Video Recording Of Bail Proceedings Under SC/ST Act Mandatory Even For Sexual Offences: Delhi HC

While clearing all the lingering doubts that were hovering on whether video recording of bail proceedings under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 (SC/ST Act) should be video graphed, the Single Judge Bench of the Delhi High Court comprising of Hon'ble Mr Vikas Mahajan in a most learned, laudable, landmark, logical and latest judgment titled Laxmi Narayan vs State NCT of Delhi in Bail Appln. 2740/2023 and cited in Neutral Citation No.: 2024:DHC:6386 that was pronounced just recently on 23.8.2024 held in no uncertain terms that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 (SC/ST Act) should be video graphed even if the alleged offences involve sexual crimes against women and children. It was held by the Delhi High Court that Section 15A(10) of the SC/ST Act, which mandates the video recording of proceedings, does not carve out any exception as regards sexual offences. The Bench held clearly that, "The legislature has not carved out any exception in Section 15A(10) of the Act for the sexual offences made punishable under Section 3(1)(w) and Section 3(2)(va). It is thus amply clear that the legislature intended compliance of Section 15A(10) in respect of sexual offences committed under the Act as well as under IPC involving female victims whose identity, under the law, is required to be protected." Very rightly so!

It must be revealed here that the Delhi High Court was hearing a bail petition that had been filed by Laxmi Narayan who is accused of the rape and murder of a minor girl belonging to a Scheduled Caste community. The accused had moved a bail application before the Patiala House Court which was however rejected. Then the accused moved the Delhi High Court.

During the hearing of bail, the learned senior advocate Mehmood Pracha appearing for the complainant-father submitted that in view of Section 15A (10) of the Act, all proceedings relating to offences under the Act, including the present one, have to be video recorded. Additional Public Prosecutor (APP) Ritesh Kumar Bahri opposed Pracha's contentions. Bahri pointed out that Supreme Court had laid down in Nipun Saxena and another vs Union of India case that no person can print or publish in print, electronic, social media, etc., the name of the victim under the POCSO Act or even disclose any remote fact which could lead to the victim being identified or which could make her identity known to public.

In the fitness of things, we see that Pracha rightly rebutted this argument by arguing vehemently that Section 15A(10) of the SC/ST Act speaks only of video recording of the proceedings and does not, at all, say anything about the publication of video recording, or even the supply of such recording to any person. It also merits attention that Pracha submitted that Section 23 of the POCSO Act and Section 228A IPC are in nature of safeguards to protect the identity of the victim of sexual offence which would apply with equal force to the video recordings under Section 15A(10) of the SC/ST Act. The Delhi High Court then clearly held that the provisions of Section 15A(10) of the SC/ST Act are mandatory and the present bail proceedings will have to be video recorded.

At the very outset, this remarkable, robust, rational and recent judgment authored by the Single Judge Bench of the Delhi High Court comprising of Hon'ble Mr Vikas Mahajan sets the ball in motion by first and foremost stipulating in para 1 putting forth that, "Whether it is mandatory to video record the present bail proceedings in terms of Section 15A(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, [in short 'the Act'] arising out of a criminal case relating to the offences under the Act, is the short question to be considered in the present judgment."

As we see, the Bench then points out in para 3 that, "The petitioner has filed the present petition seeking regular bail under Section 439 CrPC in connection with FIR No.0261/2021 under Sections 302/304/376/342/506/201/34 IPC, Section 6 of POCSO Act and Section 3 of the SC/ST Act registered at Police Station Delhi Cantt, South-West, Delhi. A similar bail application of the petitioner filed under Section 439 CrPC was rejected by the Court of learned ASJ-01 (POCSO), Patiala House Courts, New Delhi vide order dated 08.06.2023."

Do note, the Bench notes in para 19 that, "Undisputedly, the deceased as well as complainant, who is father of the deceased, were/are from the Scheduled Caste community. Further, some of the offences which have been invoked in the FIR are also under the Act. It is in this factual backdrop that the moot question as noted in opening part of the judgment assumes relevance. To be noted that after hearing arguments of both sides, the judgment was reserved by this Court only confined to the said question."

Do also note, the Bench further notes in para 20 that, "To find an answer to above question that still looms large, it needs to be noticed that preamble of the Act provides that it was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for special courts and the exclusive special courts for the trial of such offences and for the relief and rehabilitation and the victims of such offences and for matters connected therewith or incidental thereto."

While elaborating and shedding light further, the Bench then states in para 21 that, "Later, taking into account that the atrocities against the members of the Scheduled Castes and Scheduled Tribes have continued at a disturbing level and the existing provisions of the Act were found to be inadequate to deal with the same, the legislature amended the Act in the year 2016. By virtue of said amendment, Section 14 and 15 were substituted whereas new Section 14A was inserted in Chapter IV. Likewise, a new Chapter IVA was introduced which contains Section 15A."

It is worth noting that the Bench notes in para 24 that, "The Statement of Objects and Reasons of the Amending Act also makes abundantly clear that amendment to the Act was brought about as it was felt that the public accountability provisions under the Act need to be outlined in greater detail and strengthened. At the same time certain duties and responsibilities have been imposed upon the State for making necessary arrangements for protection of victims, their dependants and witnesses. Clearly, the newly introduced Chapter IVA and Section 15A have been enacted for the benefit of the victims, their dependants and witnesses belonging to the Scheduled Castes and Scheduled Tribes, therefore, it is a social piece of legislation and its provisions have to be liberally and meaningfully construed so as to advance the objects of the Act, as well as, the cause of public at large. A reference in this regard may be had to the decision in UPSEB vs. Shiv Mohan Singh, (2004) 8 SCC 402."

Most significantly, the Bench then propounds in para 25 postulating that, "Besides, it is a settled rule of interpretation that if the language of a statutory provision is unambiguous, it is to be interpreted according to the plain meaning of the said statutory provision. In the present case, the language of the provision of Section 15A(10) is clear and admits of no ambiguity, thus, expression "all proceedings relating to the offences under this Act" will include the bail proceedings before the Special Court, as well as, before the High Court in relation to the offences under the Act."

While pushing its point further, the Bench points out in para 26 that, "I am supported in my view by a decision of the High Court of Bombay in Dr. Hema Suresh Ahuja (supra). In the said decision, the Division Bench of Bombay High Court was requested to answer the following questions referred by the learned Single Judge, in view of the conflicting opinion of two co-ordinate benches:

"(1) Whether proceeding under 15A(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 would amount to a judicial proceeding as contemplated under section 2(i) of the Criminal Procedure Code, 1973?

(2) Whether it would be necessary to video record any proceeding relating to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, especially when the proceedings are held in open court, as contemplated under section 327 of the Criminal Procedure Code, 1973 and what would be the objective to be achieved?

(3) Whether hearing of a bail application under section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a judicial proceeding as contemplated under section 15A of the said Act?

(4) Whether section 15A (10) of the said Act could be implemented in the absence of rules framed under the Act or formulation of a scheme for implementation?""

While continuing in same vein, the Bench further lays bare in para 27 stating that, "In the light of objects and reasons of the Amending Act and the language employed in Section 15A(10) of the Act, the Division Bench of the High Court of Bombay observed as under:

"23. For deciphering the true purport of Chapter IV-A, the statement of Objects and Reasons of the Amending Act 1 of 2016 mentions that it was felt that the public accountability provisions under the Act need to be outlined in greater detail and strengthened. If the provisions in Section 15-A under Chapter IV-A are read in the light of the Objects and Reasons of the Amending Act, they clearly indicate that all these provisions are made to achieve that particular object besides achieving other objects of the Amending Act. The video recording of the proceedings relating to the offences under the Atrocities Act would certainly ensure public accountability in respect of those proceedings. This will ensure that victims and witnesses have adequate briefing on the case and preparation for trial. The information would be available to the organizations and individuals who are providing legal aid to the victim and their dependents. Under Section 15- A(12), it is the right of the victims of atrocity or their dependents to take assistance from the Non-Government Organizations, social workers or Advocates. In many cases, the victims may not be fully aware of the legal procedures or their implications and, thus, in that case the video recording would facilitate all those who can help the victim to understand the nature of proceedings and details of the facts and the legal aspects of those cases. Thus, sub-section (10) of Section 15-A of the Atrocities Act does not operate in isolation but it encompasses the other provisions and it facilitates their effective implementation.

24. Section 20 of the Atrocities Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of such law. The video recording of all the proceedings are specifically provided under this Act. This, being a special procedure, has to be followed irrespective of any other procedure provided under any other law.

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41. In these circumstances, we are also inclined to hold that Section 15-A(10) of the Atrocities Act is mandatory and not directory." (emphasis supplied)."

While buttressing its point further, the Bench then adds in para 28 that, "A similar view has been taken by the High Court of Kerala in Nowfal (supra). In the said case, during the proceedings of bail a request was made by the prosecution to video record the proceedings before the Special Court, which was rejected by the Special Court. However, on petition being preferred by the State, the High Court observed thus:

"8. The SC/ST Act has been enacted by the Parliament to effectuate a salutary public purpose of achieving the fulfilment of constitutional rights of the Scheduled Castes and Scheduled Tribes. S.15A which comes under Chapter IVA of the SC/ST Act titled "Rights of Victims and Witnesses", was introduced by way of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26th January, 2016. The statement of objects and reasons that accompanied the insertion of Chapter IVA reads as follows:

"(h) to insert a new Chapter IVA relating to "Rights of Victims and Witnesses" to impose certain duties and responsibilities upon the State for making necessary arrangements for protection of victims, their dependents and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence".

9. S.15A of the SC/ST Act contains important provisions that safeguards the rights of the victims of caste based atrocities and witnesses. It makes sure that the victims of atrocities are treated with fairness, respect and dignity. Sub-section (10) of S.15A specifically says that all proceedings relating to the offences under this Act shall be video recorded. It comes under the Chapter "Rights of the Victims and Witnesses". Thus, the term "all the proceedings" found in Sub-section (10) includes court proceedings as well. Sub-section (10) of S.15A of the SC/ST Act confers statutory right on the victim to get all the proceedings relating to the offences under the Act to be video recorded. The rejection of the request of the victim/prosecution to video-record the court proceedings would go against the legislative mandate which specifies the rights of the victim and witnesses." (emphasis supplied)."

Be it noted, the Bench notes in para 29 that, "Now adverting to the submission that the proceedings in relation to sexual assault under IPC and the POCSO Act ought not to be recorded to protect the identity of the victim it may be noted that Section 228A of IPC provides punishment for the act of disclosing the identity of the victim of certain offences like Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E. Likewise, Section 23 of the POCSO Act also emphasizes on safeguarding the identity of the child victim who has been sexually abused. Incidentally, Section 15A(10) while providing that all proceedings under the Act shall be video recorded makes no reference to the dissemination of such recording to anyone, which means that the recording is to be preserved for the usage of Court. If at all such recording is to be provided to the victim, his/her advocate or to the Non-Government Organisations, social workers for the purpose of their use in the proceedings under the Act, it need not be given unless specifically ordered by the Court."

For clarity, the Bench clarifies in para 30 stating that, "Thus, the identity and anonymity of the victim in terms of Section 228A of IPC and Section 23 of the POCSO Act can be safeguarded and ensured while video recording the bail proceedings under Section 15A(10)."

Truly speaking, the Bench clearly states in para 32 that, "Clearly, there is no inconsistency between the provisions of recording of the bail proceedings to protect the rights of the victims under Section 15A(10) of the Act on one hand and Section 228A of IPC and Section 23 of the POCSO Act on the other hand."

Most remarkably, the Bench expounds in para 33 holding that, "This view is fortified by a decision of the High Court of Kerala in Nowfal (supra) wherein it has been held that even in case of sexual assault of a victim under the Act, the anonymity of the victim can be adequately protected and safeguarded during the video recording under Section 15A (10) of the Act by employing strategies like giving dummy names to the victims, face masking or pixelation of face etc. Moreover, the video recording will be maintained exclusively for usage by the Courts. The relevant extract from the decision reads thus:

"10. One of the reasons shown by the Court below to reject the application is that since the offences alleged involve Section 376 of IPC as well, the trial has to be conducted in camera. The Court has also raised security concerns stating that there are no adequate facilities at the court for keeping such records and, thus, there is a possibility of leaking out the same."

11. Sub-section (2) of S.327 of Cr.P.C, which provides that trial of rape or an offence u/s 376 of IPC shall be conducted in camera, is intended to protect the anonymity of the victim. Subsection (10) of S.15A is also intended to protect the interest of the victim. As such, if a victim makes a request to video-record the court proceedings relating to the offences under SC/ST Act invoking Sub-section (10) of Section 15A, it cannot be turned down on the ground that the offences charged against the accused involve sexual offences fall under Section 327(2) of Cr.P.C. as well. The anonymity of the victim in such cases can be adequately protected and safeguarded in the recordings via dummy names, face masking or pixelation as and when directed by the Court. The recording shall be maintained for usage by the Court and the appellate Court and access to the recording need not be given to the victim or the accused unless specifically ordered by the Court." (emphasis supplied)."

Resultantly, the Bench then holds in para 34 that, "The upshot of the above discussion is that the provisions of Section 15A(10) of the Act are mandatory and the present bail proceedings will have to be video recorded."

What's more, the Bench clarifies in para 35 stating that, "It is, however, clarified that this judgment will not affect the cases in which proceedings in terms of Section 15A(10) of the Act have not been video recorded and it will take effect prospectively."

Finally, the Bench then concludes by holding in para 36 that, "List the bail application before the Roster Bench on 04.09.2024."

In conclusion, the Delhi High Court has made it absolutely clear in this leading judgment that video recording of bail proceedings under SC/ST Act mandatory even for sexual offences. It has been explained in detail as to why it is mandatory as discussed hereinabove. No denying! It thus merits no reiteration that this must always be most strictly followed as laid down in this notable judgment!