Step-by-step guide to taking legal action against the person who committed the assault
Disclaimer: This guide is not intended to replace professional support, guidance, advice, or diagnosis.
Trigger warning: A trigger is a word or an event that can cause an action to take place. In this toolkit certain words can be triggering for survivors. Which means that reading those words or sentences can cause a survivor to either feel uncomfortable or anxious and might even take them back to an unpleasant memory. If while reading someone does experience this, it is best to do a quick grounding exercise.
Step 1: File a First Information Report (FIR)
The first and foremost step is to file an FIR at the nearest police station. An FIR is a detailed narrative of the incident that took place.
At the time of filing an FIR, in cases of women-related offences such sexual harassment, sexual assault, or rape, it is mandatory that such information be registered by a woman police officer. Upon the filing of the FIR, the police investigates and sends the case to the relevant court.
- It is recommended that the FIR should be filed within 24 hours of the incident. It is also recommended to call the police as soon as possible after the incident.
- If the victim is unable to reach the police station, their family members can call the police to the house or the hospital, wherever the victim may be.
- The victim’s family can also file the FIR on their behalf.
- The FIR can be filed at a later time when the victim is ready and willing to report.
- In case there is a delay in filing of the FIR, the delay should be reasonably explained. For example, if the victim has not been able to talk to people about the incident for a long period of time (months or even years after the incident), an FIR can still be registered. You can register an FIR at any time, even after waiting for a long time.
Keeping the FIR: The FIR should contain every bit of information related to the crime. The police officer is required to read out the contents of the FIR, and only then must the complainant (victim) sign the FIR. The officer should record the FIR’s filing in a book maintained for this specific purpose. A copy of this FIR will be given to you by the police free of charge. Please remember to note the FIR number and date of registration of the FIR.
Refusal To File FIR: If the police officer refuses to file the FIR you can approach higher authorities like their supervisor and file a complaint against the officer-in-charge.
Transferring an FIR to a different police station: If an FIR is transferred to another Police Station on the grounds of jurisdiction (the first Police Station does not have the authority over the area where the crime occurred), it is declared cancelled in the first police station, and will be valid in the new police station where it was transferred to.
After filing a rape case and registering the FIR, its contents cannot be changed. Only the High Court can dismiss the FIR.
When the police records your complaint in the case of a Non-Cognisable offence (a case in which a police officer has no authority to arrest without a warrant), the officer gives you what is called an “NC,” which is the Non-Cognisable Complaint Record.
After the FIR is filed, if there is enough evidence for the case to proceed, a challan is prepared. If there is not enough evidence, the FIR is declared as untraceable. If the FIR is found to be false, it may be cancelled altogether. A thorough investigation is needed to find out if an FIR is false.
After filing a rape case and registering an FIR, the complainant (victim) or informant is likely to be called to the police station to give further statements, and potentially to identify the perpetrator, or to answer more questions. The investigation includes gathering evidence.
- Any evidence that can place the victim, witnesses, and perpetrators at the time and place of the crime is very important to the case and is collected.
- Further, the crime scene is investigated for any forensic or material evidence supporting the survivor’s account of what happened.
Arrest of the Accused
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 (provision under Section 53 of the Criminal Procedure Code) to examine their body for signs that may validate and confirm the survivor’s statement. This examination is conducted by a registered medical practitioner at the order of the police.
Once again, the lack of evidence does not mean that rape has not occurred. At this point, the survivor and witnesses give detailed descriptions of the crime in their own records, in front of a magistrate.
In cases where the identity of the accused (the person who committed the assault) is known, the accused may also be arrested on the same day as the filing of the FIR or the very next day.
Note on the charge sheet: Once the investigation is complete, if it is found to be a genuine case with appropriate evidence, a charge sheet is filed. 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 charge sheet is a report filed by the police telling the magistrate that enough evidence has been collected for the court to inquire into the offence. It is to be filed in about 90 to 120 days after filing the FIR. The victim can obtain this information from the public prosecutor or their lawyer.
That said, it is not always the case that the charge sheet is being filed within the set time frame by the police. There have been cases where the police took longer than anticipated to complete investigation and to file the charge sheet.
What To Do If You’re Not Satisfied With The Investigation: If, for some reason, the survivor/complainant is not satisfied with the investigation, with good reason, they can approach a Magistrate or The High Court for assistance, if you can show that there has been a miscarriage (failure) of justice.
Some instances of miscarriage of justice may include: bias in proceedings, influence of power to change the outcome of proceedings, pressure on the victim to withdraw the case, etc. To understand whether there has been a miscarriage of justice, the key sign is the absence of fairness in the proceedings.
Step 2: Get a medical examination
A medical investigation of the survivor is also conducted, where all evidence of the assault are documented. However, you must note that not finding evidence does not automatically mean that rape or assault did not happen.
Once an FIR is filed, the police will accompany the victim to the nearest hospital or medical centre for a medical examination, ideally within 24 hours of the incident. Please note, the doctor or hospital staff are not required to wait for the police to conduct an examination and neither can they refuse to if the victim chooses to go to them directly. In the case of a female victim, a female police officer will accompany her to the hospital. And if such an examination is done by a male doctor then it must be done with another female nurse or attendant in the room. For more information, on the medical examination please visit the medical section of this toolkit.
|Note on the Illegal Two-Finger Test
Please note that as per the Medico-Legal Case (MLC) guidelines issued by the MoHFW, medical practitioners/doctors cannot carry out the two-finger test. The two-finger test (also known as the PV, per-vaginal test) is a test carried out by doctors to note the “laxity” (inner width or looseness) of the vagina and presence or absence of the hymen. Before the guidelines were issued, the Supreme Court had held that the results of the two-finger test are an “arbitrary and unlawful interference with the survivor’s reputation.” In a 2013 ruling, it stated that the two-finger test conducted on survivors of rape is a violation of their right to privacy, physical and mental integrity, and dignity. The two-finger test has since been banned.
The victim has a right to a copy of the medical report and this report should also be shared with the investigating officer.
Step 3: Accessing a Lawyer
After the registration of the FIR and the medical examination, a statement is recorded. The victim will be required to record their testimony (formal statement) in front of the Magistrate. This, too, is part of the pre-trial stage. It is suggested that the victim is accompanied and advised by a private legal counsel, or lawyer.
Public Prosecutor and Private Lawyer
In criminal cases, the Public Prosecutor (a state appointed lawyer) argues the case on behalf of the victim. The victim also has the option of hiring a lawyer independently or requesting for legal aid if they cannot afford to pay a lawyer’s fees. However, a private lawyer will have a limited role and will assist the Public Prosecutor. Please note that normally Public Prosecutors do not engage with victims and therefore it is best if the victims get another lawyer. The District State Legal Authority, State Legal Services Authority or National Legal Services Authority of India will appoint and pay for a lawyer to represent the victim regardless of the victim’s income.
The victim will be required to fill in an application form to apply for legal aid. The form can be obtained free of cost from District Headquarters and from Sub-Divisional Headquarters in every state in India. This process can be done offline or online through the application process on the website of NALSA.
Step 4: Court Process
The pre-trial stage takes about 2-3 months to complete. The case is then listed before the court for presentation of evidence, witnesses, and arguments for a judicial determination of the facts, and whether the offence is made out. The victim is likely to be examined and cross examined (questioned) as part of the trial along with the other witnesses.
The public prosecutor and the lawyers of the accused take over. 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, the witnesses, and the accused are questioned.
If it is a rape case, then the case is to be heard in court on a day-to-day basis and completed within 2 months from the date of filing the charge sheet. A rape trial is always held in-camera, which means that they are not open to the public to watch.
6. A comprehensive guide to Women’s legal rights. Majlis Legal center prepared for IIT Kanpur, Retrieved from Rights, A Comprehensive Guide to Women’s Rights
7. Interview with Ms. Anuradha Shankar, Additional DG (Training), Madhya Pradesh Police and Dr. Vineet Kapoor, Deputy Director Madhya Pradesh Police Academy
8. Interview with Ms. Anuradha Shankar, Additional DG (Training), Madhya Pradesh Police and Dr. Vineet Kapoor, Deputy Director Madhya Pradesh Police Academy
9. Interview with Ms. Anuradha Shankar, Additional DG (Training), Madhya Pradesh Police and Dr. Vineet Kapoor, Deputy Director Madhya Pradesh Police Academy
10. Jayshree Bajoria(2017, November 9). Scroll.in publication, Retrieved from Doctors in India Continue to Traumatise Rape Survivors with the Two-Finger Test, Human Rights Watch
11. A study of pre-trial and trial stages of rape prosecutions in Delhi(Jan 2014-March 2015). Towards Victim Friendly Responses and Procedures for Prosecuting Rape.
12. National Legal Services Authority. Retrieved from https://nalsa.gov.in/content/how-apply
13. A study of pre-trial and trial stages of rape prosecutions in Delhi(Jan 2014-March 2015). Towards Victim Friendly Responses and Procedures for Prosecuting Rape.