Can't Prosecute Magistrate U/S 228-A IPC For Inadvertent Omission To Anonymize Rape Victim's Details: Kerala HC Emphasizes Judicial Caution

For context, Section 228-A IPC relates to disclosing the identity of the victim of certain offences under Section 376 IPC etc. It is an offence triable by a Magistrate and punishable by up to two years imprisonment and a fine.

Justice Devan Ramachandran observed that the protection offered to judicial officers under the Judges (Protection) Act, 1985 was plenary and protects them from any action initiated qua an act, thing or word committed, done or spoken by him/her during the discharge of their official or judicial duties.

“In the case at hand, it is indubitable that the learned Magistrate was acting in performance of judicial duties and the error committed by her, or her office, is that the order was not anonymised qua the petitioner. This Court cannot, therefore, find the request of the petitioner, for initiation of action against the learned Magistrate under Section 228 A of the IPC, to be worthy of grant, specifically within the ambit of the said Section, read with the provisions of the Judges (Protection) Act, 1985. “, the Court stated.

The Court being conscious of the plight and agony of the victims directed the judges to be careful in maintaining the anonymity of victims of sexual offences. The Court thus suggested that judicial officers anonymize the details of victims of sexual offences at the inception of the case itself before proceeding to continue with it.

“This Court, therefore, suggests that, in matters like this, wherever petitions are filed by or against victims of sexual offences-as specified under Section 228 A of the IPC – Judges and Judicial Officers must initiate immediate action to anonymise the details, particularly their names and addresses, before continuing with consideration of the applications/cases; and if this is done at the inception, obviously, the final orders will also carry such anonymisation. This should be done and ensured to be done.”

The petitioner was a victim of a sexual offence committed by a police officer. The accused in that case was granted bail. The victim filed an application for cancellation of his bail which was dismissed but her name and details were shown in the judgment due to an obvious omission from the side of the Magistrate Court.

The petitioner approached the High Court for anonymizing her details from the official records as well as sought for an action to be taken against the Magistrate under Section 228-A IPC.

The Counsel for the petitioner, Advocates V Sethunath, V R Manoranjan, Thomas Abraham, Sreeganesh U, Lakshminarayan R submitted that the victim faced immeasurable and indescribable ridicule and prejudice on her identity becoming public.

The Counsel for the respondents, Advocates Harindranath B G, Amith Krishnan H submitted before the Court that action cannot be taken against the Magistrate due to protection offered to the judicial officers under the Judges (Protection) Act, 1985 and by also relying upon the decision in Suresh and Another v. State of Kerala Represented by the Chief Secretary and Others (2019). It was also argued that an inadvertent omission from the Judicial Magistrate cannot lead to prosecution under Section 228-A of IPC.

The Court observed that the Magistrate ought to have been careful and should have anonymized the details of the victim from the judgement. “The requirement of maintaining the secrecy with respect to the identity of the victim of a sexual offence being inviolable, there cannot be any doubt that the learned Magistrate ought to have been more careful, while issuing the order in question”, the Court stated.

The Court observed that Section 228-A IPC operates only against persons who print or publish names and details of victims to reveal their identity. It further stated that action cannot be taken against judicial officers who were considering applications or petitions filed by victims for an inadvertent omission to anonymize details from proceedings of the court or orders. The Court also stated that the explanation in Section 228A provides that no action shall lie against the High Court and Supreme Court under this Section.

Further, the Court also stated that cause titles of judgments were prepared by court officers and only the judgments were corrected and verified by judicial officers.

The Court stated that this should be an eye-opener to all judicial officers and suggested that they remove the details of victims at the inception of the case itself before proceeding with it to ensure that anonymity was maintained in the proceedings or orders. 

The Court also directed the registry to circulate a copy of the judgment to all the judicial officers as well as to the Director of the Kerala Judicial Academy for taking action and compliance.

Accordingly, the Court directed the Magistrate to anonymize the name and details of the petitioner from all proceedings and orders within two weeks.

Citation: 2023 LiveLaw (Ker) 748

Case title: XXX v State of Kerala

Case number: WP(C) NO. 40709 OF 2023

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