Laxmi Narayan vs State NCT Of Delhi

Vikas Mahajan, J.

Whether it is mandatory to video record the present bail proceedings in terms of Section 15A(10) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989, [in short ‘the Act’] arising out of a criminal case relating to the offences under the Act, is the short question to be considered in the present judgment.

To put the entire discussion that is to follow into context, it is apposite to reproduce at the outset the relevant extract of Section 15A(10) of the Act, which reads as under:

(emphasis supplied)

The petitioner has filed the present petition seeking regular bail under Section 439 CrPC in connection with FIR No.0261/2021 under Sections 302/304/376/342/506/201/34 IPC, Section 6 of POCSO Act and Section 3 of the SC/ST Act registered at Police Station Delhi Cantt, South-West, Delhi. A similar bail application of the petitioner filed under Section 439 CrPC was rejected by the Court of learned ASJ-01 (POCSO), Patiala House Courts, New Delhi vide order dated 08.06.2023.

Mr. Mehmood Pracha, the learned counsel appearing on behalf of the complainant at the outset has made a submission that in view of sub-section (10) of Section 15A of the Act, all proceedings relating to offences under the Act, including the present one, are to be video recorded.

Elaborating on his submissions, he submits that term ‘victim’ has been defined under Section 2(1)(ec) of the Act to mean - “any individual who falls within the definition of the Scheduled Castes and Scheduled Tribes under clause (c) of sub-section (1) of section 2, and who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of any offence under this Act and includes his relatives, legal guardian and legal heirs.”

He contends that as in the present case, the minor daughter of the complainant was raped and murdered by the accused persons and for the reason that the complainant belongs to the Scheduled Caste community, he is a victim within the meaning of Section 2(1)(ec) of the Act. Further, as some of the offences invoked in the present case are under the Act as well, the provisions of Section 15A(10) of the Act will apply to the present bail proceedings and it is obligatory to video record the same.

To buttress his contention, he has referred to the Statement of Objects and Reasons of the Amending Act 1 of 2016 whereby the Act was amended to insert Chapter IVA in the Act, to contend that the amendment has been brought about to outline in greater detail and strengthen the public accountability provisions under the Act. He submits that the title of Chapter IVA of the Act, as well as, caption of Section 15A is - ‘Rights of victim and witnesses’ thus, it is the right of a victim as defined under Section 2(1)(ec) to seek video recording of the proceedings and the same needs to be protected.

In support of his submission, Mr. Pracha has relied on a decision of the High Court of Bombay in Dr. Hema Suresh Ahuja and Others vs. State of Maharashtra and Another, 2024 SCC OnLine Bom 784 as well as on a decision of Kerala High Court in State of Kerala vs. Nowfal, Crl. M.C. No. 3970 of 2021.

Per contra, Mr. Ritesh Kumar Bahri, learned APP for State has relied on a decision of the Hon’ble Supreme Court in Nipun Saxena and another vs. Union of India and others, (2019) 2 SCC 703, to submit that in the said decision it has been specifically held by the Hon’ble Supreme Court that no person can print or publish in print, electronic, social media, etc., the name of the victim under the POCSO Act or even in a remote manner disclose any fact which can lead to the victim being identified and which should make her identity known to public at large.

He also refers to Section 23 of the POCSO Act and Section 228A IPC, which in effect punish the disclosure of the identity of the victim of sexual offences, to submit that the said provisions will override the provision of Section 15A(10) of the Act.

In this backdrop, he contends that the bail proceedings in the present case which involves offences under the POCSO Act as well, need not be video recorded. He has placed reliance on a decision of the High Court of Sikkim at Gangtok in Subash Chandra Rai vs. State of Sikkim, 2018 SCC OnLine Sikk 29 as well as on a decision of a coordinate bench of this Court in Saleem vs. State of NCT of Delhi & Anr., 300 (2023) DLT 714, to submit that the identity of victim under the POCSO Act should not be disclosed in any manner, whatsoever.

Similar argument has been put forth by the learned counsel for the petitioner / accused.

In rejoinder, Mr. Pracha submits that the argument advanced by the prosecution and by the learned counsel for the accused that Section 23 of the POCSO Act and Section 228A IPC will override the provision of Section 15A(10) of the Act, is not tenable for the following reasons, firstly, Section 15A(10) speaks only of video recording of the proceedings and does not, at all, say anything about publication of video recording, or even supply of such recording to any person. Secondly, Section 23 of the POCSO Act and Section 228A IPC are, in fact, in the nature of safeguard to protect the identity of the victim of sexual offence, which will apply to the video recordings under Section 15A(10) of the Act, with equal force.

He submits that such video recording cannot be provided to any person other than the victim. Therefore, it is his submission that identity of the victim remains protected even if the proceedings are video recorded. He further adds there is no conflict between the provisions of Section 15A(10) of the Act on one hand and Section 23 of the POCSO Act and Section 228A IPC on the other hand. He places reliance on the decisions in Sarwan Singh & Anr v. Kasturi Lal 1977 (1) SCC 750 and Ajoy Kumar Banerjee & Ors. v. Union of India & Ors., 1984 (3) SCC 127, to contend that the need for resolution of a conflict between two statutes arises only when there is an actual conflict between the provisions and when the provisions operate in the same field, which is not a case here.

He submits that in any case, Section 20 of the Act provides for an overriding effect over other laws. He also places reliance on the observations of the Hon’ble Supreme Court in Solidaire India Ltd. v. Fairgrowth Financial Services, (2001) 3 SCC 71, to contend that it is trite law that when two enactments contain non-obstante clauses, the provision enacted later in time would prevail. Elaborating further, he submits that Section 15A(10) of the Act was introduced by an amendment in the year 2016, thus, the Legislature was aware about the provisions of Section 228A IPC and Section 23 of the POCSO Act, which were introduced/enacted in the years 1983 and 2012, respectively.

Dilating further, Mr. Pracha has also drawn attention of the Court to the provisions of Section 3(1)(w) and Section 3(2)(va) of the Act to submit that the legislature intended compliance of Section 15A(10) in respect of sexual offences under the Act, as well as, the IPC involving female victims whose identity, under the law, is required to be protected.

He thus, urges that Section 15A(10) makes abundantly clear that the video recording the proceedings is mandatory.

I have heard the learned counsel for the complainant, learned APP for the State as well as the learned counsel for the accused.

Undisputedly, the deceased as well as complainant, who is father of the deceased, were/are from the Scheduled Caste community. Further, some of the offences which have been invoked in the FIR are also under the Act. It is in this factual backdrop that the moot question as noted in opening part of the judgment assumes relevance. To be noted that after hearing arguments of both sides, the judgment was reserved by this Court only confined to the said question.

To find an answer to above question that still looms large, it needs to be noticed that preamble of the Act provides that it was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for special courts and the exclusive special courts for the trial of such offences and for the relief and rehabilitation and the victims of such offences and for matters connected therewith or incidental thereto.

Later, taking into account that the atrocities against the members of the Scheduled Castes and Scheduled Tribes have continued at a disturbing level and the existing provisions of the Act were found to be inadequate to deal with the same, the legislature amended the Act in the year 2016. By virtue of said amendment, Section 14 and 15 were substituted whereas new Section 14A was inserted in Chapter IV. Likewise, a new Chapter IVA was introduced which contains Section 15A.

It is apposite at this stage to refer to relevant extract from the Statement of Objects and Reasons of the Amending Act of 2016, which reads as under:

Reading of sub-section (3)^{11.15(3) A victim or his dependent shall have the right to reasonable, accurate, and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act.} of Section 15A of the Act shows that it has been made obligatory on part of the Court, as well as, the Special Public Prosecutor / State Government to put the victim to notice about the proceedings under the Act including any bail proceeding. Likewise, under sub-section (5)^{22.15(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.} of Section 15A, the victim or his dependent also have a right to be heard at any proceedings under the Act in respect of bail. Clearly, the expression proceeding(s) in the above provisions has been used in the context of bail. If the provision of sub-section (10)^{33.15(10) All proceedings relating to offences under this Act shall be video recorded.} of Section 15A of the Act is seen in this backdrop, the reference to the expression ‘proceedings’ therein will undoubtedly include the ‘proceedings’ in respect of bail, both before the learned Special Court and the High Court, whether under Section 14A of the Act or under Section 439 CrPC. Further, use of prefix ‘all’ before the expression “proceedings” shows the intention of the legislature to give widest amplitude to the applicability of sub-section (10) of Section 15A. The expression ‘All proceedings’ is followed by the expression “relating to offences under the Act”, which also emphasize the intention of the legislature to give wider applicability to the provisions of Section 15A(10). The expressions “in relation to”, “pertaining to” and “concerning with” have been held to be the expressions of expansion and not of contraction.^{44.[Ref. Doypack Systems (P) Ltd. Vs. Union of India, (1988) 2 SCC 299].}

The Statement of Objects and Reasons of the Amending Act also makes abundantly clear that amendment to the Act was brought about as it was felt that the public accountability provisions under the Act need to be outlined in greater detail and strengthened. At the same time certain duties and responsibilities have been imposed upon the State for making necessary arrangements for protection of victims, their dependants and witnesses. Clearly, the newly introduced Chapter IVA and Section 15A have been enacted for the benefit of the victims, their dependants and witnesses belonging to the Scheduled Castes and Scheduled Tribes, therefore, it is a social piece of legislation and its provisions have to be liberally and meaningfully construed so as to advance the objects of the Act, as well as, the cause of public at large. A reference in this regard may be had to the decision in UPSEB vs. Shiv Mohan Singh, (2004) 8 SCC 402.

Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it is to be interpreted according to the plain meaning of the said statutory provision. In the present case, the language of the provision of Section 15A(10) is clear and admits of no ambiguity, thus, expression “all proceedings relating to the offences under this Act” will include the bail proceedings before the Special Court, as well as, before the High Court in relation to the offences under the Act.

I am supported in my view by a decision of the High Court of Bombay in Dr. Hema Suresh Ahuja (supra). In the said decision, the Division Bench of Bombay High Court was requested to answer the following questions referred by the learned Single Judge, in view of the conflicting opinion of two co-ordinate benches:

In the light of objects and reasons of the Amending Act and the language employed in Section 15A(10) of the Act, the Division Bench of the High Court of Bombay observed as under:

A similar view has been taken by the High Court of Kerala in Nowfal (supra). In the said case, during the proceedings of bail a request was made by the prosecution to video record the proceedings before the Special Court, which was rejected by the Special Court. However, on petition being preferred by the State, the High Court observed thus:

Now adverting to the submission that the proceedings in relation to sexual assault under IPC and the POCSO Act ought not to be recorded to protect the identity of the victim it may be noted that Section 228A of IPC provides punishment for the act of disclosing the identity of the victim of certain offences like Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E. Likewise, Section 23 of the POCSO Act also emphasizes on safeguarding the identity of the child victim who has been sexually abused. Incidentally, Section 15A(10) while providing that all proceedings under the Act shall be video recorded makes no reference to the dissemination of such recording to anyone, which means that the recording is to be preserved for the usage of Court. If at all such recording is to be provided to the victim, his/her advocate or to the Non-Government Organisations, social workers for the purpose of their use in the proceedings under the Act, it need not be given unless specifically ordered by the Court.

Thus, the identity and anonymity of the victim in terms of Section 228A of IPC and Section 23 of the POCSO Act can be safeguarded and ensured while video recording the bail proceedings under Section 15A(10) of the Act. Further, having regard to the nature of offence involved, the Court may resort to in camera proceedings in terms of Section 37 of the POCSO Act or Section 327(2) of the Code of Criminal Procedure, 1973 or under the equivalent provisions of Bharatiya Nagrik Suraksha Sanhita, 2023, as the case may be, to protect the privacy and identity of the victim.

There is another angle from which the controversy at hand can be approached. Section 3(1)(w)^{55.3. Punishments for offences of atrocities.—(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— xxxx xxxx xxxx (w) (i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient‘s consent; (ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe. xxxx xxxx xxxx shall be punishable with imprisonment for a term which shall not be less than six months but which may extend five years and with fine.} of the Act provides for punishment for the offense of touching in a sexual manner a woman belonging to a Scheduled Caste or Scheduled Tribe and also punishes the use of words, acts, or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or Scheduled Tribe. Likewise, Section 3(2)(va)^{66.(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— xxxx xxxx xxxx (va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;} of the Act takes within its sweep the IPC offences including those under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E against victim belonging to Scheduled Caste / Scheduled Tribe community. The legislature has not carved out any exception in Section 15A(10) of the Act for the sexual offences made punishable under Section 3(1)(w) and Section 3(2)(va). It is thus, amply clear that the legislature intended compliance of Section 15A(10) in respect of sexual offences committed under the Act as well as under IPC involving female victims whose identity, under the law, is required to be protected.

Clearly, there is no inconsistency between the provisions of recording of the bail proceedings to protect the rights of the victims under Section 15A(10) of the Act on one hand and Section 228A of IPC and Section 23 of the POCSO Act on the other hand.

This view is fortified by a decision of the High Court of Kerala in Nowfal (supra) wherein it has been held that even in case of sexual assault of a victim under the Act, the anonymity of the victim can be adequately protected and safeguarded during the video recording under Section 15A (10) of the Act by employing strategies like giving dummy names to the victims, face masking or pixelation of face etc. Moreover, the video recording will be maintained exclusively for usage by the Courts. The relevant extract from the decision reads thus:

The upshot of the above discussion is that the provisions of Section 15A(10) of the Act are mandatory and the present bail proceedings will have to be video recorded.

It is, however, clarified that this judgment will not affect the cases in which proceedings in terms of Section 15A(10) of the Act have not been video recorded and it will take effect prospectively.

List the bail application before the Roster Bench on 04.09.2024.