Hot Off The PressNews

Supreme Court on Thursday refused to entertain a plea seeking a CBI probe into the alleged molestation of students during a cultural festival at the all-woman Gargi College here last week. A 3-judge bench of S A Bobde, CJ and BR Gavai and Surya Kant, JJ asked lawyer M L Sharma, who mentioned the matter seeking urgent hearing, to move the Delhi High Court with his plea.

“Why don’t you go to the Delhi HC. If they dismiss the petition then you come here,”

The Court said it would like to have advantage of Delhi HC’s view on this matter.

Advocate Sharma expressed apprehension that electronic evidence related to the case might be destroyed.

On this, the Court said,

“Delhi High Court can also pass order like the Telangana High Court in the police encounter case to preserve electronic evidence”.

(Source: PTI)

Case BriefsSupreme Court

Supreme Court: In a bid to make criminal justice system responsive in cases relating to sexual assaults, a 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ has sought information with regard to status of affairs at ground level from various duty holders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view.

Taking note of the fact that post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial, the Court noticed that still the desired results were not achieved and that as per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India. It said,

“The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.”

Here are some of the most important information sought by the Court:

Registration of FIR by woman police officer

  • whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?
  • whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?

Failure of a public servant to record any information of sexual assault offences

  • whether any case has been registered under the Section 166A of IPC against any public servant?
  • whether there is any mechanism in place to complain about the non-recording of information by the officer giving cause to offence under Section 166A with any other institution/office, other than the concerned police station?

Medical treatment and examination of the victim

  • whether any advisory or guidelines have been issued by the authorities to all the hospitals and medical centres in this regard?
  • whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two-finger test’ and whether any directions have been issued by the states in this regard?
  • whether medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim or any directions have been issued by the states in this regard?
  • whether the Medical Opinion in the cases relating to rape and similar offences is being given in tune with definition of rape under Section 375 of IPC as it stands today?
  • whether the states have adopted the Guidelines & Protocols of The Ministry of Health and Family Welfare, Government of India or have they prepared their own Guidelines & Protocols?
  • whether requisite Medico-forensic kit are available with all the hospitals/health centres run by the Government or by local authorities?

“Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial.”

Completion of Investigation

  • whether police is completing the investigation and submitting the final report within a period of two months from the date of recording of information of the offence and if no, reasons for delay?

Trial before a woman judge

  • whether trial of cases relating to rape are being conducted by Courts presided over by a woman?
  • whether sufficient number of lady judges are available to preside over the Courts dealing with sexual offences and rape?
  • whether all courts holding trial of cases relating to offence of rape have requisite infrastructure and are conducting in camera trial?
  • whether the trial relating to cases of rape is being completed within a period of two months from the date of filing of charge-sheet, if not, the reasons for the delay?

Victim and witness protection

  • whether any policy of victim/witness protection in the cases relating to rape is framed and implemented?
  • whether police protection is being provided to the victim during investigation and trial of the offence?
  • whether the trial Courts have taken appropriate measures to ensure that victim woman is not confronted by the accused during the trial as mandated by Section 273 Cr.P.C.?

“The protection of witness during the investigation and trial is essential in cases of this sensitive nature. Many a times the accused live in proximity of the victim. The possibility of tampering with evidence and pressurizing the witness affects fair trial.”

Utilisation of Nirbhaya Fund

In the year 2013, a separate fund namely Nirbhaya Fund for projects of women safety to support initiatives by government and NGOs was created. The Court called for the status of utilization of the Nirbhaya Fund by Central or State Government(s).

Senior Advocate Siddharth Luthra will assist the Court as Amicus Curiae in the matter and the matter will next be taken up on 07.02.2020.

[In re: Assessment of the Criminal Justice System in response to Sexual Offences, 2019 SCC OnLine SC 1654, order dated 18.12.2019]

Case BriefsSupreme Court

Supreme Court:

“The presence of lady members in the police force, considering the crime against women, is a prime need of the hour. Thus we feel that every endeavor should be made to ensure that there is higher representation of women in the police services.”

Granting relief to women candidates who could not appear for the physical test during the selection process for Bihar Police held in 2018 because of their pregnancy, the Court has directed the Bihar Police Subordinate Service Commission to conduct a fresh test for such applicants. The bench of Sanjay Kishan Kaul and Krishna Murari, JJ has asked the Commission to conduct the physical test of the candidates and adjust them against vacancies notified this year. The Court said,

“We are of the view that not only the appellant but all such candidates who sought deferment on account of pregnancy alone should be called for PET.”

It was brought to the Court’s notice that the total number of ladies who claimed extension of PET on the basis of pregnancy or injuries is stated to be 78 in all, out of which 73 are on account of pregnancy. Noticing that it is on the prodding of the Supreme Court that these examinations were held, the Court said that had recruitments taken place in accordance with certain pre-defined schedules, intervention of this court would not have been called for as candidates would have known as to when recruitment would take place and would have to plan their life accordingly. The Court, hence, held that

“it is a fit case where the benefit should be made available to the candidates who may be in the advance stage of pregnancy at the relevant stage of time but have otherwise qualified the test.”

The Court, hence, directed that out of the candidates so called those who qualify the PET and are otherwise found in the merit for appointment alone would be eligible to be considered for appointment, subject to verification of the factum of pregnancy. Such process should be completed within a period of two months. All such people will, however, take merit at the bottom of the current list as it is the vacancies which are now advertised against which the candidates are being adjusted.

The bench, however, clarified that the aforesaid direction was a one-time measure as now the examinations are being held periodically. It, said,

“We are not inclined to open a flood gate effecting the sanctity of the future examination.”

Case Timeline

  • Bihar Police Subordinate Service Commission issued advertisement dated 16th September, 2017 to fill the vacancies for the post of Police Sub Inspector in the State of Bihar.
  • Preliminary examination was conducted on 11th March, 2018
  • Main examination was conducted on 22nd July, 2018.
  • Physical Evaluation Test (PET) which was scheduled for 25th September, 2018.
  • The appellant being in advance stage of pregnancy where the delivery was expected in the month of October, 2018 sought an extension of PET for three to six months on account of being completely on bed rest as advised by the doctor.
  • There was no response to this representation and the appellant thus filed a writ petition before the Patna High Court which was allowed by order dated 3rd October, 2018, directing the Commission to fix any date after two months after informing her of the date of the PET.
  • The Division Bench overturned this decision on 1st March, 2019.

[Khushbu Sharma v. Bihar Police Subordinate Service Commission, 2019 SCC OnLine SC 1323, order dated 27.09.2019]