Report No. 198

4.5 172 nd Report of the Law Commission (2000): Reference by Supreme Court to the Law Commission: screen technique:

In March 2000, the Law Commission submitted its 172 nd Report on 'Review of Rape Laws'. The Law Commission took the subject on a request made by the Supreme Court of India (vide its order dated 9 th August, 2521999, passed in Criminal Writ Petition (No. 33 of 1997), Sakshi v. Union of India.

The petitioner 'Sakshi', an organization, interested in the issues concerning women, filed this petition, seeking directions for amendment of the definition of the expression 'sexual intercourse', as contained in section 375 of the IPC. The Supreme Court requested the Law Commission 'to examine the issues submitted by the petitioners and examine the feasibility of making recommendations for amendments of the Indian Penal Code or to deal with the same in any other manner so as to plug the loopholes'.

The Law Commission discussed the issues raised by the petitioner with Petitioner NGO and other women organizations. The Commission also requested 'Sakshi' and other organizations to submit their written suggestions for amendment of procedural laws as well as the substantial law.

Accordingly, these women organizations submitted their suggestions for amendment of Cr.P.C. and the Evidence Act and also I.P.C. One of the views put forward by the organizations was that a minor complainant of sexual assault shall not have to give his/her oral evidence in the presence of the accused, as this will traumatic to the minor. It was suggested that appropriate changes in the law should be made for giving effect to this provision.

It was further suggested that a minor's testimony in a case of child sexual abuse should be recorded at the earliest possible opportunity in the presence of a judge and the child-support person, which may include a family friend, relative or social worker whom the minor trusts. For the purpose of proper implementation of the above suggestion, it was urged that the court should take steps to ensure that at least one of the following methods is adopted:

(i) permitting use of a video-taped interview of the child's statement by the judge in the presence of a child support person;

(ii) allowing a child to testify via closed circuit television or from behind a screen to obtain a full and candid account of the acts complained of;

(iii) the cross examination of the minor should only be carried out by the judge based on written questions submitted by the defence upon perusal of the testimony of the minor;

(iv) whenever a child is required to give testimony, sufficient breaks shall be given as and when required by the child.

The Commission considered the above suggestions along with other issues raised and the order of the Supreme Court and gave its 172nd Report on 25th March, 2000. In respect of the suggestion that a minor who has been assaulted sexually, should not be required to give his/her evidence in the presence of the accused and he or she may be allowed to testify behind the screen, the Law Commission referred to section 273 of the Cr.P.C., which requires that 'except as otherwise expressly provided, all evidence taken in the course of a trial or other proceeding, shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader'.

The Law Commission took the view that his general principle, which is founded upon natural justice, should not be done away with altogether in trials and enquiries concerning sexual offence. However, in order to protect the child witness the Commission recommended that it may be open to the prosecution to request the Court to provide a screen in such a manner that the victim does not see the accused, while at the same time providing an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his advocate for an effective cross-examination. Accordingly, the Law Commission in para 6.1 of its 172 nd Report recommended for insertion of a proviso to section 273 of the Cr.P.C. 1973 to the following effect:

"Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused".

In respect of other suggestions mentioned above, made by Sakshi organization, the Law Commission expressed its view that these suggestions were impracticable and could not be accepted.

178 th Report of the Law Commission (2001): preventing witnesses turning hostile:

In December, 2001, the Commission gave its 178 th Report for amending various statutes, civil and criminal. That Report dealt with hostile witnesses and the precautions the Police should take at the stage of investigation to prevent prevarication by witnesses when they are examined later at the trial. The Commission recommended three alternatives, (in modification of the two alternatives suggested in the 154th Report). They are as follows:

"1. The insertion of sub-section (1A) in Section 164 of the Code of Criminal Procedure (as suggested in the 154th Report) so that the statements of material witnesses are recorded in the presence of Magistrates. [This would require the recruitment of a large number of Magistrates].

2. Introducing certain checks so that witnesses do not turn hostile, such as taking the signature of a witness on his police statement and sending it to an appropriate Magistrate and a senior police officer.

3. In all serious offences, punishable with ten or more years of imprisonment, the statement of important witnesses should be recorded, at the earliest, by a Magistrate under Section 164 of the Code of Criminal Procedure, 1973. For less serious offences, the second alternative (with some modifications) was found viable."

4.6 However, it is to be noted that the Law Commission, in the above Report, did not suggest any measures for the physical protection of witnesses from the 'wrath of the accused' nor deal with the question whether the identity of witnesses can be kept secret and if so, in what manner the Court could keep the identity secret and yet comply with the requirements of enabling the accused or his counsel to effectively cross examine the witness so that the fairness of the judicial procedure is not sacrificed.

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