Filing a case against rape: A step-by-step look into what happens in the Indian security sector syst
Filing a case against a perpetrator of rape is nothing short of an act of resistance: for it marks the choice of a survivor to stand up to her perpetrator, and bring him to book under the law. And yet, filing a rape case can be a tremendously harrowing process, no less: right from the paperwork to the painful process of reliving the case, there are plenty of things to think about.
One of the key factors, however, remains that very little is common knowledge beyond legal circles, on what the procedure in itself entails.
It must be remembered that rape is a crime of power more than a crime of lust, and it is true that victims are not necessarily only female. However, since the Indian Penal Code specifically addresses rape as a crime against women, this article will present the law as is.
For starters, it is a given that rape is a crime. Being a crime that is recognized and punishable under the Indian Penal Code, proceedings are initiated by filing a rape case report at a police station. From there on, proceedings go forth involving a mix of the police, the legal, and forensic medical systems.
The first step in initiating proceedings against rape is to start by filing a First Information Report (FIR) at the police station in the vicinity of either where the offence took place, or, where the person who faced the crime resides. Usually, while it is advisable to file the FIR at the earliest, delays are condoned if you can show sufficient cause to explain the delay.
The FIR should contain every bit of information pertaining to the crime, in this case, rape. It must be signed by the informant and the officer should record the FIR’s filing in a book maintained for this specific purpose. An informant is entitled receive a copy of the FIR free of cost.
A social worker (wished to remain anonymous) who assists survivor needs and offers follow-ups with the police on behalf of survivors in Delhi explains, “At this stage, many times, cases don’t go forth. Half the time, there is really no telling how the police will respond to the survivor. There are some absolutely wonderful officers who put their life on line for survivor support – but at the same time, there are also those who spend a lot of time just judging the survivor, asking her what she wore, why she was there, who would marry her and such things. Heaven forbid if it is a trans woman seeking justice – her situation is rendered all the more tougher at the hands of the police.
India doesn’t have a system of follow-ups with the police, and those that do this work are few and far between. This is one of the major reasons why cases don’t go forward. Very few survivors know that if the police officer refuses to record the information submitted by the informant, then, the informant can send the information in writing to the Superintendent of Police (SP), who is then required to start the investigation himself or direct any other officer subordinate to him to start the investigation.”
What happens after filing a rape case FIR?
After the FIR is filed, if there is enough evidence for the case to proceed, a challan is prepared. If there is insufficient evidence, the First Information Report is declared as Untraceable. When the First Information Report is found to be false, it may be cancelled altogether. The conclusion that it is found to contain a false report can be drawn only upon a thorough investigation. If an FIR is transferred to another Police Station on the grounds of jurisdiction, it is declared cancelled in that particular station, and its validity continues in the transferred station.
The investigation process determines whether a charge is false or not – which is a big fallacy because no investigation proceeds in a sensitized manner, which is one of the major reasons why cases fall flat at this stage. After filing a rape case and registering the First Information Report, its contents cannot be changed. Only the High Court can quash the First Information Report.
When the police records your complaint in the case of a Non-Cognizable offence, he gives you what is called as an “NC,” which is the Non-Cognizable Complaint Record. Advocate Sourya Banerjee explains, “After an allegation of rape has been filed with the police, the police register the FIR and launch a prima facie investigation. Based on the evidence of the investigation the Police would arrest the accused and files the charge sheet before the appropriate Court. The State Prosecution takes the case on behalf of the victim from then onwards, though the victim is well within their rights to have their own lawyer assist the State Prosecutor.”
After filing a rape case and registering an FIR, the complainant / informant is likely to be called to the police station for further statements, and potentially identification of people, or for clarifications. The investigation comprises gathering evidence. Any evidence that can place the survivor, witnesses and perpetrators at the time and place of the crime is crucial to the case, and is collected. Further, the crime scene is surveyed for any forensic or material evidence supporting the survivor’s account.
As part of this, a medical investigation of the survivor is also conducted, where all signs indicating rape are documented; however, care is taken to understand that the absence of signs does not automatically mean that rape did not occur. All this while, the survivor is to be given access to medical help and psychiatric support. The clothes, jewellery if any, and other relevant possessions on the person of the survivor at the time of the rape is collected. All material collected is listed in a document called the panchnama, which records all evidence collected. This must be signed by two people whom the survivor trusts.
Once the police identifies the accused and is aware of their whereabouts and identity, they may make an arrest. Sometimes, a number of suspects are arrested – out of which the accused is identified through an official identification parade – after which the others are released. Accused persons are sent for a thorough medical check up to examine their body for signs that may potentially validate the survivor’s account.
Once again, the absence of signs does not mean that rape has not occurred. At this point, the survivor and witnesses present detailed description of the crime in their own records, before a magistrate. If, for some reason, the survivor/complainant is not satisfied with the investigation, on concrete grounds, they can approach a Magistrate or The High Court for directions in appropriate cases, if you can show that there has been a miscarriage of justice.
Once the investigation is complete, if it is found to be a genuine case with appropriate evidence, a charge-sheet is filed, where the police submits a detailed account of the investigation to the Sessions Court, including all the information gathered, including the FIR and evidence. The charge-sheet is submitted to the court, and then, the case goes to trial.
A rape case is fought by the state in which the survivor lives in and not the survivor herself, so the public prosecutor and the lawyers of the accused take over. However, once the matter goes to court, the survivor/complainant can appoint a lawyer to assist the prosecution. Both sides put forth their arguments, during which the survivor, witnesses, and the accused are examined.
A rape trial is always held in-camera, which means that they are not open to the public to watch. If found guilty, the accused can be jailed for a minimum period of seven years, but which may extend to life imprisonment, and fined, depending on the exact nature of the assault. If the incident is termed as ‘rarest of the rare’, the accused can be sentenced to death.
There are instances where the accused may be acquitted, too. Advocate Sourya Banerjee explains, “The first thing we need to understand is that acquittal of an accused does not equal to the allegations being false or fake or the person being innocent. Acquittals from rape cases are not high because the cases are fake, but rather, can be due to multiple factors including, but not limited to, failure on part of the investigation agency, failure on part of the Prosecution to prove case beyond reasonable doubt (which is not very easy), withdrawal of cases due to societal pressure, pressure from influential accused and/or compromises.
The Court, Prosecution, and Police infrastructure in India are almost always strained to the limits. There is a huge backlog of cases which creates an additional burden on both the Prosecution and the Courts. This reduces the effort they can put into each case per se. It is important to understand that in cases like rape, the longer the primary investigation and trial phases go on, it may reduce the chances of conviction as the key forensic evidence like semen samples may get lost or destroyed due to inadequate storage facilities.”
And yet, we don’t hit the mark
On many occasions, the lack of institutional support in reality defeats the letter of the law. The police may not accept a complaint, or there may be several factors around the survivor herself that may prevent her from filing a complaint, or lead her to withdrawing a complaint after filing it. Falling short of the mark is often a function of the inadequacy of institutional support.
Further, a victim/survivor may force her to retract her complaint out of sheer trauma and the constant outpouring of victim-blaming narratives, which are largely a consequence of inadequate social support – both, in terms of infrastructure, and in terms of sensitivity. As Sourya puts it, “Not all Forensic Labs in India have the infrastructure or experienced teams to conduct the required DNA tests. Lack of such resources hampers the investigation teams ability to provide a iron clad case to the Prosecution lawyer.”
Adding to this, Dr Rema Rajeshwari, IPS SP, Jogulamba Gadwal district in Telangana, explains, “In the absence of a sustainable institutional support system, the rape victims go back to the same environment where they were violated, to be intimated by the rapist into turning hostile during the trial, the single most factor leading to low convictions in rape cases. Though stringent laws will do justice to a certain extent, in the absence of a collective social responsibility towards women’s safety, legal enforcement alone can’t protect our women. The criminal justice system we created is often oriented towards compensating for the violation, catching the culprit and producing them before Court. There is no effective system in place to know how the victim is doing, or to keep a track of the offender. It’s high time we refined the business process leading to conviction. Not many of our history records have actually profiled a sexual offender, let alone tracking them. We must realize that the ease of justice to women and absence of fear in them to step out of the safe walls, are the barometers of a society’s virtue; the sole parameter to calibrate the security indices.”