XXX (petitioner) Vs. STATE OF KERALA (respondent)
WP(C) NO. 40709 OF 2023
(Delivered by JUSTICE DEVAN RAMACHANDRAN)
Facts: The petitioner is the hapless victim of a sexual offence allegedly committed on her by a Police Officer. It transpires that the said accused obtained bail from this Court; and, on the allegation that, in spite of the conditions imposed, he had committed further offences, the prosecution and the petitioner moved independent applications before the learned Magistrate for cancellation of his bail. Pertinently, both these applications were dismissed by the learned Magistrate; but, while delivering judgment, due to an obvious omission, in the order relating to the application of the petitioner, her name and identity were not anonymised.
Issue: Whether the omission to abide by section 228A would subject the learned Magistrate to any criminal action under Section 228 A of the IPC?
Arguments on behalf of counsel for petitioner: Sri.V.Sethunath
Learned counsel for the petitioner, submitted that his client does not harbour any grudge against the Magistrate, but that she is voicing her cri de coeur through this Writ Petition, since she had to suffer immeasurable and indescribable ridicule and prejudice, when her identity became public. He submitted that, therefore, he leaves it to this Court to take a final decision; however, praying that the learned Magistrate be directed to immediately anonymise his client’s name and address in the official address; but adding that, however, the damage has already been done.
Arguments on behalf of counsel for respondent:
Sri.B.G.Harindranath argued that, though it is without doubt that the order in question ought not to have been issued by the learned Magistrate without anonymising the name and address of the petitioner under Section 228 A of the IPC, no offence can be made out against the said officer, going by its employed phraseology. He impressed upon me that, while the imperative requirement of keeping the identity of a victim of sexual offence secret, is inviolable from the declarations of the Honourable Supreme Court in State of Punjab v. Ramdev Singh, the inadvertent omission committed by the learned Magistrate will still not expose him/her to any action under Section 228 A of the IPC, particularly when the explanation to sub clause (3) thereof renders it perspicuous that it is only the printing and publication of a judgment, except that of the High Court or Supreme Court, will amount to an offence under it. He explained that this indubitably means that even when the printing and publication of a judgment of any other Court may perhaps fall within its ambit, it will still not render the learned Magistrate susceptible to any action, for having issued it in exercise of judicial function because that is the specific tenor of the language used, while defining the provision. He thus prayed that this Writ Petition, to the extent to which the petitioner seeks action against the learned Magistrate who issued Ext.P1 order, be dismissed.
Held: The court dismissed the present writ petition holding that, “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 ‘Act’.”
The court further observed that, “it obligates this Court to declare without any ambiguity, that every Judge is to act fully conscious of the imperative requirement of maintaining anonymity of victims of sexual offences, particularly in relation to those enumerated in Section 228 A of the IPC. Many times, experience has shown that cause title of judgments are prepared by the offices of Courts concerned; while, only the judgments per se are corrected and verified by the learned Judicial Officers. The mounting number of cases adds to the problem and exacerbates mistakes; and obviously, therefore, this case should be an eye-opener to every such officer who discharges his/her duties under the ambit of penal provisions. 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.”
