Legal Provisions of Section 228A of Indian Penal Code, 1860.
Disclosure of identity of the victim of certain offences, etc:
This section was added in the Indian Penal Code by the Criminal Law (Amendment) Act, 1983 (Act 43 of 1983) mainly with a view to prevent social victimisation or ostracism of a victim of sexual offence. The abovementioned Act has simultaneously brought about drastic changes in the law relating to rape in sections 375 and 376 of the Indian Penal Code, and at the same time enacting four new sections 376-A, 376-B, 376-C and 376-D dealing with other kinds of sexual offences not amounting to rape. Section 228-A makes disclosure of identity of the victim of certain offences etc. a punishable offence.
The first sub-section of this section says that whoever either print or publishes the name of the victim or any matter from which the identity of a victim of any of the offences under sections 376, 376-A, 376-B, 376-C and 376-D may be known, shall be punished with simple or rigorous imprisonment for a term extending up to two years and shall also be liable to fine.
The second sub-section states that the first sub-section does not apply to any printing or publication of the name of the victim or any matter from which the identity of the victim of the abovementioned offences may be known, if such printing or publication is by or under the written orders of the officer-in-charge of the police station or the police making the investigation while acting in good faith for the purpose of such investigation, or by or with the written authority of the victim, or if the victim is either dead or minor or of unsound mind then by or with the written authorisation of next-of-kin of the victim, provided the next-of-kin shall not give any such authorisation to anyone except the chairman or secretary of any recognised welfare institution or organisation.
According to the third sub-section which prescribes the punishment under this section, whoever prints or publishes any matter relating to any court proceeding with respect to what has been stated in the first sub-section without obtaining prior permission of the concerned court shall be punished with simple or rigorous imprisonment for a term extending up to two years and shall also be liable to fine. As per the explanation attached to this section the printing or publication of judgment of any High Court or the Supreme Court does not amount to an offence under this section.
The special conditions in India have forced the law makers to enact this law against printing or publication of the identity of a victim of rape or other sexual offences as made punishable under sections 376, 376-A, 376-B, 376-C and 376-D. This law ensures to some extent that the victim who already undergoes the trauma of the physical and mental torture, is not put to further uncomfortable situations.
In R. Lakshmipathi v. S. Ramalingam, a complaint was filed against the petitioner accused for alleged disclosure of identity of a victim of a rape case in their newspaper. The Madras High Court held that one of the documents, namely, the reply notice filed along with the complaint would clearly show that publication was made only with the written request on authorisation by a welfare institution by which the accused are exempted from prosecution under section 228-A of the Code. On locus standi the Court further observed that section 228-A does not provide for eligibility of a person who could file a complaint and hence a private complaint filed by the complainant, a dismissed employee of petitioners running the newspaper is valid.
In Bhupinder Sharma v. State of Himachal Pradesh, and State of Karnataka v. Puttaraja the Supreme Court has observed that disclosure of a rape victim is a punishable offence and so indicating the victims name in judgments by the courts is inappropriate. The object behind this law is preventing social victimisation or ostracism of the victim. In the Puttaraja case the Supreme Court held that adequate and special reasons were not given by the High Court for reducing the trial court’s sentence of five years in the rape conviction to twenty-two days. The original sentence was thus ordered to be restored as the State had also not contested the same before the High Court.
In Dinesh v. State of Rajasthan? an eight year old girl was raped. The Supreme Court held that restrictions in section 228-A though does not relate to printing or publication of judgment by the High Court or Supreme Court but keeping in view the social object of preventing social victimisation or ostracism of a victim of sexual offence, the name of victim should not be indicated in judgments of Supreme Court, High Court or lower Courts.
In State of Orissa v. Sukru Gouda, the Supreme Court held that non-observance by court of restriction of disclosure of name of the victim in certain offences against women is indicative of judicial indiscipline.
The offence under section 228-A is cognizable, bailable and non-compoundable, and is triable by any magistrate.