In Camera Trials and Proceedings in Sexual Offences

Section 366(2) and (3), BNSS 2023

(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under the sections of the Bharatiya Nyaya Sanhita, 2023 which the section specifies shall be conducted in camera:

Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court.

Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings except with the previous permission of the Court:

Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.

📖 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384

Facts: A prosecution for rape ended in acquittal, the trial court having disbelieved the prosecutrix on grounds relating to her conduct and having conducted the trial in open court. The Supreme Court examined both the approach to the evidence of a prosecutrix and the manner in which such trials should be conducted.

Held: The Supreme Court held that the provision requiring such trials to be held in camera is not a dead letter and that trial courts should as a matter of course hold the trial of a rape case in camera rather than in open court. The Court explained the object: the trial is an ordeal for the prosecutrix, who must depose about a humiliating and traumatic event, and an in-camera trial enables her to be more comfortable and to depose without embarrassment, which improves the quality of her evidence and assists the court in arriving at the truth. It is therefore in the interest of the administration of justice as much as of the victim. The Court directed that the identity of the victim should not be disclosed, that courts should avoid disclosing her name in their orders and judgments, that she should be treated with sensitivity in cross-examination, and that the trial should be conducted so as to avoid any unnecessary humiliation. It deprecated the practice of testing a prosecutrix by reference to her general character.

Ratio: Trials of rape should as a matter of course be held in camera. The object is to enable the prosecutrix to depose without embarrassment, which improves the quality of her evidence and serves the administration of justice as well as her dignity.

📖 Nipun Saxena v. Union of India, (2019) 2 SCC 703

Facts: The Supreme Court considered the protection of the identity of victims of sexual offences, the working of the statutory bar on disclosure, and the position of victims who are minors or who are dead or of unsound mind.

Held: The Court held that the identity of a victim of a sexual offence must not be disclosed, and that the protection is not confined to the name: no matter which may directly or indirectly disclose the identity — the address, the school, the family details, photographs — may be published. It held that the prohibition applies to the print, electronic and social media alike, and that even a remote or indirect disclosure offends it. In the case of a victim who is dead or of unsound mind, the identity may not be disclosed even by the next of kin save in the narrow circumstances the law allows and with the authorisation the statute requires. The Court also held that documents in which the victim’s identity appears should be kept in a sealed cover, that FIRs relating to such offences should not be put in the public domain, and that appellate and other courts should not disclose the identity in their judgments. It emphasised that the object of the protection is to prevent the social ostracism and hostility that disclosure invites, which deters victims from coming forward at all.

Ratio: The identity of a victim of a sexual offence must not be disclosed, directly or indirectly, in any medium. Documents disclosing identity are to be kept sealed, such FIRs are not to be put in the public domain, and courts should not name the victim in their judgments.

⚠ Two points of practical importance

Section 183(6) is the most significant of the set. It requires the account to be taken once, by a Judicial Magistrate, soon after the event. And where the maker is temporarily or permanently mentally or physically disabled, it goes further: her record is a statement in lieu of examination-in-chief, so she is cross-examined on it without giving the account again at the trial.

The identity protection is wider than the name. Nothing that directly or indirectly discloses who she is may be published — the address, the locality, the school, family details, photographs. Courts should not name her in their judgments, documents disclosing her identity should be kept sealed, and the FIR should not be put in the public domain.

The position stated shortly

1. Section 366(2): the inquiry into and trial of rape and the other specified sexual offences shall be conducted in camera. The word is shall.

2. The obligation is on the Court, of its own motion. It does not depend on an application by the prosecution or the victim.

3. It covers both the inquiry into and the trial of the offence, so it applies at the pre-trial and committal stages as well.

4. The presiding Judge may, if he thinks fit or on an application by either party, allow any particular person to have access to or remain in the court.

5. The trial shall be conducted, as far as practicable, by a woman Judge or Magistrate.

6. Section 366(3): it is not lawful to print or publish any matter in relation to such proceedings except with the previous permission of the Court — and in a rape trial the ban may be lifted subject to confidentiality of name and address.

7. Trials of rape should as a matter of course be held in camera. The object is to enable the prosecutrix to depose without embarrassment, which improves the quality of her evidence: Gurmit Singh.

8. The identity of a victim must not be disclosed, directly or indirectly, in any medium; documents disclosing it should be sealed, such FIRs kept out of the public domain, and courts should not name her: Nipun Saxena.

9. The protections run from the first information to the judgment — sections 173(1), 180, 183(6), 184, 346 and 366 — and they are cumulative.

10. Section 183(6) is the most significant: the account is taken once, by a Judicial Magistrate; and where the maker is disabled, that record stands as a statement in lieu of examination-in-chief.