SMRUTI TUKARAM BADADE versus STATE OF MAHARASHTRA & ANR on 11 January 2022

1. The need for and importance of setting up facilities which caterto the need for creating a safe and barrier free environment for recordingthe evidence of vulnerable witnesses has engaged the attention of this Court over two decades. In Sakshi v Union of India[1], this Court issueddirections in addition to those which were contained in the decision inState of Punjab v Gurmit Singh[2]. The relevant extract from the decisionin Sakshi (supra) reads thus:

“34. […]

(1) The provisions of sub-section (2) of Section 327 CrPC shall,in addition to the offences mentioned in the sub-section,also apply in inquiry or trial of offences under Sections 354and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be madewhere the victim or witnesses (who may be equallyvulnerable like the victim) do not see the body orface of the accused;

(ii) the questions put in cross-examination on behalf ofthe accused, insofar as they relate directly to theincident, should be given in writing to the presidingofficer of the court who may put them to the victimor witnesses in a language which is clear and is notembarrassing;

(iii) the victim of child abuse or rape, while givingtestimony in court, should be allowed sufficient breaksas and when required.”

2. More recently, in State of Maharashtra v Bandu @ Daulat[3], directions were issued by this Court for setting up “special centres forexamination of vulnerable witnesses” in criminal cases so as to facilitatea conducive environment for recording the statements of vulnerablewitnesses. This Court dwelt on the guidelines which have been issuedby the High Court of Delhi for recording the evidence of vulnerablewitnesses in criminal matters and noted that special centres have beenset up in Delhi for that purpose. While observing that the direction of the1 (2004) 5 SCC 5182 (1996) 2 SCC 3843 (2018) 11 SCC 163

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AHigh Court of Delhi for setting up special centres for vulnerable witnessesis consistent with the earlier decisions of this Court and supplement theprinciples which have been laid down, this Court issued the followingdirections:

“12. […] all High Courts can adopt such guidelines if the sameBhave not yet been adopted with such modifications as may bedeemed necessary. Setting up of one centre for vulnerablewitnesses may be perhaps required almost in every district in thecountry. All the High Courts may take appropriate steps in thisdirection in due course in phases. At least two such centres in theCjurisdiction of each High Court may be set up within three monthsfrom today. Thereafter, more such centres may be set up as perdecision of the High Courts.”

3. The fairness of the process of trial as well as the pursuit ofsubstantive justice are determined in a significant measure by the mannerDin which statements of vulnerable witnesses are recorded. The dignityof person, which is an intrinsic element of Article 21 of the Constitution,cannot be left to the vagaries of insensitive procedures and a hostileenvironment. Access to justice mandates that positive steps have to beadopted to create a barrier free environment. These barriers are notEonly those which exist within the physical spaces of conventional courtsbut those which operate on the minds and personality of vulnerablewitnesses. There is a pressing need to facilitate the salutary purposeunderlying the creation of a barrier free environment where depositionscan be recorded freely without constraining limitations, both physicalFand emotional. This requires not just the creation of infrastructure butsensitizing all stakeholders.

4. This Court issued notice to all the High Courts in pursuance ofwhich they have appeared through Counsel. Based on the material whichhas been placed before the Court, Ms Vibha Datta Makhija, amicusGcuriae, has prepared a tabulated statement of the position of infrastructurein various High Courts as of 25 October 2021. A copy of the tabulatedstatement is annexed as a broad indicator at Annexure ‘A’ to this order.Based on the deliberations which have taken place during the course ofproceedings in the Court, the suggestions which have been proposed byHthe amicus curiae and the responses of some of the Counsel who have SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA[DR. DHANANJAYA Y CHANDRACHUD, J.]

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appeared on behalf of the High Courts, the following directions are issuedunder Article 142 of the Constitution in furtherance of the earlier decisionsof this Court. These are intended to facilitate the implementation of thedirections which were rendered on 24 October 2017 in Bandu (supra)and earlier in other decisions.

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5. The directions are enumerated below:

(i) The definition of “vulnerable witness” contained in Clause3(a) of the ‘Guidelines for recording evidence of vulnerablewitnesses in criminal matters’[4] of the High Court of Delhishall not be limited only to child witnesses who have attainedthe age of 18 years and should be expanded to include,Cinter alia, the following categories of vulnerable witnesses:

(a) Age neutral victims of sexual assault read withSections 273 and 327 of the Code of CriminalProcedure 1973 and Section 354 of the Indian PenalCode 1860[5];D

(b) Gender neutral victims of sexual assault read withSection 2(d) of the Protection of Children fromSexual Offences Act 2012;

(c) Age and gender neutral victims of sexual assaultEunder Section 377 of the Indian Penal Code 1860read with paragraph 34(1) of the decision in Sakshi(supra); (d)Witnesses suffering from “mental illness” as definedunder Section 2(s) of the Mental Healthcare Act 2017Fread with Section 118 of the Indian Evidence Act1872; (e)Any witness deemed to have a threat perception underthe Witness Protection Scheme 2018 of the UnionGovernment as approved by this Court in MahenderChawla v Union of India[6]; G

4 “VWDC Scheme” available ath t t p : / /d e l h i h i gh co u rt . n i c . i n / wri t e r ea d d a t a/ u p l o a d / n o t i fi c a t i o n /notificationfile_lcwcd2x4.pdf.

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6 (2019) 14 SCC 615

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A(f)Any speech or hearing impaired individual or a personsuffering from any other disability who is consideredto be a vulnerable witness by the competent court;and (g)Any other witness deemed to be vulnerable by theBconcerned court.

(ii) The High Courts shall adopt and notify a VulnerableWitnesses Deposition Centres[7] Scheme within a period oftwo months from the date of this order unless a scheme isalready notified. The High Courts which already haveCexisting VWDC Schemes in place may consider makingsuitable modifications in conformity with the guidelineswhich are indicated in the present order. In formulating theVWDC Scheme, the High Courts shall have due regard tothe scheme which has been formulated by the High CourtDof Delhi, which has been duly approved in the judgment ofthis Court in Bandu (supra);

(iii) Every High Court should set up an in-house permanentVWDC Committee for continuously supervising theimplementation of the present directions and making aEperiodic assessment of the number of VWDCs required ineach district proportionate to the time required for recordingevidence of vulnerable witnesses and to coordinate theconduct of periodic training programmes;

(iv) Every High Court is requested to make an estimation ofFcosts towards manpower and infrastructure required to setup at least one permanent VWDC in every establishmentof the District Court (or additional Sessions Courtestablishments) and estimate the optimal number ofVWDCs required for the entire State within a period ofGthree months;

(v) Having due regard to the importance of conducting periodictraining programmes for manning and managing the VWDCsand sensitizing all stake holders, including judicial officers, H7 “VWDC”

members of the Bar and the staff of the court establishment,we constitute a Committee chaired by Justice Ms GitaMittal, former Chief Justice of the Jammu and KashmirHigh Court. The Committee shall devise and implement anAll India VWDC Training Programme, besides engagingwith the High Courts on the creation of infrastructure forVWDCs. The initial tenure of the Chairperson shall be fora period of two years. All High Courts or concerned roleassignees shall facilitate and give full cooperation inconducting training programmes in terms of the modulewhich may be prepared by the Chairperson;

(vi) Upon the estimation of costs prepared by the VWDCCommittee of each High Court, the State Government shallexpeditiously sanction the requisite funds within a period ofthree months from the date of the submission of the proposalor the end of the financial year, whichever is earlier, anddisburse the funds to the High Court in accordance withthe project plan. The State Government shall nominate anodal officer of the Finance Department who shall beassociated ex officio with the work of the VWDCCommittee of the High Court, to facilitate theimplementation of the proposal submitted by the High Courtin terms of these directions;

(vii) The High Courts shall ensure that at least one permanentVWDC is set up in every District Court establishment (oradditional Sessions Court establishments) within a periodof four months. The Registrars General of the High Courtsshall file compliance reports before this Court;

(viii) In many States, ADR Centres have been set up by theHigh Courts in close proximity to the court establishmentsin the districts. Where such ADR Centres are in place, theHigh Courts would be at liberty to ensure that the VWDCis made available within the premises of the ADR Centre A

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so as to secure a safe, conducive and barrier freeenvironment for recording the depositions of vulnerablewitnesses;

(ix) The National Legal Services Authority[8] as well as the StateBLegal Services Authorities[9] have a vital stake and role,particularly in devising and implementing sensitization andtraining programmes. The Chairperson of the Committeeappointed by this Court is requested to engage with NALSAand SLSAs (subject to the directions which may be issuedCby the Hon’ble Executive Chairperson of NALSA) so asto provide an effective interface for implementing thescheme for training;

(x) The Hon’ble Chief Justices of the High Courts would be atliberty to take all appropriate steps either on theadministrative side or on the judicial side in furtherance ofthe present directions and to monitor compliance on aperiodic basis; D

(xi) The Chief Justice of the High Court of Delhi is requestedEto make available a work space/room for the office of theVDWC Committee Training Centre and requisite staff,preferably personnel who have previously assisted in thedevelopment and implementation of the Training Modulesof the Delhi High Court and to designate a Coordinator ofFthe programme in consultation with the Chairperson.Appropriate secretarial and logistical support staff andequipment may be made available to the Committee on areasonable remuneration as fixed by the Chairperson. Theexpenses in that regard, including the honorarium payableGto the Chairperson shall be defrayed by the Ministry ofWomen and Child Development to the Director of the Delhi G

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SMRUTI TUKARAM BADADE v. STATE OF MAHARASHTRA[DR. DHANANJAYA Y CHANDRACHUD, J.]

Judicial Academy. The Chairperson may fix a reasonablehonorarium for the work assigned to her under the terms ofthis order. In the event that any further directions arenecessary, the Chairperson may seek them before this Courtand any communication in that regard shall be placed forfurther directions; and

(xii) The Ministry of Women and Child Development of the UnionGovernment shall designate a nodal officer for coordinatingthe implementation of these directions and for providing alllogistical support to Justice Ms Gita Mittal, the Chairpersonof the Committee appointed by this Court. This wouldinclude the payment of honorarium to the Chairperson interms as fixed by the Chairperson and meeting the expenses,including those towards engaging domain experts for trainingprogrammes. The Union Ministry of Women and ChildDevelopment and all Ministries of Women and ChildDevelopment in the States shall coordinate with theChairperson and extend logistical support. The High Courtsshall, in consultation with the Chairperson of the Committee,enlist experts in the field to facilitate proper training anddevelopment of all stake holders.

6. A copy of this order shall be forwarded by the Secretary Generalof this Court to the Secretary, Ministry of Women and Child Developmentof the Union Government and to the Secretaries of the Ministries ofWomen and Child Development of all the State Governments forcompliance. A copy of this order shall also be emailed to Justice Ms GitaMittal for information and also to the Registrars General of all the HighCourts for implementation by the High Courts.

7. We conclude by recording our appreciation of the dedicatedeffort of the amicus curiae.

8. The Miscellaneous Application is accordingly disposed of.

9. Pending application, if any, stands disposed of.

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