Guidelines On Sexual Assault Cases: Roles And Responsibilities Of Police Officials And Other Stakeholders

To speak of the executive front, special steps that shall be taken in cases of sexual assault are missed, resulting in torment to the victim and their families. In addition, prosecution remains protracted on account of procedural lapses/inexpediency (e.g., delay in status/FSL reports, change of I.Os., victim not being informed, non-appointment of legal aid counsels, etc.)

Certain directions/guidelines incorporated in Standing Orders and Circulars of Delhi Police dictate procedure to be followed on receipt of a sexual assault complaint. However, they remain letters on a piece of paper and victims continue to fight without appropriate aid from the system. After a heart-wrenching precedent set by the Delhi gangrape case, one would expect authorities to react more strongly against rape/allied offences, but tragically, that’s an ideal we’re still rooting for.

In this backdrop, the article attempts to apprise readers of the roles and responsibilities of police officials and other stakeholders in cases of sexual assault so that victims/their families are not prejudiced, even if inadvertently so. Illustrated in the piece are some of the most important guidelines and directions, which remain routinely ignored despite having been explicated in Delhi Police’s practice directions and Courts’ orders/judgments.

A. Role of the Duty Officer (D.O.)

• The D.O. shall ensure that a call providing information on sexual assault is marked to a Woman Officer (of the rank of Insp./SI) posted at or attached to the police station.^[1] In case a victim approaches the police station, the D.O. should call a Woman Officer to deal with them.^[2] If no such Woman Officer is available, it is the duty of the ACP/SDPO to assign one from any other police station in the Sub-Division.
• On receipt of a complaint of sexual assault, the D.O. has a further responsibility to apprise the Rape Crisis Cell (RCC) or the Crisis Intervention Centre (CIC) of the Delhi Commission for Women (DCW) of the incident,^[3] and to make an entry in the Daily Diary to that effect.

B. Role of the Investigating Officer (I.O.)

• On receipt of a complaint of sexual assault, the I.O. must first ask the victim if they need a counsel at State expense. Right to legal counsel, even at the time of reporting incident, is available to a victim of sexual assault. They have to be specifically informed by police officials of this right before any questions are asked and the police report shall state that they were duly informed of the right.^[4]
• After making preliminary enquiry or investigation, the I.O. should escort the victim for medical examination (M.E.) along with a lady police officer.^[5] Such Officer shall ensure that the victim is medically examined at the earliest, preferably within 24 hours at the nearest government hospital or hospital recognized by the government, so that a copy of the report is available to the Magistrate who records statement of the victim u/s 164 Cr.P.C.^[6]
• The I.O. shall promptly refer clothing and other articles seized for forensic examination and request the Forensic Science Laboratory (FSL) to deal with the case on a priority basis. The request for expediting results should be put in early on, without waiting for a Court order to that effect, so that the report is available at the time of hearing.
• During interaction with the victim, the I.O. shall try to solicit all such crucial information, as would enable their production before Court. This may include - name/address and contact number of the victim (in Delhi and/or any native place), details of their parent(s) and other family members/persons with whom there has been regular contact, name of their birth place alongwith concerned Police Station, Tehsil and District, details about time of admission/leaving school/college (if relevant).^[7]
• If a bail application is preferred at any stage by person(s) accused of rape, the I.O. shall inform the complainant/victim, as well as the RCC, DCW,^[8] about the pendency of such bail application and the date of hearing, so that the complainant/victim may put their version before the Court, if they so desire, and the RCC is enabled to assist them.^[9]
• The I.O. should meet the concerned Public Prosecutor in advance, take instructions from them and act accordingly.
• The I.O. shall complete the investigation at the earliest and ensure that in no case a person accused of sexual offence gets bail by default under Section 167 Cr.P.C.^[10]
  

C. Role of the Station House Officer (SHO)

• On receipt of information regarding commission of rape, the SHO shall immediately inform the Delhi State Legal Services Authority, so it may appoint a para legal worker/social worker to get in contact with the victim.^[11] During the rehabilitation/compensation process, the SHO shall further assist the DSLSA by providing all requisite information and maintaining constant liaison.
• If the service of a Counsellor is required during night time, the SHO shall arrange transport to pick-up and drop the Counsellor.^[12] If a Counsellor refuses to assist or causes uncalled-for delay in coming, the RCC, DCW may be informed on their helpline number 011-23370557, so they may provide for an alternate Counsellor as well as take action against the erring Counsellor.

D. Responsibilities pertaining to Medical Examination

• A detailed description of ‘Assault/Abuse History’ should be incorporated by the attending doctor(s) in the MLC of the victim, ensuring in the process that the complete narration of the history of the case, as detailed by the victim and her escort, is recorded.^[13]
• To the extent possible, the help of a psychologist should be provided to a child victim before conducting M.E. at the hospital itself. When the victim is a girl child, it should preferably be conducted by a female doctor.
• If the victim is below 12 years of age, M.E. is to be conducted after obtaining consent from the child’s parent/guardian/other person of trust. The factum of their consent shall be recorded in the MLC under their signatures/thumb impressions and the same countersigned and stamped by the examining expert or gynecologist.
• If the victim is over 12 years of age and refuses M.E., the same has to be recorded in the MLC by the doctor. In such a case, efforts shall be made to get signature/thumb impression of the victim as well as their escort (if any).
• As soon as the accused is arrested, they shall also be subjected to M.E., which shall include examining for any Sexually Transmitted Disease or Sexually Transmitted Infection, with which they might be suffering (this is done so that necessary treatment may be provided to the victim at the earliest and the accused prosecuted appropriately).

Guidelines and protocols enunciated by the Ministry of Health and Family Welfare, Government of India regarding medico-legal care for survivors/victims of sexual violence can be found at <https://main.mohfw.gov.in/sites/default/files/953522324.pdf>.

E. Responsibilities pertaining to Recording of Statement

• Only after making an endeavor to make the victim/complainant feel comfortable and free from duress should the I.O. proceed towards recording the statement.
• If the victim is a child, a parent/guardian/other person in whom the child reposes trust and confidence should be allowed to be present at the time of recording of statement, unless the allegations suggest involvement of such parent/guardian/person.^[14]
• While recording statement u/s 161 Cr.P.C., pseudonyms should be used instead of real name of prosecutrix/victim, in order to protect their identity.^[15] This practice shall be adhered to also when the accused person is a juvenile.

F. Responsibilities pertaining to Preparation of Chargesheet

• It is important to note that a statement under the POCSO Act can be made only to a police officer or a Magistrate. Therefore, while preparing the chargesheet, neither should a Counsellor be cited as a prosecution witness, nor a Counselling Report be included in the list of documents to be forwarded to the Court. A Counsellor’s report and/or notes are confidential in nature and thus, they cannot be made part of the chargesheet or otherwise put on record.^[16]
• Any action required to be taken after filing of the main chargesheet (e.g., filing of any relevant document) should be mentioned in the 'Follow Up Action/Supplementary Charge Sheet Register' so that follow-up action can be undertaken even if the I.O. and/or S.H.O. is transferred subsequently.

G. Special steps to be taken in Investigation and Prosecution of Sexual Assault cases

• A list of advocates willing to act in these cases should be kept ready at the police station for victims who do not have a lawyer or whose own lawyer is unavailable.^[17]
• In cases where offence committed is punishable with sentence of 10 years or more, an e-Challan (chargesheet) shall be prepared and filed in the Court immediately.
• In case the offence has been committed in a moving vehicle, information of the vehicle should be shared with adjoining districts of Delhi as well for its early tracing.
• If the case is registered on charges of rape, it shall be ensured that the identity of the prosecutrix/victim is not revealed to the public.^[18]
• If a victim of sexual assault has no place of stay and/or family, they should be found accommodation in safe places like Nari Niketan, Short Observation Home, etc. A list of shelter homes and short stay homes (for women) functional in Delhi may be found at <https://spuwac.in/shelterhomesw.php>.
• When the victim of sexual assault is a child, the I.O. should ensure that the child does not come in contact with the accused at any point.
• Every bail matter shall be attended by the I.O. and/or the Inspector (Investigation) with a detailed brief for the Court and the Public Prosecutor.^[19]
• In sensational or gruesome sexual assault cases, a Special Public Prosecutor (SPP) may be got appointed and in-camera trial u/s 327 Cr.P.C. should be requested.
• On recommendations of Justice Usha Mehra Committee, a project by the name of 'ONE STOP CENTRE' is operative in Delhi, whereby centres have been set up in all districts to aid victims of sexual assault. These centres provide medical, legal and rehabilitative services for victims under one roof and the I.O. should avail of these wherever possible. A list of places where they have been set up in Delhi can be found at <http://jjcdhc.nic.in/?page_id=198>.

H. Liaising with other Departments/Entities

In sexual assault cases, police officials do not act in isolation (or at least, they are not supposed to). Other agencies like hospitals, Child Welfare Committees, Legal Service Authorities, prosecutors and Courts have a crucial role to play and should be duly involved. These agencies include, inter-alia –

• Rape Crisis Cell (RCC) –

The RCC was formed in 2005 to provide legal assistance to victim(s) and their families in cases of sexual assault. It operates with the help of lawyers, who are assisted, in turn, by Crisis Intervention Centres (CICs) in their endeavors. The CICs help RCC lawyers to identify cases of rape in Delhi, who then meet victims and their family members to provide assistance in form of counseling, facing trials in the Court, free legal service etc. In addition, the Cell acts in coordination with NGOs to provide medical and mental health services, shelter and financial assistance to victims. They help in the rehabilitation of victim(s) and also offer skill-development training. A list of CICs operating in Delhi may be found at <https://spuwac.in/crisisintervention.php>.

• Child Welfare Committees (CWCs) –

As per the provisions contained in the Juvenile Justice (Care & Protection) Act, 2015, a child victim of sexual assault shall be produced before the CWC as soon as possible to enable the Committee to record the version of the child. The Committee is dutybound to maintain a list of all registered Foster Homes providing residential support, special services and rehabilitation facilities to victims and to ensure that rehabilitation facilities are provided to victims in appropriate cases. In cases of prolonged stay, victims shall be given educational and vocational training also, in order to enable them to support themselves once they leave foster care.^[20] Directions of the CWC, if any, shall be duly acted upon by officials.

• Delhi State Legal Services Authority (DSLSA) -

After registration of FIR in a case of sexual violence, a copy has to be sent to the DSLSA immediately,^[21] and in no case later than 24 hours, so it can take appropriate steps to provide legal aid to the victim. At the outset, the DSLSA shall depute a social worker/para-legal worker to establish contact with the victim(s) and their family. This social worker/para-legal worker shall try to gain confidence of the victim(s) and provide necessary moral and legal support. The worker must ensure that the education of the victim(s) is not disrupted and normal life restored at the earliest.

Under the Delhi Protection of Witness Scheme, 2015, the DSLSA is the competent authority to ensure protection of victim(s), their family members and the prosecution witnesses. Any order or direction to police received from the DSLSA in this regard shall be complied with.

• Non-government organizations (NGOs) –

Certain NGOs also play a significant role in sexual assault cases insofar as counselling and rehabilitation of victim(s) is concerned. Their involvement in the process is mandatory and some are in fact affiliated to the RCC for the outlined purpose. A list of NGOs affiliated to the RCC/CIC can be found at <https://spuwac.in/nongovernt.php>.

I. The issue of jurisdiction

• When a police station receives a complaint of sexual assault, aid should be provided and investigation commenced regardless of whether or not the case falls under its jurisdiction. This includes inter-alia, recording of complaint and/or statement, inspection of spot, getting medical help, identifying the accused person(s) and their apprehension.
• For this class of offences, the entire city is to be treated as falling under jurisdiction of the police station that receives complaint, so that response is immediate and effective.
• If prompt police response is not provided on the ground of jurisdiction, strict disciplinary action should be taken against erring officials.

J. What not to do

• It cannot be emphasized enough that statement of the victim shall not be recorded mechanically. First, their psychological state needs to be assessed, as they may be traumatized (particularly when the victim is a child).
• After registration, an FIR related to sexual offence shall not be uploaded on the official website of the Delhi Police.
• No victim shall be kept in the police station overnight on any pretext, including M.E.
• Details revealing identity of victim and/or accused (if juvenile) shall not be shared by any member of the police staff. Doing so attracts penalty u/s 228A of the IPC and s. 74 of the JJ Act.
• The contents of statement of the victim u/s 164 Cr.P.C shall not be revealed to anybody until the chargesheet is filed.^[22] They may, however, be disclosed to those connected with the investigation and prosecution of the case.
• If information of sexual assault is received through telephone, which is subsequently found switched-off, and the victim or the place of occurrence are also not traceable, the call shall not be filed in a routine manner. Proper verification should be conducted from the caller/owner of the phone.
• If the victim is a child, they should neither be separated from their parent/guardian nor taken out from their environment, unless the parent/guardian is reported to be abusive or the Magistrate deems it fit in the interest of justice.^[23]
  

Note: Any woman experiencing violence, cruelty and/or dowry demand from her husband and/or in-laws, may contact Special Police Unit for Women and Children (SPUWAC) during weekdays (Monday to Friday) between 10 a.m. to 6 p.m. Alternatively, she may submit a written application at the SPUWAC or send it through post (post box number 5353, New Delhi-22).