Kerala High Court

Salil Raveendran vs Union Of India on 21 December, 2023

Author: Kauser Edappagath

Bench: Kauser Edappagath

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
 THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA,
                            1945
                  WP(CRL.) NO. 318 OF 2022
   CRIME NO.304/2021 OF MARADU POLICE STATION, Ernakulam


PETITIONER:

         SALEEL RAVEENDRAN
         AGED 45 YEARS, S/O M.R.RAVEENDRAN,
         NO.40, CHAITHANYA LA GROOVE, BEHIND RYAN SCHOOL,
         BROOKS FIELD, KUNDALAHALLI, BANGALORE, PIN -
         560037
         BY ADVS.
         GEO PAUL
         C.R.PRAMOD
         RADHIKA RAJASEKHARAN P.
         JACOB GEORGE PALLATH
         NAVEEN T.U.
         D.PREM KAMATH



RESPONDENTS:

    1    UNION OF INDIA, MINISTRY OF LAW AND JUSTICE, 4TH
         FLOOR, A-WING, SHASTRI BHAWAN, NEW DELHI 110001
         REPRESENTED BY ITS UNDER SECRETARY
    2    STATE OF KERALA
         REPRESENTED BY THE CHIEF SECRETARY, SECRETARIATE,
         THIRUVANANTHAPURAM 695001
    3    THE NEW INDIAN EXPRESS
         EXPRESS NETWORK PRIVATE LIMITED, EXPRESS GARDENS,
         NO.29, 2ND MAIN ROAD, AMBATTUR INDUSTRIAL ESTATE,
         CHENNAI, PIN - 600058 REP. BY ITS GROUP EDITOR
         SRI.G.S.VASU
 WP(Crl) No.318/2022

                            -:2:-

    4      INDIAN KANOON
           724, FIRST FLOOR, 9TH CROSS, 10TH MAIN ROAD,
           INDIRA NAGAR, BANGALORE, PIN - 560038, KARNATAKA
           REPRESENTED BY ITS PROPRIETOR MR.SUSHANT SINHA
           BY ADVS.
           SRI.SUVIN R.MENON, CGC
           SRI.C.N.PRABHAARAN, PP
           SRI.V.KRISHNA MENON FOR R3
           SRI.J.SURYA

     THIS WRIT PETITION (CRIMINAL) HAVING COME UP         FOR
ADMISSION ON 21.12.2023, THE COURT ON THE SAME            DAY
DELIVERED THE FOLLOWING:
 WP(Crl) No.318/2022

                                -:3:-

                                                               "C.R."

                          JUDGMENT

The petitioner is aggrieved by the publication of Exts. P2

and 4 by respondent Nos. 3 and 4, which, according to him,

contain materials that violate his right to reputation, dignity, and

privacy under Article 21 and the right to equality under Article 14

of the Constitution of India.

2. The petitioner is a chartered accountant by profession.

He claims that he has more than twenty years of experience in

the field and adorned various coveted positions, including that of

CFO and CEO in different reputed companies in India and abroad,

and that he was conferred with many awards and recognitions

both in the US and India for his contributions in his field.

3. In 2021, Maradu Police Station, Ernakulam, registered

a crime against the petitioner as Crime No.304/2021, alleging

offences punishable under Sections 376(2)(l) and (n) of the Indian

Penal Code (for short 'IPC'). The allegation is that the petitioner

committed sexual assault and rape on the victim, who was his old

classmate, after giving her a false promise of marriage. The

petitioner denied those allegations. According to him, a false case

has been foisted against him.

4. The petitioner was arrested on 12/10/2021 and

remanded to judicial custody. He moved an application for regular

bail at the Sessions Court, Ernakulam. The learned Additional

Sessions Judge II dismissed the bail application on 29/10/2021 as

per Ext. P3 order. Thereafter, an application for bail was moved

before this court, which was allowed on 19/11/2021 as per Ext. P1

order. The petitioner was released from custody on the same

day.

5. During the investigation, respondent No.3 (The New

Indian Express) published an online write-up about the case of

the petitioner titled "Man in Jail for 'rape' after Friends' Reunion".

Its printout is marked as Ext. P2. The write-up, which identifies

the petitioner by his name, provides the details of the alleged act,

including the version of the police, victim, and defence, and the

fact that the Sessions Court dismissed the bail application with its

reasons.

6. The respondent No.4 (India Kanoon) republished Ext. P1

bail order on their website and was indexed on search engines. A

printout of the same is marked as Ext. P4.

7. It is alleged that Ext. P2 is a prejudicial publication

containing sensitising, distorted and misleading facts which

implicitly pronounce that the petitioner is guilty of rape, with a

view to grab the attention of the people and Ext. P4 publication

which exhibits his name, father's name and address is highly

prejudicial to him especially since the case is in its preliminary

investigation stage. It is further alleged that those publications

violate the principles of presumption of innocence inasmuch as

they tantamount to the pre-trial pronouncement of guilt of the

petitioner that makes him and his family identifiable and thereby

vulnerable. It is also alleged that apart from hampering the right

to fair trial, Exts.P2 and P4 have also impacted his dignity,

reputation, and privacy. According to the petitioner, as a direct

result of the publishing of Exts. P2 and P4 online, he was

terminated from his employment and is now jobless, and his wife,

two minor daughters and aged parents are severely affected in

various manners due to the publications. It is in this circumstance

that the petitioner has approached this court invoking Article 226

of the Constitution of India seeking the following reliefs:

"i) Declare that printing or publishing in print, electronic, social media, etc., the name of the petitioner/accused or even in a remote manner disclose any facts which can lead to the petitioner/accused being identified and which should make petitioner/accused's identity known to the public at large, during investigation, pre-charge and pre-trial, as in Exts. P2 and P4 is violative of the fundamental rights guaranteed to the petitioner/accused under Arts.14, and 21 of the Constitution of India.

ii) Declare that printing or publishing in print, electronic, social media, etc., the name of any person accused of rape or an offence under Sections 376, 376A, 376B, 376C, 376D or 376E of I.P.C., or even in a remote manner disclose any facts which can lead to the accused being identified and which should make accused's identity known to the public at large, during investigation, pre-charge and pre-trial, is violative of the fundamental rights guaranteed to the petitioner/accused under Arts.14, and 21 of the Constitution of India.

iii) Declare that no person can print or publish in print, electronic, social media, etc., the name of the person accused of rape or of an offence under Sections 376, 376A, 376B, 376C, 376D or 376E of I.P.C., or even in a remote

manner disclose any facts which can lead to the accused being identified and which should make accused's identity known to the public at large.

iv) Declare that in FIRs relating to offences under Sections 376, 376A, 376B, 376C, 376D or 376E of I.P.C., the name of the accused or even in a remote manner disclose any fats which can lead to the accused being identified and which should make accused's identity known to the public at large shall not be put in the public domain;

v) Declare that the police officials should keep all the documents in which the name of the person accused of rape or of an offence under Sections 376, 376A, 376B, 376C, 376D or 376E of I.P.C., is disclosed, as far as possible, in a sealed cover and replace these documents by identical documents in which the name of the accused is removed in all records which may be scrutinized in the public domain;

vi) Declare that all the authorities to which the name of the person accused of rape or of an offence under Sections 376, 376A, 376B, 376C, 376D or 376E of I.P.C., is disclosed by the investigating agency of the court, are also duty bound to keep the name and identity of the accused secret and not disclose it in any manner except in the report which should only be sent in a sealed cover to the investigating agency of the court.

vii) Declare, it would be appropriate that the judgment of every court relating to offences under Sections 376, 376A, 376B, 376C, 376D or 376E of I.P.C., should not disclose the name of the accused.

viii) Issue a writ of mandamus or any other writ or order or direction, directing the respondents 1 and 2 to frame appropriate guidelines, orders or notifications to protect the dignity, reputation and privacy of the petitioner till the end of the trial and proven guilty, within a time frame fixed by this Hon'ble Court;

ix) Issue a writ of mandamus or any other writ, order or direction, by framing appropriate guidelines to protect the dignity, reputation and privacy of the petitioner till the end of the trial and proven guilty;

x) Issue a writ of mandamus or any other writ, or order or direction, directing respondents 3 and 4 to take down/remove Exts.P2 and P4 with urls -

https://www.newindianexpress.com/cities/kochi/2021/nov/12/man-in-jail-for- rape-after-friends-reunion-2382445.html and https://indiankanoon.org/doc/79819152/ forthwith from the worldwide web;

xi) Issue a writ of mandamus or any other appropriate writ or order or direction, directing respondents 3 and 4 to anonymize all such details of petitioner like his name, address, mention of family members and all such details prejudicial to petitioner from Exts.P2 and P4;

xii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing to address the petitioner/under trial as 'Alleged accused' instead of 'Accused';

xiii) To restrict the discussion, reports, articles, observations published on electronic/online media in a distorted or in any manner prejudicial to petitioner till the

completion of trial and proven guilty;"

8. I have heard Sri.D.Prem Kamath, the learned counsel

for the petitioner, Sri.Suvin R.Menon, the learned Central

Government Counsel, Sri.Prabhakaran, the learned Public

Prosecutor and Sri.V.Krishna Menon, the learned counsel for the

respondent No.3. There is no appearance for the respondent No.4

9. The learned counsel for the petitioner, Sri. D.Prem

Kamath, submitted that the pre-trial pronouncement of guilt

through the publishing of Ext. P2 and the personal details of the

petitioner by Ext. P4 had undoubtedly violated the fundamental

rights guaranteed to the petitioner under Articles 14 and 21 of

the Constitution of India. The learned counsel further submitted

that when Article 14 guarantees equality before the law and

equal protection of the law, a person accused of an offence, until

proven guilty, is innocent and therefore enjoys the same rights as

any other person and when he is treated unequally, it amounts to

violation of the right to a fair trial. The right to privacy, reputation

and dignity of a citizen that are integral parts of Article 21 of the

Constitution of India are available to convicts, under trials,

detenues and other prisoners in custody and cannot be allowed

to be infringed in the name of the right to freedom of speech and

expression. The counsel also submitted that the

protection/restriction, which currently preserves the anonymity of

victims of sexual offences, should be extended to persons

accused of those offences, especially in the case of rape. Relying

on sub-sections (2) and (3) of Section 327 of the Code of Criminal

Procedure (for short 'Cr. P.C'), it was submitted that no person

should be allowed to print or publish any matter in relation to

proceedings involving the offence of rape, except with the

previous permission of the court, that too maintaining the

confidentiality of the name and address of the parties. The

counsel prays to issue directions/guidelines to enforce the

fundamental rights guaranteed to the petitioner under Articles 14

and 21 that have been allegedly infringed by Exts. P2 and P4

published by respondent Nos. 3 and 4. A draft guideline has been

produced for reference. He also filed argument notes reiterating

the points mentioned during the hearing and placing reliance on

the following decisions: Bloomberg L.P v. ZXC [(2022) UKSC 5],

Nilesh Navalakha v. Union of India [2021 SCC OnLine Bom.56],

Nipun Saxena and Another v. Union of India and Others [(2019) 2

SCC 703], Swapnil Tripathi v. Supreme Court of India [(2018) 10

SCC 639], K.S.Puttaswamy and Another v. Union of India and

Others [(2017) 10 SCC 1], Sahara India Real Estate Corporation

Limited and Others v. Securities and Exchange Board of India and

Another [(2012) 10 SCC 603], Manu Sharma v. State (NCT) of

Delhi [(2010) 6 SCC 1], R.Rajagopal v. State of Tamil Nadu

[(1994) 6 SCC 632], Port of Bombay v. Dilipkumar

Raghavendranath Nadkarni and Others [(1983) 1 SCC 124]

and Francis Coralie Mullin v. Administratior, Union Territory of Delhi

and Others [(1981) 1 SCC 608].

10. The learned counsel for the respondent No.3, Sri. V.

Krishna Menon submitted that the press has every right to

publish court proceedings, and Ext. P2 news item contains only

verbatim reproduction of Ext. P3 bail order without any additions

or exaggerations. The learned counsel further submitted that

Article 19(1)(a) of the Constitution of India ensures freedom of

speech and expression, which includes freedom of the press, and

any restriction imposed on such freedom would be

unconstitutional unless it can be justified under clause (2)

thereof. Any attempt to suppress information from the notice of

the public by seeking a direction to prevent publication will

adversely affect the transparency and faith of the public at large

in the judiciary. It is next submitted that the petition has been

filed to curtail the freedom of the press enshrined under Article

19(1)(a) of the Constitution and seek a gag order against media

from making any publications, which is impermissible in law.

11. The learned Central Government Counsel Sri. Suvin R.

Menon submitted that the right to privacy is not absolute; it must

bow down to compelling public interest, and if society collectively

prosecutes an accused, each member of the society has a right to

know his name and details as well as the allegations against him.

The learned CGC further submitted that there are sufficient

regulations in place to control and regulate media, both electronic

and print, and any further restriction would amount to curtailing

the freedom of the press. Specific reference was made to

Information Technology (Intermediary Guidelines and Digital

Media Ethics Code) Rules, 2021, which seeks to regulate social

media intermediaries as well as digital media, including OTT and

digital news platforms. It was contended that in the light of the

decision of the Apex Court in Sahara India (supra), no guidelines

could be framed, and if this Court were to lay down the

guidelines, it would amount to legislating, which is against the

very concept of separation of powers.

12. The learned Public Prosecutor Sri. Prabhakaran

submitted that isolated instances of incorrect reporting do not

justify the promulgation of guidelines, and the framing of

guidelines is beyond the power and jurisdiction of this Court. It is

submitted that a robust self-regulatory mechanism exists, apart

from a statutory framework which, inter alia, would be sufficient

to balance the freedom under Article 19(1)(a).

13. I will deal with the challenge against Exts. P2 and P4

separately taking into consideration the rival submissions made

by the learned counsel appearing on either side.

On Ext.P2

14. The petitioner's case is that narrative in Ext. P2 is

prejudicial to him as it negatively impacts his image in the minds

of the reader by projecting him conclusively as a rapist, at a

stage when investigation was going on and the charge had not

been filed and thus threatens his right to a fair trial and violates

the fundamental rights guaranteed under Articles 14 and 21 of

the Constitution.

15. Media reporting on matters involving the commission

of crimes involves several issues, such as the right of the media

to disseminate news, views and information, the right of the

citizens to know, the right to privacy, dignity and reputation of

the accused and the victim and the right to fair trial.

16. For a country like ours, which is a parliamentary

democracy, freedom of speech and expression is an essential

right. The freedom of speech and expression, as envisaged under

Article 19(1)(a) of the Constitution, means the right to free

speech and to express opinions through various media. The right

includes the freedom of the press. The freedom of the press is the

fundamental tenet of the constitutional democracy in India. In

Romesh Thappar v. State of Madras (AIR 1950 SC 124), while

highlighting that freedom of speech is the foundation of all

democratic organisations, the Apex Court held that said freedom

would also include freedom of the press. Freedom of the press

takes within its fold a number of rights; one such right is the

freedom of publication. However, the expansive and sweeping

ambit of such freedom notwithstanding, the right to freedom of

speech and expression, like all other rights in the Constitution, is

also not absolute; it is subject to the imposition of reasonable

restrictions.

17. Reporting of the court proceedings increases

transparency and faith of the public in the judiciary. The role of

the media is that of a watchdog to disseminate truth to the

knowledge of the public. A free and healthy press is indispensable

to the functioning of a true democracy. Public has a right to know

what is happening in courts. The right to know is a basic right

which the citizen of a free country aspires. The concept of open

justice permits fair and accurate reports of court proceedings to

be published. As adjudication is not a private activity, the open

court is the norm for legal proceedings. Indian law recognises

open court justice. The language of S.327 of Cr.P.C indicates that

the place where the Criminal Court is held for inquiry and trial of

any offence shall be deemed an open court. Sub-section (2) of

S.327 only creates an exception to the general rule and states

that cases relating to sexual offences, i.e. Sections 376, 376A,

376B, 376C, 376D or 376E of IPC shall be conducted in camera.

It is one of the salutary principles of the administration of justice

that justice must not only be done but must also be seen to be

done, and an 'open trial' reaffirms the said principle. If those who

are present in the open court can hear it, the entire world is

entitled to hear it through media. Recently, a Division Bench of

this Court in Vysakh v. Union of India (2023(1) KLT 83) overruled

the right to claim privacy in the public sphere in an open court

system.

18. Though the press and media have every right to

publish news and views, they cannot have unlimited and

unfettered freedom to publish details of criminal cases pending

their investigation and trial. There is a severe risk of prejudice if

the media exercises such unrestricted and unregulated freedom.

In the grab of the right to free speech and expression, the press

and media cannot be permitted to publish reports in a manner

hampering investigation and trial or prejudicing the right of

defence of the accused in any manner or outrightly holding the

suspect or the accused guilty even before the conclusion of the

trial. The report should be truthful, fair, and objective. It should

not be inaccurate or misleading, prejudicing the very concept of

fair trial.

19. It is trite law that the right to dignity and reputation

are facets of the right to life of a citizen under Article 21 of the

Constitution [Port of Bombay (supra)]. The right to privacy,

pursuant to declaring it to be a fundamental right by the Apex

Court in Puttaswamy(supra), has also been woven into the fabric

of Article 21. It is settled that a person's privacy, reputation and

dignity cannot be infringed except by a restriction imposed by or

under the authority of law, and such restriction should be

reasonable, having nexus with the object sought to be achieved.

It is also settled that the precious right guaranteed by Article 21

cannot be denied to accused, convicts, under trials, detenues and

other prisoners in custody, except according to the procedure

established by law by placing such reasonable restrictions as are

permitted by law. [Francis Coralie Mullin (supra)]

20. As stated already, the main challenge to Ext. P2 is on

the ground that it impinges on the petitioner's constitutionally

guaranteed rights to dignity, reputation, and privacy. It is the

case of the petitioner that the right to freedom of speech and

expression available to the press and media under Article 19(1)

(a) cannot trample on the right to reputation available to the

citizen under Article 21. The learned counsel for the petitioner

submits that in a conflict between freedom of speech and

expression and the right to privacy, the latter must prevail. What

would be the position if these two rights were in conflict?

21. The Apex Court has always struck a balance whenever

it was found that the exercise of fundamental rights by one

caused inroads into the space available for the exercise of

fundamental rights by another. The competing claims arose in

many of those cases, in the context of Article 19(1) (a) right of

one person qua Article 21 right of another.

22. In People's Union for Civil Liberties (PUCL) v. Union of

India [(2003) 4 SCC 399], the right to privacy of the spouse of the

candidate contesting the election was declared as subordinate to

the citizen's right to know under Article 19(1)(a). In Sahara India

(supra), a balance was struck between the right of the media

under Article 19(1)(a) and the right to fair trial under Article 21.

The right to fair trial of the accused was balanced with the right

to fair trial of the victim in Asha Ranjan v. State of Bihar [(2017) 4

SCC 397]. In Puttaswamy (supra), it was held that the Court

should strike a balance wherever a conflict between two sets of

fundamental rights is projected. In R. Rajagopal (supra), the rights

pitted against one another were the freedom of expression under

Article 19(1)(a) and the right to privacy of the officers of the

Government under Article 21. This Court propounded thus:

"26. We may now summarise the broad principles flowing from the above discussion:

(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a

"right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent -- whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.

(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interests of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in press/media."

23. After adverting to the series of decisions on the point

including those discussed above, the Apex Court recently in

Kaushal Kishor v. State of U.P. and Others [(2023) 4 SCC 1], while

answering the question whether additional restrictions on the

right to free speech can be imposed on grounds not found in

Article 19(2) by invoking other fundamental rights, categorically

held that under the guise of invoking other fundamental rights or

under the guise of two fundamental rights staking a competing

claim against each other, additional restrictions not found in

Article 19(2), cannot be imposed on the exercise of the right

conferred by Article 19(1)(a) upon any individual.

24. In R. Rajagopal (supra), it was categorically held that

any publication concerning an individual's private affairs becomes

unobjectionable if it is based on public records, including court

records. It was observed that once a matter becomes a matter of

public record, the right to privacy no longer subsists, and it

becomes a legitimate subject for comment by the press and

media, among others. However, an exception has been carved

out against publishing the name and details of the female victim

of a sexual assault, kidnapping, abduction, or a like offence in the

interests of decency under Article 19(2). Ext.P2 write-up is based

on Ext.P3 bail order, a public document. Ext.P2 only contains the

prosecution version, the version of the victim, the defence

version and the final verdict as described in Ext. P3. While the

right of a fair trial and the right to privacy of the accused have to

be zealously guarded, equally important is the right of the

press/media to keep the public informed of matters of public

interest. These could include reporting of court proceedings. The

restrictions on the right to free speech and expression as

envisaged under Article 19(1)(a) of the Constitution have to be in

the interest of eight designated subject matters set out in Article

19(2), such as in the interest of the sovereignty and integrity of

India, security of the State, friendly relations with foreign States,

public order, decency or morality or in relation to contempt of

court, defamation or incitement to an offence. The petitioner

does not have a case that the right of respondent No.3 under

Article 19(1)(a) is in any way restricted under any of the subject

matters set out in Article 19 (2). On the other hand, his case is

that his right to privacy and reputation would override the right to

free speech and expression of respondent No.3. As held in

Kaushal Kishor (supra), under the guise of invoking other

fundamental rights, additional restrictions, over and above those

prescribed in Article 19(2), cannot be imposed upon the exercise

of one's fundamental rights.

25. The petitioner has also sought to frame guidelines by

this court with regard to the reporting of the details of his

criminal case by the media pending the investigation and trial.

The Constitution Bench of the Apex Court in Sahara India (supra)

had dealt with the same issue regarding imposing restrictions on

the right to report judicial proceedings and framing guidelines to

the media in the matter of publication of news items which are

sub judice in a court. Expressing the difficulty in finding an

acceptable constitutional balance between the free press and the

administration of justice, the Apex Court held that guidelines for

reporting court proceedings could not be framed across the

board. The Apex Court, however, recognised that aggrieved

parties have either the option of moving for an order of prior

restraint or an order of postponement. In Sudin S. v. Union of

India (2015 (1) KHC 617), a Full Bench of this Court had occasion

to consider the decision of the Apex Court in Sahara India (supra).

The Full Bench was called upon to decide the question whether

paragraph 23 of the norms of journalistic conduct framed by the

Press Council of India can be read as containing any prohibition

on the print media and whether writ restraining the media from

publishing/broadcasting information regarding a call for

harthal/strike can be issued. Following the dictum laid down in

Sahara India (supra), the Full Bench concluded that this Court, in

the exercise of writ jurisdiction, cannot issue any writ restraining

media from publishing/broadcasting any information regarding

the call of harthal/strike and that the norms framed by the Press

Council are only in the nature of guidelines. Thereafter, another

Full Bench of this Court considered a batch of writ petitions

[WP(C) Nos.21108/2014, 24499/2016, and 25718/2016 decided

on 24/5/2018] on the question whether the print and the

electronic media have unlimited and unrestricted freedom to

publish details of criminal cases pending their investigation and

trial and whether any restriction should be put in place by this

Court. Incidentally, the question whether this court can frame

guidelines regarding reporting of criminal cases at the stage of

investigation and trial was also considered. It was held that in

view of the decision of a co-ordinate Bench ( Sudin), it cannot take

a different view and lay down guidelines for reporting of court

proceedings. Though it was submitted that in the light of the

decision of the Constitution Bench of the Apex Court in

Puttaswamy (supra), the declaration of law in Sudin (supra)

requires reconsideration, in view of the fact that a co-ordinate

Bench decided Sudin (supra), the contention was not accepted

and referred the cases to be heard by a Larger Bench for an

authoritative pronouncement.

26. In the light of the above discussion, the challenge

against Ext.P2 on the ground that it violates the right to

reputation, dignity and privacy of the petitioner must fail.

27. The learned counsel next submitted that Ext.P2

publication is in violation of sub-clause (3) of Section 327 of

Cr.P.C. I find considerable force in the said submission.

28. Section 327 of Cr. P.C deems the criminal court to be

an open court. The Law Commission of India, in its 84 th report on

'Rape and Allied Offences' in the year 1980, expressed the

opinion that there is a need for legislation to preserve the

anonymity of the victim and accused in the case of rape and

allied offences. After that, the Parliament introduced sub-sections

(2) and (3) to Section 327 of Cr. P.C along with Section 228A in

IPC w.e.f. 25/12/1983. Sub-section (2) of Section 327 of Cr.P.C

specifically says that the inquiry into and trial of rape or an

offence under Sections 376, 376A, 376B, 376C, 376D or 376E of

IPC shall be conducted in camera. Sub-section (3) to Section 327

provides that where any proceedings are held under sub-section

(2), it shall not be lawful for any person to print or publish any

matter in relation to any such proceedings, except with the

previous permission of the court. Sub-section (3) of Section 228A

of IPC makes printing or publishing of any matter in relation to

such proceedings before a Court an offence unless its publication

is made with the previous permission of such Court. A proviso

was introduced to sub-section (3) to Section 327 of Cr.P.C w.e.f.

31/12/2009 which says that the ban on printing or publication of

trial proceedings in relation to an offence of rape may be lifted,

subject to maintaining confidentiality of name and address of the

parties. Notably, the term used in the proviso is "parties" and not

the "victim". The introduction of the word "parties" through the

proviso to sub-section (3) to Section 327 of Cr. P.C emphatically

brings within its protection the obligation to maintain

confidentiality of the names and addresses of the parties to the

litigation, which includes the accused as well. Hence, the law as

it stands now clearly provides that it shall not be lawful for a

person to print and publish any matter in relation to the inquiry or

trial of rape or an offence under Sections 376, 376A, 376B, 376C,

376D or 376E of IPC except with the previous permission of the

Court, that too subject to maintaining confidentiality of name and

address of the parties, both the victim and the accused.

29. The next question is whether the said prohibition

extends to the proceedings where the bail application is heard

and decided by the Magistrate or the Court. The term "any such

proceedings" found in sub-section (3) to Section 327 of Cr.P.C

refers to the term "inquiry into and trial of rape or offence under

Sections 376, 376A, 376B, 376C, 376D, or 376E of IPC" stated in

sub-section (2). The definition of "inquiry" in Section 2(g) in

Cr.P.C is not exhaustive. The term "inquiry" under Section 2(g) of

Cr.P.C has a very wide connotation and includes every step taken

by the Magistrate other than the trial conducted under Cr.P.C. The

proceedings by which the Magistrate or Court considers a bail

application is judicial one and the Magistrate or Court acts in a

judicial capacity. It is part of inquiry. Thus, the embargo under

sub-section (3) of Section 327 of Cr.P.C against publication of any

matter concerning the court proceedings also applies to bail

proceedings. The protection accorded to the parties under sub-

section (3) of Section 327 of Cr.P.C during trial or inquiry cannot

be denied at the stage of consideration of bail application by the

Magistrate or the Court. Respondent No.3 has no case that they

have obtained any permission from the Court which passed

Ext.P3 before publishing Ext.P2. Ext.P2 discloses the name of the

petitioner. Thus, it violates sub-section (3) of Section 327 of

Cr.P.C. As per the oral direction of this court, respondent No.3 has

already removed the news content in Ext.P2 from their website.

Hence, no further order is necessary. However, they shall not

hereafter publish any matter in relation to the above crime

except with the previous permission of the court, that too

maintaining the confidentiality of the parties.

On Ext.P4

30. Ext.P4 published by respondent No.4 is nothing but an

online copy of Ext.P1 bail order indexed on online search engines.

In today's hyper-connected world, court judgments and orders in

electronic forms are almost perpetually available. In open court

proceedings, nobody, much less the petitioner, can have a

grievance in uploading and publishing the judgments online. The

grievance of the petitioner is against allowing his personal

information to remain permanently in the digital public place,

invading his right to privacy. The learned counsel for the

petitioner submits that the digital immortality or perpetuity of the

petitioner's sensitive personal information available online with

Ext.P4 violates his right to privacy, reputation, dignity, and the

principles of presumption of innocence.

31. All the judgments and orders of the High Court are

available on its websites and in the Case Information System. The

Case Information System software is a giant move under the

initiative of the e-committee to make the Indian Judiciary more

transparent and litigant-friendly. The whole idea of CIS, in a

nutshell, is that the litigant should be able to view the daily status

of his case, the orders of the case, hearing dates of his case, the

progress of the case on any date, etc., online from any part of the

world. Indian Kanoon obtains judgments from the Case

Information System of Courts, which are accessible and free of

cost. The Courts shall have no copyright claim over judgments as

the same forms part of public records. Under the Copyright Act

1957, reproduction for judicial reporting, reproduction, or

publication of judgments are not copyright infringements. Indian

Kanoon provides free access to different statutes and case laws

of various High Courts and the Supreme Court of India [See

Vysakh (supra)]. The primary relief sought against Indian Kanoon

(respondent No.4) is to remove Ext. P4, which discloses the

petitioner's identity, from their website.

32. In the light of the declaration of the right to privacy as

a fundamental right by the Apex Court in Puttaswamy (supra), a

Division Bench of the High Court of Kerala recently in Vysakh

(supra) examined the right to privacy in the context of data made

available by the parties to the litigation before the court. The

Bench was dealing with a batch of petitions seeking the removal

of identifiable information from judgments or orders published in

various online portals and the High Court website, alleging that it

is a violation of the right to privacy and right to be forgotten. It

was contended that the publishers of judgments like Indian Kanoon

and other law journals have no right to publish the details of the

parties and allow them to be indexed, ignoring the privacy rights

of the parties. After adverting to several issues, such as the right

to privacy, the right to anonymity and the right to forget the past

of parties in lis, the right of the public to know the details of the

court proceedings, the right of the publishers and law journals to

report and publish judgments, the need to maintain transparency

in judicial records and the absence of a judicial policy regulating

uploading judgments containing name and details of the parties,

the Division Bench held that the claim for the protection of

personal information based on the right to privacy could not

coexist in an open court justice system, and a mere extension of

an open court system in digital space cannot itself be called

violative of privacy rights, in the absence of any law laid down in

this regard by the Parliament. It was further held that the court

cannot prevent the dissemination of case details in the public

domain, citing the privacy of individual litigants and the Individual

privacy rights must yield to the larger public interest of the court,

making judicial function open to all to ensure public confidence. It

was also held that reporting and publishing judgments are part of

freedom of speech and expression protected under Article 19(1)

(a) of our Constitution, and that cannot be taken away lightly

without the aid of law. Ultimately, it was concluded that the right

to be forgotten (a facet of the right to privacy) cannot be claimed

in pending or concluded court proceedings. The Bench, however,

permitted the masking of personal identities in matrimonial cases

and in cases where the law does not recognize the open court

system on the High Court website.

33. In view of the dictum laid down in Vysakh (supra), the

petitioner is not entitled to the relief sought to remove Ext.P4

from the website of respondent No.4 based on the right to

privacy. However, the Division Bench has made it clear that in

any family and matrimonial cases arising from the Family Court

jurisdiction or otherwise and also in other cases where the law

does not recognize the open court system (cases for rape and

sexual offences where the trial is held in camera), the Registry of

the Court shall not publish or shall not allow any form of

publication containing the identity of the parties on the website

or on any other information system maintained by the Court if the

parties to such litigation so insist. As stated already, sub-sections

(2) and (3) of Section 327 of Cr.P.C clearly stipulates that inquiry

into and trial of an offence of rape under Sections 376 376A,

376B, 376C, 376D, and 376E of IPC shall be conducted in camera

and no person shall print or publish any matter in relation to any

such proceedings except with the previous permission of the

Court, but subject to maintaining confidentiality of the name and

address of the parties. The offences alleged against the petitioner

are under Sections 376(2)(l) and (n) of IPC. Sub-section (1) to

Section 228A of IPC provides that any person who makes known

the name and identity of a person who is an alleged victim of an

offence falling under sections 376, 376A, 376B, 376C, 376D or

376E of IPC commits a criminal offence and shall be punishable

for a term which may extend to two years. Sub-section (3) to

Section 228A of IPC provides that any person who publishes any

matter in relation to the proceedings before a Court with respect

to the offences mentioned in sub-section (1) without the previous

permission of the Court shall be punished with imprisonment for a

term which may extend to two years and fine. However, the

Explanation to Section 228A clearly says that 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 the

said section. The Apex Court in Bhupinder Sharma v. State of

Himachal Pradesh [(2003) 8 SCC 551] and Nipun Saxena (supra)

has held that though the bar imposed under Section 228A of IPC

did not in term apply to the printing or publication of the

judgments of the High Court and the Supreme Court, in view of

the Explanation to Section 228A, it would be appropriate that in

the judgments of the High Court, Supreme Court or lower court,

the name of the victim should not be indicated. In Vysakh (supra),

the said protection is extended to all the parties of the litigation,

making it clear that in cases where the law recognize the open

court system, any form of publication containing the identity of

the parties on the website or any other informative system

maintained by the court shall not be allowed. Ext.P4 discloses the

petitioner's name, address, and personal details. Hence, I am of

the view that respondent No.4 is not at all justified in publishing

Ext.P4 on their website disclosing the name and personal details

of the petitioner. They should be directed to mask the name and

address of the petitioner in Ext.P4.

34. In the wake of the above findings, this writ petition is

disposed of with the following directions:

i) The respondent No.3 is directed not to publish any

matter in relation to Crime No.304/2021 of Maradu

Pollice Station, Ernakulam District, hereafter except

with the previous permission of the Court and subject

to maintaining confidentiality of the name and address

of the parties in terms of Section 327(3) of Cr.P.C.