Right To Be Forgotten: HP HC Orders Masking Of Rape Accused’s Name After Acquittal

It is really most reassuring, most refreshing and most rejuvenating to learn that while upholding the right of rape accused to be forgotten after acquittal, the Himachal Pradesh High Court at Shimla in a most learned, laudable, landmark, logical and latest oral judgment titled State of Himachal Pradesh vs XXXXXXXXXX in Cr.M.P(M) No. 1234 of 2024 and cited in Neutral Citation No.: 2024:HHC:5102 that was pronounced just recently on July 11, 2024 has minced just no words to observe unequivocally that an accused who is acquitted or honourably discharged by the process of law should not be made to carry the “sword of his being accused for all his life”. It is most gladdening to note that the Division Bench of Himachal Pradesh High Court comprising of Hon’ble Mr Justice Tarlok Singh Chauhan and Hon’ble Mr Justice Sushil Kukreja maintained that, “The right to be forgotten and the right to be left alone are inherent aspects of the right to privacy which has been recognized as part of the right to life under Article 21 of the Constitution of India.” We thus see that the Shimla High Court most clearly underscored the enforcement of right to be forgotten in such cases. It also very rightly directed to mask the names of the accused as well as the victim from the digital database of Bilaspur Court as well as the High Court. No denying it!

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Tarlok Singh Chauhan for a Division Bench of the Himachal Pradesh High Court at Shimla comprising of himself and Hon’ble Mr Justice Sushil Kukreja sets the ball in motion by first and foremost putting forth in para 1 that, “Aggrieved by the acquittal of the respondent for the commission of offence punishable under Sections 363, 366, 376 of the Indian Penal Code read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the State has filed the instant application for grant of leave to appeal.”

To put things in perspective, the Division Bench envisages in para 2 that, “As per case of the prosecution, the respondent made a telephonic call to the prosecutrix on 14.10.2017 at about 9.10 p.m., asking her to accompany him and solemnize marriage, lest he ends up his life committing suicide. The prosecutrix met the respondent on the road along-with her testimonials, clothes and an amount of Rs.15,500/-. The respondent picked her up in his father’s car. The prosecutrix stayed with the respondent and on 16.10.2017, they proceeded to Manali and stayed with one ‘SM’. On 17.10.2017, the respondent asked the prosecutrix to perform marriage and thereafter allegedly committed sexual intercourse with her uptill 25.10.2017.”

Further, the Division Bench enunciates in para 3 that, “On 27.10.2017, both the respondent and the prosecutrix reached Bilaspur. The respondent left her at the bus stand and allegedly disappeared, so prosecutrix was forced to board a bus back to Manali on 28.10.2017, where she again went to the house of ‘SM’. The said ‘SM’ thereupon informed PW-2, the father of the prosecutrix, who then, came along-with the police and took the prosecutrix back. In the meanwhile, PW-2 had already lodged a written complaint Ext.PW-2/A on 15.10.2017 itself, based on which FIR came to be registered. The police tried to procure the CDRs of the phone of the prosecutrix and the respondent. The Investigating Officer SI Prabhakar Ram (PW-36) procured the date of birth certificates of the prosecutrix vide Ext.PW-12/A and from Nagar Parishad vide Ext.PW-9/A, on the basis of which, it was found that the prosecutrix was born on 03.07.2000. Copy of the parivar register along-with pedigree table was also prepared.”

As we see, the Division Bench then states in para 4 that, “On the identification of the prosecutrix, the spot map Ext.P-4/PW-36, purportedly the house of ‘SM’ was prepared. The photographs of the spot were also clicked. Thereafter, the bed sheet and jeans (trouser) were recovered and taken into possession. The preserves collected by the doctors were sent to FSL and result thereof was received vide Ext.PW-1/C. The report of DNA profiling Ext.PW-34/A was also collected. PW-1 the doctor who examined the prosecutrix opined that the possibility of sexual intercourse cannot be ruled-out.”

Do note, the Division Bench notes in para 7 that, “At the outset, we may observe that the prosecutrix, in the instant case was more than 17 years of age as on the date of alleged offence and now has got married with the accused and they are blessed with a daughter and are happily residing together. Secondly, it is the appeal of the State that has been preferred against the order of acquittal.”

Most fundamentally, the Division Bench underscores in para 8 that, “It is well settled by the Hon’ble Apex Court in a catena of decisions that an Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, Appellate Court must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. Further, if two reasonable views are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.”

It is worth mentioning that the Division Bench notes in para 13 that, “By applying the aforesaid principles to the case in hand and also bearing in mind that the prosecutrix and respondent have not only solemnized marriage, but also have daughter out of this wed-lock, we are of the considered opinion, that the prosecution has not been able to establish its case against the accused beyond reasonable doubt. The ‘SM’ could have been the best witness to have supported the case of the prosecution. But, unfortunately, she was never examined by the prosecution, in this case. There was no reason forthcoming for the same. Obviously, in such circumstances, this Court has no option but to draw an adverse inference against the prosecution.”

It cannot be lost on us that the Division Bench hastens to add in para 14 pointing out that, “Apart from the above, the prosecutrix herself has not supported the case of the prosecution and has clearly admitted that she had married the respondent and has a three years old daughter out of this wedlock. Obviously, in such circumstances, there was no occasion for the State in fact to file the present appeal as once it has come on record that the prosecutrix is living happy married life with the respondent, then, this Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix.”

To be sure, the Division Bench then deems it fit to add in para 15 stating that, “In taking this view, we are duly supported by the judgment rendered by the Hon’ble Apex Court in K. Dhandapani vs. The State by the Inspector of Police (Criminal Appeal No. 796 of 2022), decided on 9th May, 2022.”

Be it noted, the Division Bench then notes in para 16 that, “Further, having regard to the fact that the marriage between the appellant and the prosecutrix stands solemnized and out of this wedlock, they have a three years old daughter, it will be extremely harsh and totally unwarranted upon the child in case her father is labelled as a criminal only because he wanted to and did get married with the prosecutrix.”

It is also worth noting that the Division Bench notes in para 17 that, “This Court in plethora of cases has come across the issues where FIRs are registered with any rhyme or reason or out of knee jerk reactions and the proceedings are ultimately quashed by the Court in exercise of jurisdiction under Section 482 Cr.P.C. We, therefore, are of the considered view that after the accused gets blame-free by a process of law, the respondent cannot be seen to be carrying sword of his being accused for all his life. Right to oblivion; right to be forgotten are the principles evolved by the democratic nations, as one of the facets of right to information privacy. The rights have been evolved in the countries like France and Italy way back in the 19th century.”

While citing a very recent and relevant case law, the Division Bench notes in para 19 that, “The Hon’ble Apex Court in a case concerning squabble between husband and wife, wherein the High Court had rejected the plea of the parties therein to mask their names, directed the High Court to evolve methodology for masking the names of both the accused and the victim. The order passed by the Hon’ble Apex Court in case XXXXX vs. YYYY2 2022 SSC online SC, neutral citation 2024 KHC: 14572, on dated 18.07.2022 reads as follows:-

“i) Learned counsel for respondent No.1 has entered appearance and joins in the request made by the petitioner.

ii) The petitioner submits that the display of her name in the public domain with respect to offences committed on the modesty of woman and Sexually Transmitted Disease(STD) has caused immense loss by way of social stigma and infringement of her personal privacy. Even if the name of the respondent No.1 appears, it causes the same result.

iii) The petitioner pleads the ‘right to be forgotten’ and ‘right of eraser’ being rights of privacy, the name of the petitioner as well as the respondent be removed/masked along with the address, identification details and case numbers to the extent that the same are not visible for search engines. We thus, call upon the Registry of the Supreme Court to examine the issue and to work out how the name of both the petitioner and respondent No.1 along with address details can be masked so that they do not appear visible for any search engine.

iv) The IA and the Miscellaneous Application accordingly stand disposed of.

v) The needful be done within three weeks from today by the Registry.””

Most remarkably, the Division Bench propounds in para 20 that, “Thus, there can be no dispute that right of privacy of which the right to be forgotten and the right to be left alone are inherent aspects. Once that be so, obviously, the names of the prosecutrix as also the appellant need to be masked/erased so that they do not appear/visible in any search engine, least the same is likely to jeopardize and cause irreparable hardship, prejudice etc., not only to the respondent and the prosecutrix, but to their little daughter in their day-today life, career prospects etc. etc.”

Most sagaciously, the Division Bench expounds in para 21 postulating that, “Article 21 of the Constitution of India mandates that no person shall be deprived of his life or liberty except in accordance with law. It is more than settled that the expression ‘life’ cannot be seem to connote a mere animal existence it has a much wider meaning. It takes within its sweep right to live with dignity. In the crime, once the accused gets acquitted/honorably discharged by a competent Court of law or this Court, and the order becomes final, the shadow of crime, if permitted to continue and substitute its place for the shadow of dignity on any citizen, it would be a travesty of the concept of life under Article 21. Every person has a right to live with dignity.”

Most significantly and as a corollary, the Bench then mandates in para 22 holding that, “In view of the aforesaid discussion, we not only do not find any merit in the instant application and accordingly reject the application for grant of leave to appeal, but also direct masking the names of the appellant and the prosecutrix from the data base of the learned Special Judge, Bilaspur and further direct the Registrar General of this Court to mask the names of the appellant in the digital records, pertaining to the instant appeal.”

Finally, the Division Bench then concludes by directing in para 23 that, “Records be sent down.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.