Judgment N.N. Mathur, J.-A sordid and obnoxious incident of rape on a foreign lady tourist in the intervening night of 11th and 12th May, 2005 reported in the regional Newspapers evoked the judicial conscience to take suo moto cognizance, considering that the Constitutional Courts vested with the powers under Article 226 of the Constitution of India, can no more be a silent spectator in the matter of violent crime against women and wait for its turn for dispensation of justice as provided under the relevant provisions of law. 2. In order to combat the increasing crime against women and to ensure protection and preservation of their human rights, the Criminal Justice System needs to be addressed from the point of view of systematic Victim Support Service. There is need to promote proactive role of police as well as the trial Courts. Thus, in order to expedite the investigation, to provide protection to the victim, ensuring production of material witnesses during trial without delay, expeditious conclusion of the trial and payment of compensation to the victim, after noticing the incident, by order dated 13.05.2005, we ordered as follows: "2. The rape is serious crime whether it is of a foreign tourist or any other woman. However, it leaves a question mark on the safety of the foreign tourist in the City of Jodhpur. It is likely to create panic amongst the tourists visiting Jodhpur and the other parts of the Country. 3. In the peculiar facts and circumstancesof the case, we consider it appropriate to take cognizance of the incident and direct as follows: (i) The Registry is directed to register a Suo Moto petition under the label of "Public Interest Litigation". (ii) TheState of Rajasthan through Secretary Department of Home, the Director, Tourism and Superintendent of Police (City) Jodhpur be impleaded as party respondents. (iii) A notice be issued to the said respondents returnable within a period of one week. 4. By ad interim order, further directions are given as follows:- (a) The Superintendent of Police, City Jodhpur is directed to ensure that the investigation of the case is concluded at the earliest. (b) All the agencies concerned with the investigation, including Director F.S.L. are directed to co-operate with the investigation. F.S.L. Report must reach on or before 16.05.2005. 4. By ad interim order, further directions are given as follows:- (a) The Superintendent of Police, City Jodhpur is directed to ensure that the investigation of the case is concluded at the earliest. (b) All the agencies concerned with the investigation, including Director F.S.L. are directed to co-operate with the investigation. F.S.L. Report must reach on or before 16.05.2005. (c) In event of filing of charge-sheet, the learned Sessions Judge is directed to ensure that the trial of the case is concluded expeditiously as far as possible within a period of one month from the date of filing of charge-sheet. (b) The Superintendent of Police, City Jodhpur is directed to ensure the safety of the victim. (e) The State of Rajasthan is directed to bear all the expenses of the victim for her overstay on account of the incident. She will be paid lodging and boarding expenses for visiting Jodhpur for investigation or trial in connection with aforesaid incident. (f) Thequestion with respect to the payment of compensation shall be decided after hearing Counsel for the State on the next date of hearing. (g) ThePrincipal Secretary, Department of Home, State of Rajasthan is directed to ensure the compliance of the order. (h) A copy of the order be sent to the Principal Secretary, Department of Home, State of Rajasthan today itself by fax. (i) A copy of the order be also served on the victim." Speedy & Fair Investigation And Trial: 3. Conducting a fair trial for those, who are accused of criminal offence, is the cardinal stone of democracy. Conducting the speedy and fair trial is beneficial both to the accused as well as to the Society, which includes the victim. The right to speedy trial of criminal offence has been recognized, implicit in the broad sweep and content of Article 21". In Kartar Singh vs. State of Punjab, reported in 1994 (3) SCC 569 , the Apex Court has observed: "The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. In Kartar Singh vs. State of Punjab, reported in 1994 (3) SCC 569 , the Apex Court has observed: "The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, inquiry, trial, appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates into a finality, can be averred". 4. The Mallimath Committee has also observed with respect to speedy investigation and trial in para 16.2 as follows: "16.2 The Committee, therefore, recommends that so far as offences of rape and other sexual offences against women are concerned, a suitable provision should be made requiring the investigation agency to complete the investigation within the prescribed time and for the Court to dispose of such cases on priority basis within a period of four months." 5. In the instant case, we record our appreciation for the Rajasthan Police for the prompt action. The accused persons were nabbed without delay and then the investigation was conducted under the supervision of the senior police officers in a scientific manner. The police completed the investigation and laid to the charge-sheet within the record time of 36 hours. The learned Magistrate taking cognizance of the offence, acted promptly and committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge (Fast Tract) proceeded with the trial expeditiously in accordance with the procedure provided under the Code of Criminal Procedure. The accused persons were represented by competent lawyers. The learned Judge while giving full opportunity to defend the accused persons, has taken care that the process is not abused to delay the trial. As per the report, while the police completed the investigation within 36 hours, the trial concluded within twenty days. The accused persons were represented by competent lawyers. The learned Judge while giving full opportunity to defend the accused persons, has taken care that the process is not abused to delay the trial. As per the report, while the police completed the investigation within 36 hours, the trial concluded within twenty days. To give more details, the incident is of intervening night of 11th and 12th May, 2005; the suo moto action was taken by this Court on 13.05.2005; the charge-sheet was filed on the same day; the charges were framed after hearing learned Counsel for the accused on 16.05.2005; the statement of the prosecutrix was recorded on 17.05.2005; the cross-examination by the defence Counsel continued upto 18.05.2005; the prosecution examined 21 witnesses and produced documents including memo of identification parade, the medical evidence and the F.S.L. Report. 6. As per the compliance report submitted today by the learned Sessions Judge, Jodhpur, the accused persons viz; Shankerlal and Rakesh have been convicted by the Judgment of the learned Additional Sessions Judge (Fast Track) for the offences under sections 376(2)(g), 365, 366 and 394, IPC. Both the accused persons have been sentenced to imprisonment for life for the offence under Section 376(2)(g) IPC. They have also been sentenced for the allied offences. Issues: 7. Though the trial is concluded, some of the important questions pertaining to such incident i.e. Right of victim of expeditious and scientific investigation, protection and confidence building process of a victim in rape case, victims right of speedy trial and payment of compensation, are left out. Before we proceed to deal with the relevant issues, it will be apposite to state the factual matrix of the incident. Factual Matrix: 8. Jodhpur, the heritage City of Rajasthan, otherwise considered a calm City with low crime rate, was shocked with the news of an auto rickshaw Driver and his accomplice allegedly raped German tourist. As per the information, the victim, a German lady aged 47 years arrived in the City of Jodhpur on Wednesday, i.e. 11.05.2005. She checked-in a Guest House in the walled city area. In the evening, she went to a hotel viz; Taj Hari for taking dinner. After taking dinner, she hired an auto-rickshaw from outside the said hotel for the Guest House. The driver drove the auto-rickshaw in the opposite direction on Jodhpur-Pali highway. She checked-in a Guest House in the walled city area. In the evening, she went to a hotel viz; Taj Hari for taking dinner. After taking dinner, she hired an auto-rickshaw from outside the said hotel for the Guest House. The driver drove the auto-rickshaw in the opposite direction on Jodhpur-Pali highway. The drive was accompanied by his associate sitting on the corner of the driving seat. It is alleged that they took her to a deserted place near dry bed of Jojari River. Both of them alleged to have robbed and committed rape on her. The screams of the victim attracted the nearby villagers of Meghvalon-ki-Dhani The villagers rescued the lady and informed the police. Police registered the case for offence under Section 376, IPC, and allied offences. The accused persons were nabbed promptly. Recoveries of incriminating articles were made. The test identification parade was arranged. Statement of the prosecutrix was recorded under Section 164, CrPC, on 13.05.2005, awaiting F.S.L. and D.N.A. Reports. Non-Disclosure Of The Name Of Victim: 9. We do not propose to mention the name of the victim in view of the prohibition provided in Section 228-A, IPC. Section 228-A, IPC, reads as follows:-"228-A. Disclosure of identity of the victim of certain offences, etc.-(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, Section 376-A, Section 376-B, Section 376-C or Section 376-D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be published with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. (2) Nothing in Sub-section (1) extends to any printing or publication of the name or any matter which may make know the identity of the victim if such printing or publication is:- .(a) by or under the order in writing of the officer in charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation: or .(b) by, or with the authorization in writing of , the victim: or .(c) where the victim is dead or minor or of unsound mind, by, or with the authorization in writing of , the next of kin of the victim: Provided that no such authorization shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognized welfare institution or organization. Explanation.-For the purposes of this sub-section, "recognized welfare institution or organization” means a social welfare institution or organization recognized in this behalf by the Central or State Government. (3) Whoever prints or publishes any matter in relation to any proceeding before a Court with respect to an offence referred to in Sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation.-The printing or publication of the Judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section. 10. Thus, Section 228-A, IPC, makes disclosure of identity of victim of offences punishable under Sections 376, 376-A, 376-B, 376-C and 376-D. The said provision has been enacted keeping in view the social object of preventing the social victimization or ostracism of the victim of sexual offence. Thus, we have chosen to describe the victim as “foreign tourist lady”. Provisions Pertaining To Offence Of Rape: 11. There is recognition of rights of women starting with United Nation Charter universal declaration of human rights to Convention on Elimination of all forms of Discriminations against Women. The Indian Constitution recognizes gender balance in its equality jurisprudence under Articles 14, 15, 16, 19 and 21. Thus, in India gender balance is recognized as basic structure of the Constitution. There is recognition of rights of women starting with United Nation Charter universal declaration of human rights to Convention on Elimination of all forms of Discriminations against Women. The Indian Constitution recognizes gender balance in its equality jurisprudence under Articles 14, 15, 16, 19 and 21. Thus, in India gender balance is recognized as basic structure of the Constitution. The Apex Court extending the ambit of Article 21 held that mere existence is not the right to live, it is a right to live with dignity. It gives the women right to health, right to profession, right to privacy, protection against sexual harassment, right to live with human dignity as part of her right to life. There are awareness movements, statutory bodies to protect the women like National Commission for Womens rights. 12. The crime of rape can be regarded as the highest torture inflicted upon virginity, youth, motherhood and womanhood itself . It causes not only physical torture to the body of the woman but also adversely affect her mental, psychological and emotional sensitivity. Therefore, rape is most hatred crime against the very basic human right and violative of the woman’s most fundamental right, namely the right to life. It is less a sexual offence than an act of aggression aimed at degrading and humiliating women. Such cases are required to be handled by the Courts with utmost sensitivity, high responsibility. 13. "Rape" as per the dictionary meaning is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. There are two essential ingredients of rape under Section 375, IPC. Firstly sexual intercourse by a man with a woman and secondly the sexual intercourse must be under circumstances falling under any of the six Clauses in the section. Firstly against her will; Secondly without her consent; Thirdly when her consent is obtained by putting fear of death in her; Fourthly when the consent given under the belief that another man is her lawfully married husband; Fifthly when consent given by the reason of unsoundness of mind or intoxication etc. and Sixthly with or without her consent, when she is under 16 years of age. Section 376, IPC, is the punishing provision for offence of rape. Sections 375 and 376, IPC, have been substantially amended by the Criminal Law (Amendment) Act, 1983. and Sixthly with or without her consent, when she is under 16 years of age. Section 376, IPC, is the punishing provision for offence of rape. Sections 375 and 376, IPC, have been substantially amended by the Criminal Law (Amendment) Act, 1983. By the said Act, new Sections viz; Sections 376-A, 376-B, 376-C and 376-D, IPC, have been introduced. Section 376-A punishes sexual intercourse with wife without her consent by a judicially separated husband. Section 376-B punishes sexual intercourse by a public servant with woman in his custody. Section 376-C, IPC, punishes sexual intercourse by Superintendent of Jail, Remand Home etc. with inmates in such institutions and Section 376-D punishes sexual intercourse by any member of the management or staff of a hospital with any woman in that hospital. These new Sections were introduced with a view to stop sexual abuses of women in custody, care and control by various categories of persons which though not amounting to rape were nevertheless considered highly reprehensible. The new amended Section 376, IPC, now prescribes a minimum punishment of seven years imprisonment for the offence of rape. For combating the vice of custodial rape, rape on pregnant woman, rape on girls under 12 and gang rape, a minimum punishment of 10 years imprisonment has been made obligatory. However, for special reasons to be recorded in the Judgment , the Court in either case can impose a sentence lesser than seven or ten years, as the case may be. A further improvement in the law relating to sexual offences can be found in the provisions of Section 228-A, IPC, Section 327(2), CrPC, and Section 114-A Evidence Act. Consent, by and large, has been viewed as a valid and strong defensive weapon. The defence lawyer in his endeavour to elicit a case of consent hackle and humiliate the woman in the cross-examination. Thus, an amendment has been brought in Section 114-A Evidence Act which provides for the presumption as to the absence of consent in cases of custodial rape, rape on pregnant woman and gang rape as in Clauses (a), (b), (c), (d), (e) and (g) of Sub-section (2) of Section 376, IPC. 14. It is now well settled by a series of decisions of the Apex Court that the antecedents of a victim is of no consequence in a case of rape. 14. It is now well settled by a series of decisions of the Apex Court that the antecedents of a victim is of no consequence in a case of rape. The trial Courts have been advised by the superior Courts repeatedly not to be a silent spectator, while the victim of the crime is being cross-examined by the defence. It must effectively control the recording of evidence in the Court. The Court must ensure that through cross-examination, the victim is not further harassed, humiliated or traumatized. 15. We may refer to a decision of the Apex Court in State of Andhra Pradesh vs. Gangula Satya Murthy, reported in J.T. 1996 (10) SC 550, the Apex Court held that: "......Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womans rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the Courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation". Camera Trial: 16. For upholding decency and dignity of the womanhood the Criminal Law (Amendment) Act, 1983 had added Sub-sections (2) & (3) in Section 327 of the Code of Criminal Procedure providing camera trial for such cases. Sub-section (2) casts a duty on the Court to conduct the trial of the case of rape etc. invariably in camera. The trial in camera would not only be in keeping with self -respect of the victim but also improve the quality of evidence of the victim. She will not be in an atmosphere of embarrassment, hesitation and shame. Suo Moto 17. The Constitutional adjudication particularly under writ jurisdiction is a subject which has assumed critical importance in Human Rights protection and governance under the rule of law in recent times. She will not be in an atmosphere of embarrassment, hesitation and shame. Suo Moto 17. The Constitutional adjudication particularly under writ jurisdiction is a subject which has assumed critical importance in Human Rights protection and governance under the rule of law in recent times. It is settled position of law that the jurisdiction enjoyed by this Court under Article 226 of the Constitution is very wide, as this Court while considering the petition for enforcement of any of the fundamental rights guaranteed under part III of the Constitution or the statutory right or any other rights can not only be declared to be an act ultravires or beyond the competence of the legislature but has also power to award compensation for violation of the fundamental rights. For the exercise of its jurisdiction, it is not necessary that a person who is victim of violation of the fundamental rights, should personally approach to this Court. As observed by the Apex Court in Shri Bodhisattwa Gautam vs. Miss Subhra Chakraborty, reported in AIR 1996 SC 922 , the Court can itself take cognizance of the matter and proceed suo moto or on a petition by any public spirited individual. 18. As observed in our interim order dated 13.05.2005 taking suo moto cognizance, we have indicated the significance of the incident distinguishing form the ordinary rape case. The incident leaves a question mark on the safety of foreign tourists in our Country which is likely to have larger implications affecting the reputation of the Country adversely, particularly the safety of foreign lady tourists visiting our Country. In a case of this character, such a trial cannot be frustrated by prolongation of investigation. Victimology: 19. One of the principle objects of the Criminal Justice System is to vindicate the Right to justice of unfortunate victim. Novel concept of victimology is a step towards fulfilling the avowed promises made by our Constitution makers. Thus, the Judicial Administration Mechanism should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. International Human Rights law requires the States to adopt effective measures for the prevention, investigation, prosecution and punishment of sexual violence to ensure its citizens the highest attainable standard of health and to provide reparations to victims of serious human rights violations. 20. International Human Rights law requires the States to adopt effective measures for the prevention, investigation, prosecution and punishment of sexual violence to ensure its citizens the highest attainable standard of health and to provide reparations to victims of serious human rights violations. 20. The Mallimath Committee having felt that the system must focus on justice to victims, made recommendations, which includes the right of victim to participate in cases involving serious crimes and to adequate compensation. The Mallimath Committee in its report has observed that the Criminal Justice System needs to be addressed on an urgent basis. For example, victims of rape and domestic violence etc. require trauma counselling, psychiatric and rehabilitative services apart from Legal Aid. It is further observed that victims often fall prey to intimidation and harassment by offenders which tend to dissuade them from testifying freely and truthfully. Other factors including the poor financial condition may crop up to make the witness disinterested to state the truth in the Court. The Committee has referred to the victims rights internationally and in Criminal Justice System, in para 9.1, which reads as follows:- "9.1 Victims of crime are important players in criminal justice administration both as complainant/informant and as witness for the police/prosecution. Despite the system being heavily dependent on the victim, criminal justice has been concerned with the offender and his interests almost subordinating or disregarding the interests of victim. In the civil law systems generally, the victims enjoyed a better status in administration of criminal justice. Towards the last quarter of the twentieth century, the common law world realized the adverse consequences arising from this inequitable situation and enacted laws giving rights of participation and compensation to the victims. "Victims" mean the persons or persons who have suffered financial, social, psychological or physical harm as a result of an offense, and includes, in the case of any homicide, an appropriate member of the immediate family of any such person. In the Constitutions of certain countries, rights of victims have been recognized thereby forcing changes in criminal justice goals and procedures. In the United States the Supreme Court ruled that consideration of Victim Impact Statements during sentence hearing was Constitutionally permissible (Payne vs. Tennessee, 1991 (III) SCT 2597. This enabled victims to describe the extent of any physical, emotional, or psychological effects caused by the crime. In the United States the Supreme Court ruled that consideration of Victim Impact Statements during sentence hearing was Constitutionally permissible (Payne vs. Tennessee, 1991 (III) SCT 2597. This enabled victims to describe the extent of any physical, emotional, or psychological effects caused by the crime. Eventually in U.S., Victim Impact Statements became part of plea bargains and parole hearings." 21. Thus, the machinery of Criminal Justice System is also required to put into gear when an offence is registered of sexual violence and then investigate