1
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
2
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 subSection (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
3
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
4
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 subSection 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?
5
(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
6
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: Medicolegal 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
7
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 genderbased 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.”
8
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?
9
(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
10
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
11
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
12
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?
13
(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 crossexamination of each witness, or set of
witnesses;
vii. while granting a request for
deferral of cross-examination of any
14
witness, the trial courts must specify a
proximate date for the cross-examination
of that witness, after the examinationin-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?
15
(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
16
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?
17
(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
18
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
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
2
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 subSection (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
3
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
4
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 subSection 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?
5
(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
6
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: Medicolegal 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
7
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 genderbased 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.”
8
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?
9
(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
11
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
12
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?
13
(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 crossexamination 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 examinationin-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?
15
(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
16
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?
17
(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
18
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
