendments, relating to rape cases

and other sexual offences. It is necessary to call for

information  with  regard  to  status  of  affairs  at  ground

level from various dutyholders like investigation agencies,

prosecution,  medico-forensic  agencies,  rehabilitation,

legal aid agencies and also Courts to get a holistic view

to make criminal justice system responsive in the cases of

this nature.   

4. The criminal law is set into motion by registration of

the FIR. Section 154 of the Cr.P.C. provides about the

information in cognizable cases and in effect registration

of First Information Reports. The first Proviso to the sub-

Section (1) of Section 154 inserted by the Amendment Act of

2013 and subsequently amended by the Amendment Act of 2018,

provides for registration of First Information Report in

cases of rape and sexual offences by a woman police officer

or any woman officer.  It is further provided that if the

victim is temporarily or permanently mentally or physically

disabled,  the  first  information  shall  be  recorded  by  a

police officer, at the residence of the person seeking to

report  such  offence  or  at  a  convenient  place  of  such

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persons choice, in the presence of a special educator or an

interpreter and the recording of such information may be

videographed.   It is also provided that the police officer

shall  get  the  statement  of  such  person  recorded  by  a

Judicial Magistrate under Section 164, as soon as possible.

5. As law laid down in the case of  Lalita Kumari v.

Government of U.P., (2014) 2 SCC 1, the police is dutybound

to register the offence based upon the information given by

the victim/informant in case of cognizable offence.  

In  addition  to  this,  the  statements  of  the  victim

under Section 161 are required to be recorded by a woman

police officer or any woman officer.  

Thus, we consider it appropriate to call for status

report with regard to the following: -

(1) whether  all  the  Police  Stations  have  a  woman

police officer or woman officer to record the

information of the victim?

(2) In case, an information relating to offence of

rape received at a Police Station, reveals that

the place of commission of the offence is beyond

its  territorial  jurisdiction,  whether  in  such

cases  FIR  without  crime  number  are  being

recorded?

(3) whether provisions are available for recording of

first information by a woman police officer or a

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woman officer at the residence of the victim or

any other place of choice of such person in case

the victim is temporarily or permanently mentally

or physically disabled?

(4) whether all the District Police Units have the

details of special educator or an interpreter in

case of a mentally or physically disabled victim?

(5) whether the police department of states or union

territories  have  issued  any  circulars  to  make

provision  of  videography  of  the  recording  of

statements and depository of the same?

(6) whether any state has published guidelines in the

shape of Standard Operating Procedure (SOP) to be

followed  for  responding  after  receipt  of  the

information relating to case of rape and similar

offences?

6. By  the  Amendment  Act  of  2013,  a  new  provision  of

Section 166A made the failure of a public servant to record

any information of such offences, as prescribed, under sub-

Section  1  of  Section  154  of  the  Cr.P.C.,  a  punishable

offence, prescribing both rigorous imprisonment and fine

for the guilty.   

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether any case has been registered under the

Section 166A of IPC against any public servant?

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(2) whether  there  is  any  mechanism  in  place  to

complain about the non-recording of information

by  the  officer  giving  cause  to  offence  under

Section 166A with any other institution/office,

other than the concerned police station?

7. Medical treatment and examination of the victim is a

very important aspect not only for the immediate relief to

the victim but also provides intrinsic evidences for the

trial. Amendments in this regard have been inserted by the

Amendment  Acts  of  2013  and  2018,  whereby  the  newly

introduced  Section  357C  of  Cr.P.C.  has  sought  to  fix

liability on medical institutions, both public or private

to provide medical treatment free of cost to the victims of

such offences as prescribed, together with a duty to inform

the police of such incident. Failure to comply with the

above provision has also been made an offence punishable

under Section 166B of IPC.  

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether  any  advisory  or  guidelines  have  been

issued by the authorities to all the hospitals

and medical centres in this regard?  

(2) whether any case has been registered against any

person under Section 166B of IPC?

8. The manner in which the medical report of the victim

is prepared is also a matter of concern. The Amendment Act

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of 2013 has inserted a new provision, i.e. Section 164A in

this  regard,  which  provides  for  the  manner  of  medical

examination as well as the guidelines for preparation of

medical report.  Other than the above information, many a

times  valuable  information  in  consonance  with  the

definition of rape as amended by the Act of 2013 are not

supplied.  

9. Also, vide the Amendment Act of 2013, Section 53A was

inserted in the Evidence Act, 1872. It provides that the

evidence of character of the victim and of such person’s

previous sexual experience with any persons shall not be

relevant on the issue of such consent or the quality of

consent.  The effect of above provision is that previous

sexual experience and in effect the habituation to sexual

intercourse  is  now  irrelevant  for  the  purpose  medical

examination.  Still, we come across the medical opinion

such as “the victim is habitual of sexual intercourse” and

the opinion suggesting possibility of consent on the basis

of her previous sexual exposure.    

10. The Ministry of Health and Family Welfare, Government

of  India  had  prepared  “Guidelines  &  Protocols:  Medico-

legal care for survivors/victims of sexual violence”.  

11. The  Ministry  of  Women  and  Child  Development  has

designed a Medical Kit for examination of the victim and

the accused in cases of rape. The Union Government and the

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State Government have not provided this medical kit to all

the Primary Health Centers or Community Health Centers.

This Medico Forensic Kit is essential for collection of

Medical/DNA evidence.   

12. Further, Per-Vaginum examination commonly referred to

as 'Two-finger test' has been held to be of no consequence

and violative  of the  dignity of  woman. In  the case  of

Lillu alias Rajesh and Anr. v. State of Haryana,  (2013)

14 SCC 643 it was observed as follows:-

“In  view  of  International  Covenant  on Economic,  Social,  and  Cultural  Rights 1966; United Nations Declaration of Basic Principles  of  Justice  for  Victims  of Crime  and  Abuse  of  Power  1985,  rape survivors are entitled to legal recourse that  does  not  re-traumatize  them  or violate  their  physical  or  mental integrity  and  dignity.  They  are  also entitled to medical procedures conducted in a manner that respects their right to consent. Medical procedures should not be carried out in a manner that constitutes cruel,  inhuman,  or  degrading  treatment and  health  should  be  of  paramount consideration while dealing with gender- based  violence.  The  State  is  under  an obligation  to  make  such  services available  to  survivors  of  sexual violence. Proper measures should be taken to ensure their safety and there should be no arbitrary or unlawful interference with his privacy.

Thus,  in  view  of  the  above, undoubtedly, the two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”  

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Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether the Medical Opinion in the cases relating

to rape and similar offences is being given in

compliance with the mandate of Section 164A of

Cr.P.C.?

(2) whether the Medical Opinion in the cases relating

to rape and similar offences is being given in

tune with definition of rape under Section 375 of

IPC as it stands today?

(3) whether the states have adopted the Guidelines &

Protocols of The Ministry of Health and Family

Welfare,  Government  of  India  or  have  they

prepared their own Guidelines & Protocols?

(4) whether  requisite  Medico-forensic  kit  are

available with all the hospitals/health centres

run by the Government or by local authorities?

(5) whether the medical experts have done away with

the Per-Vaginum examination commonly referred to

as 'Two-finger test' and whether any directions

have been issued by the states in this regard?

(6) whether medical experts have done away with the

practice of giving opinion on the previous sexual

experience of the victim or any directions have

been issued by the states in this regard?

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(7) whether  lady  medical  practioners,  if  mandated,

are available at all district and sub-divisional

headquarters to draw up the medical examination

report of the victim?

13. Forensic examination and report play an important role

during the investigation as well as trial for linking the

culprit with the crime. With the advancement of the DNA

science and its accuracy, the sampling for the purpose of

Forensic  examination  and  expeditious  reports  after  due

examination are vital to the just adjudication of the case.

The sampling for the purpose of DNA test as well other

forensic tests like forensic odontology is essential in

cases relating to rape.  

14. In relation to the examination of the accused, Section

53A of Cr.P.C. provides for timely examination and guidance

for preparation of medical report.  

Thus, we consider it appropriate to call for status

report with regard to the following: -  

(1) whether there is any Standard Operating Procedure

(SOP) or Protocol for taking samples for Forensic

DNA, Forensic odontology and other forensics for

Medical Practitioners?

(2) whether  there  are  adequate  number  of  equipped

Forensic  Laboratories  at  least  one  at  every

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Division  Level  to  conduct  forensic  DNA  and

Forensic odontology analysis regionally?

(3) subject  to  availability,  whether  Central

Government  has  notified  sufficient  number  of

Government scientific expert other than already

specified under Section 293 of Cr.P.C.?

15. Section  173  (1A)  Cr.P.C.  provides  that  the

investigation in relation to an offence under Section 376,

376A, 376AB, 376B, 376C, 376D, 376DA, 376Db or 376 E of the

Indian Penal Code (45 of 1860) shall be completed within

two  months  from  the  date  on  which  the  information  was

recorded by the police officer in charge of the Police

Station.

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether police is completing the investigation and

submitting the final report within a period of two

months from the date of recording of information

of the offence and if no, reasons for delay?

(2) whether sufficient number of women police officers

are available to conduct investigation into the

offences  relating  to  rape  and  other  sexual

offences?

16. Sub-Section (5A) of Section 164, Cr.P.C. provides for

recording of statement of the victim by the Court. Other

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than recording of statements under Section 164, for the

purpose  of  recording  of  statements  during  the  trial,

Section 119 of Evidence Act provides for assistance of an

interpreter  or  a  special  educator  in  recording  the

statement of the witness unable to speak but capable to

give evidence in any other manner.  It further provides

that such statement shall be video graphed.

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether  the  police  is  taking  the  victim  for

recording  of  the  statements  as  soon  as  the

commission  of  the  offence  is  brought  to  the

notice of police?

(2) whether the Magistrate Courts or the trial courts

have  the  availability  of  the  interpreter  or

special educator in each Districts?

(3) whether the Magistrate Courts or the trial Courts

have  the  facility  of  videography  of  the

statements  and  depository  of  the  same  in  the

Courts?

17. Section 26 clause (a)(iii) of Cr.P.C. provides for

trial of such offences to be conducted by a Court presided

over by a woman judge, as far as practicable. Further,

Second  proviso  to  sub-Section  327(2)  of  Cr.P.C.  also

mandates that in camera trial shall be conducted, as far as

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practicable, by a woman Judge or Magistrate.  It must be

noted that the insertion of the above proviso has a very

important object and the rider of “as far as practicable”

cannot be used to overcome the mandate in ordinary manner.

18. The need for speedy trial of the cases relating to

offence of rape has been emphasized again and again this

Court.  The  proviso  to  sub-Section  (1)  of  Section  309

mandates  that  the  inquiry  of  trial  shall,  as  far  as

possible, be completed within a period of two months from

the date of filing of the charge-sheet.  

Thus, we consider it appropriate to call for status

report with regard to the following: -

(1) whether trial of cases relating to rape are being

conducted by Courts presided over by a woman?

(2) whether  sufficient  number  of  lady  judges  are

available to preside over the Courts dealing with

sexual offences and rape?

(3) whether  all  courts  holding  trial  of  cases

relating  to  offence  of  rape  have  requisite

infrastructure  and  are  conducting  in  camera

trial?

(4) whether the trial relating to cases of rape is

being completed within a period of two months

from the date of filing of charge-sheet, if not,

the reasons for the delay?  

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(5) whether sufficient number of special Courts have

been  established  to  deal  exclusively  with  the

cases of rape and other sexual offences?

19. Under  Section  230  of  Cr.P.C.,  a  trial  program  is

generally prepared on the application of the prosecution.

This Court in the case of State of Kerala v. Rasheed, AIR

2019 SC 721 has held as followings:-

“The following practice guidelines should be  followed  by  trial  courts  in  the conduct of a criminal trial, as far as possible:  

i.  a  detailed  case-calendar  must  be prepared at the commencement of the trial after framing of charges;

ii.  the  case-calendar  must  specify  the dates on which the examination-in-chief and  cross-examination  (if  required)  of witnesses is to be conducted;

iii. the case-calendar must keep in view the  proposed  order  of  production  of witnesses  by  parties,  expected  time required  for  examination  of  witnesses, availability of witnesses at the relevant time,  and  convenience  of  both  the prosecution as well as the defence, as far as possible;

iv.  testimony  of  witnesses  deposing  on the  same  subject  matter  must  be proximately scheduled;

v. the request for deferral under Section 231(2) of the Cr.P.C. must be preferably made before the preparation of the case calendar;

vi.  the  grant  for  request  of  deferral must  be  premised  on  sufficient  reasons justifying  the  deferral  of  cross- examination of each witness, or set of witnesses;

vii.  while  granting  a  request  for deferral  of  cross-examination  of  any

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witness, the trial courts must specify a proximate date for the cross-examination of that witness, after the examination- in-chief of such witness(es) as has been prayed for;

viii.  the  case-calendar,  prepared  in accordance  with  the  above  guidelines, must  be  followed  strictly,  unless departure  from  the  same  becomes absolutely necessary;

ix.  in  cases  where  trial  courts  have granted a request for deferral, necessary steps  must  be  taken  to  safeguard witnesses from being subjected to undue influence, harassment or intimidation.”  

Thus, we consider it appropriate to call for status

report with regard to the following: -

(1) whether  case-calendar  as  envisaged  in  the

Rasheed  case is  being  prepared  by  the  Trial

Courts  keeping  in  mind  the  time  line  of  two

months mandated by Section 309 of Cr.P.C.?

(2) whether the attendance of the witnesses is being

ensured  by  the  Prosecution  to  ensure  the

examination of witnesses on the fixed dates?

(3) whether any guidelines have been issued by Bar

Councils or Associations urging the Advocates to

assist the Court in completion of trial within

the stipulated period?

(4) whether special exclusive permanent trial courts

have been created in the state to deal with cases

relating to rape and sexual assaults?

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(5) whether any High Court has constituted Special

Bench for expeditious hearing of appeal in these

cases?

20. The protection of witness during the investigation and

trial is essential in cases of this sensitive nature.  Many

a times the accused live in proximity of the victim.  The

possibility of tampering with evidence and pressurizing the

witness affects fair trial.  

Thus, we consider it appropriate to call for status

report with regard to the following:-

(1) whether any policy of victim/witness protection

in  the  cases  relating  to  rape  is  framed  and

implemented?

(2) whether police protection is being provided to

the victim during investigation and trial of the

offence?

(3) whether there are special waiting room in the

Court  premises  for  victim/witnesses  of  cases

relating to offence rape?

(4) whether the trial Courts have taken appropriate

measures  to  ensure  that  victim  woman  is  not

confronted by the accused during the trial as

mandated by Section 273 Cr.P.C.?

21. Section  357A(2)  Cr.P.C.  provides  for  award  of

compensation to the victims.  The District Legal Service

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Authority or the State Legal Service Authority are bound to

decide as to the quantum of compensation to the victim on

the recommendation of the Court. By the order of this Court

in W.P. (C) 565/2012 titled Nipun Saxena v. Union of India,

the  National  Legal  Services  Authority,  New  Delhi  had

prepared a Compensation Scheme for Women Victims/Survivors

of Sexual Assault/other Crimes – 2018. This scheme has been

circulated  among  all  states  for  necessary  actions.  The

Scheme comprehensively provides for the rehabilitation and

compensation for the victims of Rape.

22. As  the  victim  goes  through  a  mental  trauma  and

requires  immediate  counselling,  legal  aid  and  medical,

social and in some cases, economic rehabilitation.  

Thus, we consider it appropriate to call for status

report with regard to the following: -   

(1) whether  Courts  are  recommending  the  District

Legal  Service  Authority  or  the  State  Legal

Service Authority for compensation in appropriate

cases?

(2) whether  the  amount  of  interim  or  final

compensation is being provided to the victims in

time bound manner?

(3) whether  the  above-mentioned  Scheme  of  2018  or

suitably amended Scheme, has been implemented by

the states for rehabilitation of victims of rape?

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(4) whether  the  SLSA  or  NLSA  has  formulated  any

scheme  for  social,  medical  and  economic

rehabilitation of the victim?

(5) whether  any  state  has  prepared  a  policy  with

regard  to  the  counselling  of  the  victim  and

medical,  social  and  in  some  cases,  economic

rehabilitation of the victim?

(6) whether there are any counselling/rehabilitation

centres in existence for the victims of rape?

23. In the year 2013, a separate fund namely Nirbhaya Fund

for  projects  of  women  safety  to  support  initiatives  by

government and NGOs was created, and it is important to

inform ourselves how far has the purpose of setting up the

fund been achieved.   

Thus, we consider it appropriate to call for status

report with regard to the following: -

(1) Utilization of the Nirbhaya Fund by Central or  

State Government(s) for the purposes envisioned?

24. Let the matter be registered as Suo Motu Writ Petition

Criminal  with  the  caption  “Assessment  of  the  Criminal

Justice System in response to Sexual Offences”.   

25. In order to collate all the information and status and

provide a holistic view of implementation of provisions of

law and to suggest measures for making the criminal justice

system more efficacious and responsive towards the offence

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of rape and other sexual offences, we request Shri Sidharth

Luthra,  Senior  Advocate  to  assist  the  Court  as  Amicus

Curiae in the matter.    

26. The learned Solicitor General is requested to extend

all co-operation to the Amicus Curiae in this regard.  

27. The Secretary General, Supreme Court of India shall

also  extend  co-operation  in  respect  of  calling  for

information and status reports from the Chief Secretary and

the  Director  General  of  Police  of  all  the  States,  the

Registrar  General  of  all  the  High  Courts  and  other

functionaries, as may be required.  

Let the matter be listed on 07.02.2020.

……………………………………CJI  [ S.A. BOBDE ]

………………………………………J.  [ B.R. GAVAI ]

………………………………………J.  [ SURYA KANT ]

New Delhi December 18, 2019