The Kerala High Court observed that Section 228A of the Indian Penal Code, which pertains to the disclosure of a sexual assault victim's identity, does not apply to situations where a Judge inadvertently discloses the victim's name during court proceedings or in orders.

The Court said that every Judge ensure that anonymity of victims of sexual offences must be maintained.

The Single Judge Bench of Justice Devan Ramachandran was dealing with a Writ Petition filed by a victim of a sexual offence, allegedly committed on her by a Police Officer, seeking necessary action against the Magistrate who passed the order revealing her identity.

Background: The Victim had approached the Magistrate seeking the cancellation of bail of the accused Police Officer for committing further offences in spite of the conditions imposed in the bail order. The Magistrate dismissed the applications. However, due to an omission during the judgment delivery, failed to anonymize the petitioner's name and identity in the order related to her application.

Aggrieved, the petitioner approached the High Court seeking action against the Magistrate and further direction to suppress her identity from the Court's order.

Considering the merits of the matter, the High Court opined that there can be little doubt that the publication of the name and identity of the petitioner must have caused her great agony; and there can be no justification for this, in any manner whatsoever. The High Court also noted that the Standing Counsel for the High Court of Kerala, admitted unequivocally that the order in question requires to be anonymised immediately, for which, this Court can issue appropriate orders to the Magistrate.

However, on the aspect of proceedings against the Magistrate under Section 228 A of the IPC, the High Court noted the submissions of the standing counsel that this goes contrary to the well-enshrined protection to a Judicial Officer under the Judges (Protection) Act, 1985.

The High Court was further apprised that while the imperative requirement of keeping the identity of a victim of sexual offence secret, is inviolable from the declarations of the Supreme Court in State of Punjab v. Ramdev Singh [AIR 2004 SC 219], the inadvertent omission committed by the 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.

On the other hand, the 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. Counsel also added 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.

Considering the submissions, the High Court in its judgement stated, "However, the acme question is whether this omission would subject the learned Magistrate to any criminal action under Section 228 A of the IPC. I have no doubt that answer to this is to the negative because, Section 228 A of the IPC begins by saying that, whoever prints or publishes the name or any matter which may make known the identity of a person against whom an offence under Section 376, among others, of the IPC is alleged, or found to have committed, shall be punished with imprisonment of either description for a term which may extend to two years and also with fine."

Further observing that by no stretch of the imagination, Section 228 A could apply in the case of a Court, the Court stated, "The forensic position, therefore, is absolutely limpid. The offence under Section 228 A of the IPC would get attracted to a person who prints or publishes any matter, so as to reveal the identity of the victim of an offence inter alia under Section 376 of the IPC, but it certainly not cover a case where a Court inadvertently reveals such name in Court proceedings or orders."

The Court also observed that "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’."

Concluding the Court suggested, "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."

Cause Title: XXXXXXXXXX v. State of Kerala & Ors. [WP(C) NO. 40709 OF 2023]

Click here to read/download the Judgement