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REPORTABLE      

IN THE SUPREME COURT OF INDIA   CIVIL/CRIMINAL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO. 565 OF 2012    

NIPUN SAXENA & ANR.         …PETITIONER(S)  

Versus  

UNION OF INDIA & ORS.            …RESPONDENT(S)    

WITH     

W.P. (Crl.) No. 1 of 2013    

W.P. (C) No. 22 of 2013    

W.P. (C) No. 148 of 2013    

SLP (CRL.).......CRLMP. No.16041/2014    

W.P. (C) No. 568 of 2012      

J U D G M E N T    

Deepak Gupta, J.  

1. How and in what manner the identity of adult victims of  

rape and children who are victims of sexual abuse should be  

protected so that they are not subjected to unnecessary ridicule,

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social ostracisation and harassment, is one of the issues which  

arises in these cases.    

2. We are dividing this judgment into two parts.  The first part  

deals with the victims of the offence of rape under the Indian  

Penal Code, 1860 (for short ‘IPC’) and the second part deals with  

victims who are subjected to offences under the Protection of  

Children from Sexual Offences Act, 2012 (for short ‘POCSO’).    

3.  In this judgment any reference to “media” will include all  

types of media including press, electronic and social media etc..  

Ist Part  

4. Unfortunately, in our society, the victim of a sexual offence,  

especially a victim of rape, is treated worse than the perpetrator  

of the crime.  The victim is innocent.  She has been subjected to  

forcible sexual abuse.  However, for no fault of the victim, society  

instead of empathizing with the victim, starts treating her as an  

‘untouchable’.  A victim of rape is treated like a “pariah” and  

ostracised from society.  Many times, even her family refuses to  

accept her back into their fold.  The harsh reality is that many  

times cases of rape do not even get reported because of the false

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notions of so called ‘honour’ which the family of the victim wants  

to uphold.  The matter does not end here.  Even after a case is  

lodged and FIR recorded, the police, more often than not,  

question the victim like an accused.  If the victim is a young girl  

who has been dating and going around with a boy, she is asked  

in intimidating terms as to why she was dating a boy.  The  

victim’s first brush with justice is an unpleasant one where she is  

made to feel that she is at fault; she is the cause of the crime.  

5. If the victim is strong enough to deal with the  

recriminations and insinuations made against her by the police,  

she normally does not find much succour even in court.  In Court  

the victim is subjected to a harsh cross-examination wherein a  

lot of questions are raised about the victim’s morals and  

character.  The Presiding Judges sometimes sit like mute  

spectators and normally do not prevent the defence from asking  

such defamatory and unnecessary questions.  We want to make  

it clear that we do not, in any manner, want to curtail the right of  

the defence to cross-examine the prosecutrix, but the same  

should be done with a certain level of decency and respect to  

women at large.  Over a period of time, lot of effort has been

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made to sensitise the courts, but experience has shown that  

despite the earliest admonitions, the first as far back as in 19961,  

the Courts even today reveal the identity of the victim.    

6. Section 228A was introduced in the IPC vide Amendment  

Act No. 43 of 1983 with effect from 25.12.1983 and reads as  

follows:  

“228A. Disclosure of identity of the victim of  

certain offences etc.-  

(1) Whoever prints or publishes the name or any  

matter which may make known the identity of any  

person against whom an offence under section 376,  

section 376A, section 376AB, section 376B, section  

376C, section 376D, section 376DA, section 376DB or  

section 376E is alleged or found to have been  

committed (hereafter in this section referred to as the  

victim) shall be punished with imprisonment of either  

description for a term which may extend to two years  

and shall also be liable to fine.  

(2) Nothing in sub-section (1) extends to any printing  

or publication of the name or any matter which may  

make known the identity of the victim if such printing  

or publication is-   

(a) by or under the order in writing of the officer-

in-charge of the police station or the police  

officer making the investigation into such  

offence acting in good faith for the purposes of  

such investigation; or  

(b) by, or with the authorisation in writing of, the  

victim; or  

(c) where the victim is dead or minor or of  

                                                           1 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384

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unsound mind, by, or with the authorisation in  

writing of, the next of kin of the victim:  

Provided that no such authorisation shall be given by  

the next of kin to anybody other than the chairman or  

the secretary, by whatever name called, of any  

recognised welfare institution or organisation.  

Explanation.-For the purposes of this sub-section,  

"recognised welfare institution or organisation" means  

a social welfare institution or organisation recognised  

in this behalf by the Central or State Government.  

(3) Whoever prints or publishes any matter in relation  

to any proceeding before a court with respect to an  

offence referred to in sub-section (1) without the  

previous permission of such Court shall be punished  

with imprisonment of either description for a term  

which may extend to two years and shall also be liable  

to fine.  

Explanation.-The printing or publication of the  

judgment of any High Court or the Supreme Court  

does not amount to an offence within the meaning of  

this section.”  

7. We may also refer to Section 327 of the Code of Criminal  

Procedure, 1973 (for short ‘CrPC’) which provides that Courts  

should be open and normally public should have access to the  

Courts.  Sub-section (2) of Section 327 was inserted by the same  

Amendment Act No.43 of 1983.  Section 327, as amended, reads  

as follows:-  

“Section 327. Court to be open.-  

(1) The place in which any criminal Court is held for  

the purpose of inquiring into or trying any offence  

shall be deemed to be an open Court to which the  

public generally may have access, so far as the same

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can conveniently contain them:  

Provided that the presiding Judge or Magistrate may, if  

he thinks fit, order at any stage of any inquiry into, or  

trial of, any particular case, that the public generally,  

or any particular person, shall not have access to, or  

be or remain in, the room or building used by the  

Court.  

(2) Notwithstanding anything contained in sub-section  

(1), the inquiry into and trial of rape or an offence  

under section 376, section 376A, section 376AB,  

section 376B, section 376C, section 376D, section  

376DA, section 376DB or section 376E of the Indian  

Penal Code (45 of 1860) shall be conducted in camera:  

Provided that the presiding Judge may, if he thinks fit,  

or on an application made by either of the parties,  

allow any particular person to have access to, or be or  

remain in, the room or building used by the Court:  

Provided further that in camera trial shall be  

conducted as far as practicable by a woman Judge or  

Magistrate.  

(3) Where any proceedings are held under sub-section  

(2), it shall not be lawful for any person to print or  

publish any matter in relation to any such  

proceedings, except with the previous permission of  

the Court:  

Provided that the ban on printing or publication of  

trial proceedings in relation to an offence of rape may  

be lifted, subject to maintaining confidentiality of  

name and address of the parties.”  

8. Vide the Amendment Act of 1983 cases of rape, gang rape  

etc. were excluded from the category of cases to be tried in open  

Court.  Later other similar offences were included vide  

Amendment Act of 2013.   

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9. Sub-section (1) of Section 228A, provides that any person  

who makes known the name and identity of a person who is an  

alleged victim of an offence falling under Sections 376, 376A,  

376AB, 376B, 376C, 376D, 376DA, 376DB or 376E commits a  

criminal offence and shall be punishable for a term which may  

extend to two years.    

10. What is however, permitted under sub-section (2) of Section  

228A IPC is making known the identity of the victim by printing  

or publication under certain circumstances described therein.   

Any person, who publishes any matter in relation to the  

proceedings before a Court with respect to such an offence,  

without the permission of the Court, commits an offence.  The  

Explanation however provides that printing or publication of the  

judgment of the High Courts or the Supreme Court will not  

amount to any offence within the meaning of the IPC.    

11. Neither the IPC nor the CrPC define the phrase ‘identity of  

any person’.  Section 228A IPC clearly prohibits the printing or

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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

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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.    

13. Sub-section (2) of Section 228A IPC makes an exception for  

police officials who may have to record the true identity of the  

victim in the police station or in the investigation file.  We are not  

oblivious to the fact that in the first information report (for short  

‘FIR’) the name of the victim will have to be disclosed.  However,  

this should not be made public and especially not to the media.   

We are of the opinion that the police officers investigating such

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cases and offences should also as far as possible either use a  

pseudonym to describe the victim unless it is absolutely  

necessary to write down her identity. We make it clear that the  

copy of an FIR relating to the offence of rape against a women or  

offences against children falling within the purview of POCSO  

shall not be put in the public domain to prevent the name and  

identity of the victim from being disclosed.  The Sessions  

Judge/Magistrate/Special Court can for reasons to be recorded  

in writing and keeping in view the interest of the victim permit  

the copy of the FIR to be given to some person(s).  Some examples  

of matters where her identity will have to be disclosed are when  

samples are taken from her body, when medical examination is  

conducted, when DNA profiling is done, when the date of birth of  

the victim has to be established by getting records from school  

etc..  However, in these cases also the police officers should move  

with circumspection and disclose as little of the identity of the  

victim as possible but enough to link the victim with the  

information sought.  We make it clear that the authorities to  

which the name is disclosed when such samples are sent, 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

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which should only be sent in a sealed cover to the investigating  

agency or the court.   There can be no hard and fast rule in this  

behalf but the police should definitely ensure that the  

correspondence or memos exchanged or issued wherein the name  

of the victim is disclosed are kept in a sealed cover and are not  

disclosed to the public at large.  They should not be disclosed to  

the media and they shall also not be furnished to any person  

under the Right to Information Act, 2015.  We direct that the  

police officials should keep all the documents in which the name  

of the victim is disclosed 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 by a  

large number of people.  The sealed cover can be filed in the court  

along with the report filed under Section 173 CrPC.   

14. As far as clause (b) of sub-section (2) of Section 228A IPC is  

concerned, if an adult victim has no objection to her name being  

published or identity being disclosed, she can obviously authorize  

any person in writing to disclose her name.  This has to be a  

voluntary and conscious act of the victim.  There are some  

victims who are strong enough and willing to face society even

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after their names are disclosed.  Some of them, in fact, help other  

victims of rape and they become a source of inspiration to other  

rape victims.  Nobody can have any objection to the victim  

disclosing her name as long as the victim is a major.  

15. Coming to clause (c) of sub-section (2) of Section 228A IPC,  

we are of the opinion that where the victim is a minor, Section  

228A will no longer apply because of the enactment of POCSO  

which deals specifically with minors.  In fact, the words ‘or minor’  

should for all intents and purposes be deemed to be deleted from  

clause (c) of sub-section (2) of Section 228A IPC.  

16. The vexatious issue which troubles us is with regard to the  

next of kin of the victim giving an authority to the Chairman or  

the Secretary of recognized welfare institutions or organizations  

to declare the name.  As per the materials placed before us till  

date neither the Central Government nor any State Government  

has recognized any such social welfare institutions or  

organizations to whom the next of kin should give the  

authorization.

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17. Before dealing with this technical aspect as to whom the  

authorisation is to be given, we feel that a word of caution is  

needed with regard to the right of the next of the kin of the  

victim.  A person of unsound mind is as much a citizen of the  

country as a sane person.  A person of unsound mind who is also  

subjected to such a heinous sexual offence suffers a trauma  

which is unimaginable.  The issue for consideration is – in what  

circumstances the next of kin should be permitted to authorize  

the naming and identification of the victim?  It was urged before  

us that in certain matters the name of the victim should be  

permitted to be disclosed or published because the name and  

face of the victim can then become a rallying point to prevent  

other such sexual offences.  The victim becomes a symbol of  

protest or is treated as an iconic figure.  We are not at all  

impressed with this argument.  Should the person who is dead or  

who is of unsound mind be permitted to become a symbol if such  

person herself might not want to be a rallying point?  We are also  

of the considered view that it is not at all necessary to disclose  

the identity of the victim to arouse public opinion and sentiment.   

This is a serious issue dealing with victims of heinous sexual

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offences and needs to be dealt with sensitivity.  Furthermore, all  

of us are fully aware that without disclosing her true identity  

‘Nirbhaya’ became the most effective symbol of protest the  

country has ever known.  If a campaign has to be started to  

protect the rights of the victim and mobilise public opinion it can  

be done so without disclosing her identity.    

18. We may also add that in this modern age where we have  

dealt with cases where daughters have been raped by their  

fathers, where victims of rape especially minor victims are very  

often subjected to this heinous crime either by family members or  

friends of the family, it is not unimaginable that the so called  

next of kin may for extraneous reasons including taking money  

from a media house or a publishing firm which wants to publish  

a book, disclose the name of the victim.  We do not, in any  

manner, want to comment upon the role of the parents but we  

cannot permit even one case of this type and in the larger interest  

we feel that, as a matter of course, the name of the victim or her  

identity should not be disclosed even under the authorization of  

the next of the kin, without permission of the competent  

authority.

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19. It has been urged on behalf of the Union of India that the  

words “next of kin” will have to be given the same definition as is  

contemplated under the Indian Succession Act, 1925.  We do not  

want to enter into this dispute.  As pointed by us, in certain  

cases, the interest of the next of kin may not be the same as the  

interest of the victim.  In such circumstances, the applicant may  

not be the next of kin, but the “next friend” of the child, who may  

be entitled to move such an application.  It will be for the Court  

or the competent authority to decide who is the “next friend”.   

20. As pointed out above, neither the Central Government nor  

any State Government has recognized any such welfare  

institution or organization.  No guidelines have been laid down in  

the IPC as to what will be the nature of such organisation and  

what will be the qualifications of the persons who are made the  

Chairman or Secretary of such organisation.  These matters  

cannot be left indeterminate.    

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21. There may be cases where the identity of the victim, if not  

her name, may have to be disclosed.  There may be cases where a  

dead-body of a victim is found.  It is established that the victim  

was subjected to rape.  It may not be possible to identify the  

victim.  Then, obviously her photograph will have to be published  

in the media.  Even here, we would direct that while this may be  

done, the fact that such victim has been subjected to a sexual  

offence need not be disclosed.  There may be other situations  

where the next of kin may be justified in disclosing the identify of  

the victim.  If any such need should arise, then we direct that an  

application to authorise disclosure of identity should be made  

only to the Sessions Judge/magistrate concerned and the said  

Sessions Judge/magistrate shall decide the application on the  

basis of the law laid down by us.  We are exercising power under  

Article 142 of the Constitution in this regard because the  

Government has not identified any social or welfare  

institution/organisation and the law as laid down cannot be  

administered.  We direct that if the Government wants to actually  

act under Section 228A (2) (c) IPC, it must before identifying such  

social welfare institution or organisation clearly lay down some  

rules or clear cut criteria in this regard.  What should be the

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nature of the organisation?  How should the application be  

made?  In what manner that application should be dealt with?.  A  

clear cut procedure must be laid down.  Till that is done, our  

directions shall prevail.    

22. As far as sub-section (3) of Section 228A IPC is concerned,  

we would like to make it clear that the IPC clearly lays down that  

nobody can print or publish any matter in relation to any  

proceedings falling within the purview of Section 228A and in  

terms of Section 327(2) CrPC.  These are in camera proceedings  

and nobody except the presiding officer, the court staff, the  

accused, his counsel, the public prosecutor, the victim, if at all  

she wants to be present or the witness shall be there.  It is the  

bounden duty of all of them to ensure that what happens in court  

is not disclosed outside.  This is not to say that there can be no  

reporting of such cases.  The press can report that the case was  

fixed before Court and some witnesses were examined.  It can  

report for what purpose the case was listed but it cannot report  

what transpired inside the court or what was the statement of the  

victim or the witnesses.  The evidence cannot be disclosed.  We  

are not elaborating and dealing with the issue of publication in

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press in greater detail since this issue is engaging our attention  

in Nivedita Jha’s case2 but it is clear that nobody can be  

permitted to violate Section 327(3) CrPC, the language of which is  

very clear and unambiguous.    

23. Sub-section (3) of Section 228A IPC makes printing or  

publication of any matter in relation to such proceedings before a  

court an offence unless its publication is made with the previous  

permission of such court.  

24. This Court, more than two decades back in Gurmit Singh’s  

case (supra) raised a note of caution.  It found that sexual crimes  

against women were rising.  This court held that victims of sexual  

abuse or assault were treated without any sensitivity during the  

course of investigation and trial.  The Court further held that trial  

of rape cases in camera should be the rule and open trial an  

exception.  Though the Court did not refer to Section 228A IPC,  

the following observations are pertinent:  

“21. Of late, crime against women in general and rape  

in particular is on the increase. It is an irony that  

                                                           2 Nivedita Jha v. State of Bihar, SLP(C) No. 24978 of 2018

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while we are celebrating woman’s rights in all spheres,  

we show little or no concern for her honour. It is a sad  

reflection on the attitude of indifference of the society  

towards the violation of human dignity of the victims  

of sex crimes. We must remember that a rapist not  

only violates the victim’s privacy and personal  

integrity, but inevitably causes serious psychological  

as well as physical harm in the process. Rape is not  

merely a physical assault — it is often destructive of  

the whole personality of the victim. A murderer  

destroys the physical body of his victim, a rapist  

degrades the very soul of the helpless female. The  

courts, therefore, shoulder a great responsibility while  

trying an accused on charges of rape. They must deal  

with such cases with utmost sensitivity……  

22. There has been lately, lot of criticism of the  

treatment of the victims of sexual assault in the court  

during their cross-examination. The provisions of  

Evidence Act regarding relevancy of facts  

notwithstanding, some defence counsel adopt the  

strategy of continual questioning of the prosecutrix as  

to the details of the rape. The victim is required to  

repeat again and again the details of the rape incident  

not so much as to bring out the facts on record or to  

test her credibility but to test her story for  

inconsistencies with a view to attempt to twist the  

interpretation of events given by her so as to make  

them appear inconsistent with her allegations. The  

court, therefore, should not sit as a silent spectator  

while the victim of crime is being cross-examined by  

the defence. It must effectively control the recording of  

evidence in the court. While every latitude should be  

given to the accused to test the veracity of the  

prosecutrix and the credibility of her version through  

cross-examination, the court must also ensure that  

cross-examination is not made a means of harassment  

or causing humiliation to the victim of crime. A victim  

of rape, it must be remembered, has already  

undergone a traumatic experience and if she is made  

to repeat again and again, in unfamiliar surroundings  

what she had been subjected to, she may be too  

ashamed and even nervous or confused to speak and  

her silence or a confused stray sentence may be

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wrongly interpreted as “discrepancies and  

contradictions” in her evidence.”  

Dealing with Section 327 CrPC this Court held as follows:-  

24……..It would enable the victim of crime to be a little  

comfortable and answer the questions with greater  

ease in not too familiar a surroundings. Trial in  

camera would not only be in keeping with the self-

respect of the victim of crime and in tune with the  

legislative intent but is also likely to improve the  

quality of the evidence of a prosecutrix because she  

would not be so hesitant or bashful to depose frankly  

as she may be in an open court, under the gaze of  

public. The improved quality of her evidence would  

assist the courts in arriving at the truth and sifting  

truth from falsehood…………..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.”  

25. Bhupinder Sharma v. State of Himachal Pradesh3 is one  

of first cases where specific reference was made to Section 228A  

IPC.  This Court held as follows:-  

“2. We do not propose to mention the name of the  

                                                           3 (2003) 8 SCC 551

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victim. Section 228-A of the Indian Penal Code, 1860  

(in short “IPC”) makes disclosure of the identity of  

victims of certain offences punishable. Printing or  

publishing the name or any matter which may make  

known the identity of any person against whom an  

offence under Sections 376, 376-A, 376-B, 376-C or  

376-D is alleged or found to have been committed can  

be punished. True it is, the restriction does not relate  

to printing or publication of judgment by the High  

Court or the Supreme Court. But keeping in view the  

social object of preventing social victimization or  

ostracism of the victim of a sexual offence for which  

Section 228-A has been enacted, it would be  

appropriate that in the judgments, be it of a High  

Court or a lower court, the name of the victim should  

not be indicated. We have chosen to describe her as  

“victim” in the judgment.”  

This Court held that the bar imposed under Section 228A  

IPC did not in term apply to the printing or publication of  

judgments of the High Courts and the Supreme Court because of  

the Explanation to Section 228A.  However, keeping in view the  

social object of preventing the victims or ostracising of victims, it  

would be appropriate that in judgments of all the courts i.e. trial  

courts, High Courts and the Supreme Court the name of the  

victim should not be indicated.  This has been repeated in a large  

number of cases and we need not refer to all.    

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26. The Kerala High Court in the case of Aju Varghese v. State  

of Kerala4 held as follows:-  

“8. The statutory provision as explained by the  

Supreme Court clearly shows that the provision was  

specifically intended to ensure that the victim is not  

exposed to further agony by the consequent social  

victimization or ostracism pursuant to disclosure of  

her identity. It is clear that, it is intended to protect  

her from psychological and sociological torture or  

mental agony, that may follow the unfortunate  

incident of sexual violence. Society has a duty to  

support the victims of sexual violence and to ensure  

that they come back to normalcy and start leading a  

normal life. Victims of such violence are not denuded  

of their fundamental right to privacy and are liable to  

be insulated against unnecessary public comments.  

Definitely, it serves an avowed social purpose and has  

an element of public interest involved in it. Section is  

so clear, unambiguous and the consequence of breach  

of it is inescapable and the question whether the  

disclosure was intended, bonafide or without  

knowledge of law has not relevance. Hence, the  

provision of section 228A IPC prohibiting the  

disclosure of the name by an accused is absolute and  

cannot be diluted.”  

27. Before parting with this aspect, we would like to deal with a  

situation not envisaged by the law makers.  As we have held  

above, Section 228A IPC imposes a clear cut bar on the name or  

identity of the victim being disclosed. What happens if the  

accused is acquitted and the victim of the offence wants to file an  

appeal under Section 372 CrPC?  Is she bound to disclose her  

                                                           4 Crl. MC No.5247 of 2017 decided on 27.09.2018

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name in the memo of appeal?  We are clearly of the view that  

such a victim can move an application to the Court praying that  

she may be permitted to file a petition under a pseudonymous  

name e.g. ‘X’ or ‘Y’ or any other such coded identity that she may  

choose.  However, she may not be permitted to give some other  

name which may indirectly harm another person.  There may be  

certain documents in which her name will have to be disclosed;  

e.g., the power of attorney and affidavit(s) which may have to be  

filed as per the Rules of the Court.  The Court should normally  

allow such applicant to file the petition/appeal in a  

pseudonymous name.  Where a victim files an appeal we direct  

that such victim can file such an appeal by showing her name as  

‘X’ or ‘Y’ along with an application for non-disclosure of the name  

of the victim.  In a sealed envelope to be filed with the appeal she  

can enclose the document(s), in which she can reveal her identity  

as required by the Rules of the appellate court.  The Court can  

verify the details but in the material which is placed in the public  

domain the name of the victim shall not be disclosed.  Such an  

application should be heard by the Court in Chambers and the  

name should not be reflected even in the cause-list till such

24    

matter is decided.  Any documents disclosing the name and  

identity of the victim should not be in the public domain.  

IInd Part  

28. In this part of the judgment we shall deal with the issues  

which relate to non-disclosure of the name and identity of a  

victim falling within the purview of the POCSO.  At the outset, we  

may note that the reasons which we have given in Ist Part of the  

judgment dealing with the adult victims, apply with even greater  

force to minor victims.    

29. A minor who is subjected to sexual abuse needs to be  

protected even more than a major victim because a major victim  

being an adult may still be able to withstand the social  

ostracization and mental harassment meted out by society, but a  

minor victim will find it difficult to do so.  Most crimes against  

minor victims are not even reported as very often, the perpetrator  

of the crime is a member of the family of the victim or a close  

friend.  Efforts are made to hush up the crime.  It is now  

recognised that a child needs extra protection.  India is a

25    

signatory to the United Nations Convention on the Rights of  

Child, 1989 and Parliament thought it fit to enact POCSO in the  

year 2012, which specifically deals with sexual offences against  

all children.  The Act is gender neutral and whatever we say in  

this Part will apply to all children.    

30. Chapter VI of POCSO deals with procedure relating to  

recording the statement of a child.  Section 24 deals with the  

statement recorded by the police.  For our purpose sub-section  

(5) of Section 24 is relevant which reads as follows:  

“Section 24 - Recording of statement of a child.-  

xxx   xxx  xxx  

xxx   xxx  xxx  

(5) The police officer shall ensure that the identity of  

the child is protected from the public media, unless  

otherwise directed by the Special Court in the interest  

of the child.”  

Section 25 POCSO states that statements of the child  

recorded under Section 164 CrPC which permits an advocate to  

be present will not be applicable in the case of children.  Trials  

under POCSO are conducted by the Special Court which is

26    

expected to be child friendly and specifically provides that the  

Special Court shall not permit aggressive questioning or  

character assassination of the child.  Sub-section (7) of Section  

33 which is relevant reads as follows:  

“Section 33 - Procedure and powers of Special  

Court.-  

xxx   xxx   xxx  

(7) The Special Court shall ensure that the identity of  

the child is not disclosed at any time during the course  

of investigation or trial:  

Provided that for reasons to be recorded in writing, the  

Special Court may permit such disclosure, if in its  

opinion such disclosure is in the interest of the child.  

Explanation.-For the purposes of this sub-section, the  

identity of the child shall include the identity of the  

child's family, school, relatives, neighbourhood or any  

other information by which the identity of the child  

may be revealed.”  

Section 37 provides that all trials under POCSO are to be  

conducted in camera unless otherwise specifically decided for  

reasons to be recorded by the Special Court.  A bare reading of  

Section 24(5) and Section 33(7) makes it amply clear that the  

name and identity of the child is not to be disclosed at any time  

during the course of investigation or trial and the identity of the  

child is protected from the public or media.  Furthermore,

27    

Section 37 provides that the trial is to be conducted in camera  

which means that the media cannot be present.  The entire  

purpose of the POCSO is to ensure that the identity of the child is  

not disclosed unless the Special Court for reasons to be recorded  

in writing permits such disclosure.  This disclosure can only be  

made if it is in the interest of the child and not otherwise.  One  

such case where disclosure of the identity of the child may be  

necessary can be where a child is found who has been subjected  

to a sexual offence and the identity of the child cannot be  

established even by the investigating team.  In such a case, the  

Investigating Officer or the Special Court may allow the  

photograph of the child to be published to establish the identity.   

It is absolutely clear that the disclosure of the identity can be  

permitted by the Special Court only when the same is in the  

interest of the child and in no other circumstances.  We are of the  

view that the disclosure of the name of the child to make the  

child a symbol of protest cannot normally be treated to be in the  

interest of the child.    

31. It is contended by the learned amicus curiae that interest of  

the child has not been defined.  We are of the view that it is

28    

neither feasible nor would it be advisable to clearly lay down  

what is the meaning of the phrase “interest of the child”.  We  

have, however, given some examples hereinabove and we do not  

want to tie down the hands of the Special Court, who may have  

to deal with such cases.  Each case will have to be dealt within  

its own factual scenario.    

Section 23 of POCSO contains provisions which relate to  

procedure for media.  It reads as follows:  

“Section 23 - Procedure for media.-  

(1) No person shall make any report or present  

comments on any child from any form of media or  

studio or photographic facilities without having  

complete and authentic information, which may have  

the effect of lowering his reputation or infringing upon  

his privacy.  

(2) No reports in any media shall disclose, the identity  

of a child including his name, address, photograph,  

family details, school, neighbourhood or any other  

particulars which may lead to disclosure of identity of  

the child:  

Provided that for reasons to be recorded in writing, the  

Special Court, competent to try the case under the Act,  

may permit such disclosure, if in its opinion such  

disclosure is in the interest of the child.  

(3) The publisher or owner of the media or studio or  

photographic facilities shall be jointly and severally  

liable for the acts and omissions of his employee.  

29    

(4) Any person who contravenes the provisions of sub-

section (1) or sub-section (2) shall be liable to be  

punished with imprisonment of either description for a  

period which shall not be less than six months but  

which may extend to one year or with fine or with  

both.”  

Sub-section (1) of Section 23 prohibits any person from  

filing any report or making any comments on any child in any  

form, be it written, photographic or graphic without first having  

complete and authentic information.  No person or media can  

make any comments which may have the effect of lowering the  

reputation of the child or infringing upon the privacy of the child.   

Sub-section (2) of Section 23 clearly lays down that no report in  

any media shall disclose identity of a child including name,  

address, photograph, family details, school, neighbourhood or  

any other particulars which may lead to the disclosure of the  

identity of the child.  This clearly shows that the intention of the  

legislature was that the identity of the child should not be  

disclosed directly or indirectly.  The phrase ‘any other particulars’  

will have to be given the widest amplitude and cannot be read  

only ejusdem generis.  The intention of the legislature is that the  

privacy and reputation of the child is not harmed.  Therefore, any  

information which may lead to the disclosure of the identity of

30    

the child cannot be revealed by the media.  The media has to be  

not only circumspect but a duty has been cast upon the media to  

ensure that it does nothing and gives no information which could  

directly or indirectly lead to the identity of the child being  

disclosed.    

32. No doubt, it is the duty of the media to report every crime  

which is committed.  The media can do this without disclosing  

the name and identity of the victim in case of rape and sexual  

offences against children.  The media not only has the right but  

an obligation to report all such cases.  However, media should be  

cautious not to sensationalise the same.  The media should  

refrain from talking to the victim because every time the victim  

repeats the tale of misery, the victim again undergoes the trauma  

which he/she has gone through.  Reportage of such cases should  

be done sensitively keeping the best interest of the victims, both  

adult and children, in mind.  Sensationalising such cases may  

garner Television Rating Points (TRPs) but does no credit to the  

credibility of the media.  

31    

33. Where a child belongs to a small village, even the disclosure  

of the name of the village may contravene the provisions of  

Section 23(2) POCSO because it will just require a person to go to  

the village and find out who the child is.  In larger cities and  

metropolis like Delhi the disclosure of the name of the city by  

itself may not lead to the disclosure of the identity of the child  

but any further details with regard to the colony and the area in  

which the child is living or the school in which the child is  

studying are enough (even though the house number may not be  

given) to easily discover the identity of the child.  In our  

considered view, the media is not only bound not to disclose the  

identity of the child but by law is mandated not to disclose any  

material which can lead to the disclosure of the identity of the  

child.  Any violation of this will be an offence under Section 23(4).  

34. The learned amicus curiae urged that child for purposes of  

publication should only mean a living child.  Her contention  

appears to be that when the child is dead then the name and  

identity of child can be disclosed.  Her submission is based on  

the assumption that if the name and identity of the child is  

disclosed, public sentiment can be generated and a movement

32    

can be started to get justice for the child.  According to her, it is  

difficult to garner such support if the name of the deceased child  

victim is not disclosed.  We are not at all in agreement with this  

submission.  The same reasoning which we have given above for  

victims will apply to dead victims also.  In the case of dead  

victims, we have to deal with another factor.  We have to deal  

with the important issue that even the dead have their own  

dignity.  They cannot be denied dignity only because they are  

dead.  

35. Though in this case we are dealing with cases of victims but  

we may make reference to Section 74 of the Juvenile Justice  

(Care and Protection of Children) Act, 2015, which reads as  

follows:-  

“Section 74. Prohibition on disclosure of identity of  

children.-  

(1) No report in any newspaper, magazine, news-sheet  

or audio-visual media or other forms of  

communication regarding any inquiry or investigation  

or judicial procedure, shall disclose the name, address  

or school or any other particular, which may lead to  

the identification of a child in conflict with law or a  

child in need of care and protection or a child victim or  

witness of a crime, involved in such matter, under any  

other law for the time being in force, nor shall the  

picture of any such child be published:  

33    

Provided that for reasons to be recorded in writing, the  

Board or Committee, as the case may be, holding the  

inquiry may permit such disclosure, if in its opinion  

such disclosure is in the best interest of the child.  

(2) The Police shall not disclose any record of the child  

for the purpose of character certificate or otherwise in  

cases where the case has been closed or disposed of.  

(3) Any person contravening the provisions of sub-

section (1) shall be punishable with imprisonment for  

a term which may extend to six months or fine which  

may extend to two lakh rupees or both.”  

36. The name, address, school or other particulars which may  

lead to the identification of the child in conflict with law cannot  

be disclosed in the media.  No picture of such child can be  

published.  A child who is not in conflict with law but is a victim  

of an offence especially a sexual offence needs this protection  

even more.    

37. The Sikkim High Court in Subash Chandra Rai v. State of  

Sikkim5 dealing with this issue held as follows:-  

“27……….The mandate of the provision requires no  

further clarification. Suffice it to say that neither for a  

child in conflict with law, or a child in need of care and  

                                                           5 2018 CriLJ 3146

34    

protection, or a child victim, or witness of a crime  

involved in matter, the name, address, school or other  

particulars which could lead to the child being  

tracked, found and identified shall be disclosed, unless  

for the reasons given in the proviso extracted  

hereinbefore. The Police and Media as well as the  

Judiciary are required to be equally sensitive in such  

matters and to ensure that the mandate of law is  

complied with to the letter.”  

38. In the case of Bijoy v. State of West Bengal6, the Calcutta  

High Court has given a detailed judgment setting out the reasons  

while dealing with the provisions of POCSO and held that neither  

during investigation nor during trial the name of the victim  

should be disclosed.   

 The Calcutta High Court has also given other directions to  

ensure that the provisions of the law are followed in letter and  

spirit, and the fundamental rights of a child victim and other  

basic human rights are protected.  We are in agreement with all  

these directions.    Though some of the issues dealt with in these  

directions do not strictly arise in this case, keeping in view the  

fact that we are dealing with the rights of children, we are  

annexing the directions issued by the Calcutta High Court as  

Annexure-1 to this judgment. We request all the Chairpersons  

                                                           6 2017 CriLJ 3893

35    

and Members of all the Juvenile Justice Committee of all the  

High Courts in the country to go through the judgment of the  

Calcutta High Court and the directions issued therein and they  

may issue similar directions, keeping in view the particular needs  

of each High Court/State.    

39. Before parting we would like to emphasize the need to have  

child friendly courts.  POCSO mandates setting up of child-

friendly courts.  Though some progress has been made in this  

regard, a lot still requires to be done.  

40. Any litigant who enters the court feels intimidated by the  

atmosphere of the court. Children and women, especially those  

who have been subjected to sexual assault are virtually  

overwhelmed by the atmosphere in the courts.  They are scared.   

They are so nervous that they, sometimes, are not even able to  

describe the nature of the crime accurately.  When they are  

cross-examined in a hostile and intimidatory manner then the  

nervousness increases and the truth does not come out.  

36    

41. It is, therefore, imperative that we should have courts which  

are child friendly.  Section 33(4) POCSO enjoins on the Special  

Court to ensure that there is child friendly atmosphere in court.   

Section 36 lays down that the child should not see the accused at  

the time of testifying.  This is to ensure that the child does not  

get scared on seeing the alleged perpetrator of the crime.  As  

noted above, trials are to be conducted in camera.  Therefore,  

there is a need to have courts which are specially designed to be  

child friendly and meet the needs of child victims and the law.   

42. These courts need not only be used for trying cases under  

the POCSO but can also be used as trial courts for trying cases of  

rape against women.  In fact, it would be in the interest of  

children and women, and in the interest of justice if one stop  

centres are also set up in all the districts of the country as early  

as possible.  These one stop centres can be used as a central  

police station where all crimes against women and children in the  

town/city are registered.  They should have well trained staff who  

are sensitive to the needs of children and women who have  

undergone sexual abuse.  This staff should be given adequate  

training to ensure that they talk to the victims in a

37    

compassionate and sensitive manner.  Counsellors and  

psychiatrists should also be available on call at these centres so  

that if necessary the victims are counselled and in some cases it  

would be appropriate if the counsellors question the victims in a  

manner in which they have been trained to handle the victims of  

such offences.  These one stop centres should also have adequate  

medical facilities to provide immediate medical aid to the victims  

and the medical examination of the victims can be conducted at  

the centre itself.  These one stop centres should also have video  

conferencing facility available where the statement of the victims  

to be mandatorily recorded under Section 164 CrPC can be  

recorded using video conferencing facilities and the victims need  

not be produced in the court of the magistrate.  There should be  

court room(s) in these one stop centres which can be used for  

trial of such cases.  As far as possible these centres should not  

be situated within the court complex but should be situated near  

the court complex so that the lawyers are also not  

inconvenienced.  Resultantly, the victims of such offences will  

never have to go to a court complex which would result in a   

victim friendly trial.  Once such centre which has already been

38    

set up is “BHAROSA” in Hyderabad.  This can be used as a model  

for other one stop centres in the country.  

43. In view of the aforesaid discussion, we issue the following  

directions:-  

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.   

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 authorization of the next of  

the 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.    

3. FIRs relating to offences under Sections 376, 376A,  

376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of

39    

IPC  and offences under POCSO shall not be put in the  

public domain.  

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.   

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.    

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.

40    

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 228A(2)(c) of IPC should  

be made only to the Sessions Judge concerned until  

the Government acts under Section 228A(1)(c) and lays  

down a criteria as per our directions for identifying  

such social welfare institutions or organisations.    

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.   

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.    

44. A copy of this judgment be sent to the Registrar General of  

all the High Courts so that the same can be placed before the  

Chairpersons of the Juvenile Justice Committee of all the High  

Courts for issuance of appropriate orders and directions and also

41    

to ensure that sincere efforts are made to set up one stop centres  

in every district.  

45. In view of the above, we dispose of these petitions as far as  

issues dealt with hereinabove are concerned.  

….……………………..J.  (MADAN B. LOKUR)  

.….…………………….J.  (DEEPAK GUPTA)  

New Delhi  December 11, 2018    

42    

ANNEXURE – 1  

(Directions issued by the Calcutta High Court in the case  of Bijoy v. State of West Bengal, 2017 Cri.L.J.3893)  

1. Police Officer or the Special Juvenile Police Unit receiving  

complaint as to commission or likelihood of commission of  

offence under the Act shall forthwith register the same in  

terms of Section 19 of the Act and furnish a copy free of cost  

to the child and/or his/her parents and inform the child or  

his/her parents or any person in whom the child has trust  

and confidence of his/her right to legal aid and  

representation and if the child is unable to arrange for  

his/her legal representation, refer the child to the District  

Legal Services Authority for necessary legal  

aid/representation under section 40 of the Act. Failure to  

register First Information Report in respect of offences  

punishable under sections 4, 6, 7, 10 & 12 of POCSO shall  

attract penal liability under section 166-B of the Indian  

Penal Code as the aforesaid offences are cognate and/or  

pari materia to the Penal Code offences referred to in the  

said penal provision.   

43    

2. The Police Officer on registration of FIR shall promptly  

forward the child for immediate emergency medical aid,  

whenever necessary, and/or for medical examination under  

section 27 of the Act and ensure recording of the victim's  

statement before Magistrate under Section 25 of the Act. In  

the event, the Police Officer or the Special Juvenile Police  

Unit is of the opinion that the child falls within the  

definition of "child in need of (sic) care and protection” as  

defined under Section 2(d) of the Juvenile Justice (Care and  

Protection of Children) Act, 2000, [as suitably modified by  

the Juvenile Justice (Care and Protection of Children) Act,  

2015 (sic)] the said Police Officer or the Special Juvenile  

Police Unit shall forthwith forward the child to the  

jurisdictional Child Welfare Committee for providing care,  

protection, treatment and rehabilitation of the child in  

accordance with law.  

3. Whenever a registration of FIR is reported to the Special  

Court, the Special Court shall make due enquiries from the  

investigating agency as to compliance of the aforesaid  

requirements of law as stated in (1) and (2) above and pass

44    

necessary orders to ensure compliance thereof in  

accordance with law, if necessary.   

4. Officer-in-Charge of the police station and the Investigating  

Officer in the case including the Special Juvenile Police Unit  

shall ensure that the identity of the victim is not disclosed  

in the course of investigation, particularly at the time of  

recording statement of the victim under section 24 of the  

Act (which as far as practicable may be done at the  

residence or a place of choice of the victim or that of his/her  

parents/custodian, as the case may be), his/her  

examination before Magistrate under section 25 of the Act,  

forwarding of the child for emergency medical aid under  

section 19(5) and/or medical examination under section 27  

of the Act.   

5. The Investigating Agency shall not disclose the identity of  

the victim in any media and shall ensure that such identity  

is not disclosed in any manner whatsoever except the  

express permission of the Special Court in the interest of  

justice. Any person including a police officer committing

45    

breach of the aforesaid requirement of law shall be  

prosecuted in terms of section 23(4) of the said Act.   

6. Trial of the case shall be held in camera in terms of section  

37 of the Act and evidence of the victim shall be promptly  

recorded without unnecessary delay and following the  

procedure of screening the victim from the accused person  

as provided in section 36 of the Act. The evidence of the  

victim shall be recorded by the Court in a child friendly  

atmosphere in the presence of the parents, guardian or any  

other person in whom the child has trust and confidence by  

giving frequent breaks and the Special Court shall not  

permit any repetitive, aggressive or harassive questioning of  

the child particularly as to his/her character assassination  

which may impair the dignity of the child during such  

examination. In appropriate cases, the Special Court may  

call upon the defence to submit its questions relating to the  

incident during cross-examination in writing to the Court  

and the latter shall put such questions to the victim in a  

language which is comprehensible to the victim and in a  

decent and non-offensive manner.  

46    

7. In the event, the victim is abroad or is staying at a far off  

place or due to supervening circumstances is unable to  

physically attend the Court to record evidence, resort shall  

be taken for recording his/her evidence by way of video  

conference.  

8.  The identity of the victim particularly his/her name,  

parentage, address or any other particulars that may reveal  

such identity shall not be disclosed in the judgment  

delivered by the Special Court unless such disclosure of  

identity is in the interest of the child.   

9. The Special Court upon receipt of information as to  

commission of any offence under the Act by registration of  

FIR shall on his own or on the application of the victim  

make enquiry as to the immediate needs of the child for  

relief or rehabilitation and upon giving an opportunity of  

hearing to the State and other affected parties including the  

victim pass appropriate order for interim compensation  

and/or rehabilitation of the child. In conclusion of

47    

proceeding, whether the accused is convicted or not, or in  

cases where the accused has not been traced or had  

absconded, the Special Court being satisfied that the victim  

had suffered loss or injury due to commission of the offence  

shall award just and reasonable compensation in favour of  

the victim. The quantum of the compensation shall be fixed  

taking into consideration the loss and injury suffered by the  

victim and other related factors as laid down in Rule 7(3) of  

the Protection of Children from Sexual Offences Rules, 2012  

and shall not be restricted to the minimum amounts  

prescribed in the Victim Compensation Fund. The  

interim/final compensation shall be paid either from the  

Victim Compensation Fund or any other special  

scheme/fund established under section 357A of the Code of  

Criminal Procedure, 1973 (sic) or any other law for the time  

being in force through the State Legal Services Authorities  

or the District Services Authority in whose hands the Fund  

is entrusted. If the Court declines to pass interim or final  

compensation in the instant case it shall record its reasons  

for not doing so. The interim compensation, so paid, shall  

be adjusted with final compensation, if any, awarded by the

48    

Special Court in conclusion of trial in terms of section 33(8)  

of the Act.   

10.  The Special Court shall ensure that the trial in cases  

under POCSO is not unduly protracted and shall take all  

measures to conclude the trial as expeditiously as possible  

preferably within a year from taking cognizance of the  

offence without granting unreasonable adjournment to the  

parties in terms of section 35(2) of the Act.  

*****