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Accused Not Entitled To Materials Affecting Privacy Of Sexual Offence Victim On Ground That Her Identity Is Already Disclosed In Public: Kerala HC

Tellmy Jolly

27 Aug 2024 4:30 PM IST

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Accused Not Entitled To Materials Affecting Privacy Of Sexual Offence Victim On Ground That Her Identity Is Already Disclosed In Public: Kerala HC

The Kerala High Court has recently reiterated that publishing any details which would affect the privacy of a victim of sexual assault is prohibited and to say that since her privacy has been disclosed in public by other publication modes would be enough to give the accused such details, would add "pepper" to the victim's wound.The high court was considering the issue whether the disclosure...

The high court was considering the issue whether the disclosure of the privacy of a victim of sexual offence, as against the prohibitions, by any agency either in the internet or in social media platform or other medias, is a "justifiable ground" to provide copy of the documents affecting the privacy of the victim, to the accused to defend himself.

Referring to the decisions of the Supreme Court in Gopalakrishnan@Dileep v. State of Kerala (2019) and Nipun Saxena v. Union of India a single judge bench Justice A. Badharudeen observed,

"Going by the law settled, as discussed herein above, publication of anything which would affect the privacy of a victim is not permitted. If anybody violates the said prohibition by publishing the same in any mode, he is answerable for the same as per law and the same would require deletion from the domain of the public at the earliest opportunity on noticing the same. Further disclosing the identity of rape victims itself is an offence under Section 228-A of IPC. If so, it is difficult to lay down a proposition that since privacy has been disclosed by any other means of publication to have access to the public is a reason to provide the same to the accused to add pepper on the wound of the victim and intimate upon the privacy of the victim".

Background

The high court was hearing the plea moved by a man, one of three accused booked for raping a 14 year old girl in a 2019 FIR registered under various provisions of the IPC including Section 376(2) (i) (commits rape on a woman when she is under sixteen years of age), 376(2)(n) (commits rape repeatedly on the same woman accused of) as well as provisions of the Protection of Children From Sexual Offences Act and the Information Technology Act.

The man had first approached the Fast Track Special Court for pen drive, still photos, voice messages and WhatsApp chats through mobile phones that were seized by the investigating officer. The Special Court allowed his plea in part directing the prosecution to furnish to the man a copy of certain documents "except the contents of the pen drive and other pictures of the victim involving her privacy and identity".

The Special Court further permitted the man or his counsel to inspect the contents of the pen drive and other such pictures, if necessary, however with the court's permission. The trial court ordered this while observing that "to balance the interests of the victim for securing her privacy and identity and the accused to have effectively defend himself during trial, instead of furnishing copy of the pen drive to the petitioner and other accused, permitting inspection of the contents of pen drive and other offensive pictures, if any, to the accused and their counsel will meet the ends of justice".

The man however contended before the high court that the documents demanded by him were already published on a website and available in the public domain and that he is entitled to its copies under Sections 207 and 208 of CrPC, to effectively conduct his defence during the trial.

Meanwhile the prosecution contended that the visual contents contain physical evidence of the commission of the crime and furnishing copies of documents to the accused would cause insult to the victim.

Decision

The high court referred to the decision of the Supreme Court in Gopalakrishnan @ Dileep and noted that the Apex Court had laid down that the contents of electronic records like memory cards or pen drives must be considered as documents. The Apex Court had held that the accused must be provided with a cloned copy of these documents. However, if the case involves privacy issues for the victim, then the Court may be justified in limiting the accused and their lawyers or experts to only inspecting these documents, the apex court had said.

The High Court further referred to the apex court's decision in Nipun Saxena wherein conditions were laid down to protect the identity and privacy of victims of sexual offences including POCSO Act cases.

Referring to both the decisions, the high court upheld the order of the Special Court and held, "In view of the discussion, it is found that Annexure-A2 order passed by the learned Special Judge following the decisions of the Apex Court is perfectly justified and for which no interference is called for".

It thereafter went on to dismiss the man's plea.

Counsel for Petitioner: Advocates Nirmal S, Veena Hari, Ria Elizabeth Joseph, Irene Elza Soji, K. Remiya Ramachandran Anjana A.

Accused Not Entitled To Materials Affecting Privacy Of Sexual Offence Victim On Ground That Her Identity Is Already Disclosed In Public: Kerala HC

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