On November 1, Pallavi Gogoi, head of National Public Radio‘s business desk, wrote in The Washington Post that former Minister of State for External Affairs MJ Akbar had raped her. Gogoi alleged that in his hotel room in Jaipur, where Akbar had called her to discuss a story, he ripped off her clothes and raped her. The incident, as Gogoi recalls in the article, took place in 1994. Gogoi was 23.

Following Gogoi’s disclosure, Akbar and his wife, Mallika Akbar, issued statements in the matter. While Akbar denied the allegations, Mallika called it a “lie”. Gogoi responded that she stood by every word in her published account.

Accusations against Akbar started surfacing from October 8 onward after journalist Priya Ramani shared her account. Following this, several women came forward to share their experience of sexual harassment and assault at the hands of Akbar. Akbar filed a criminal defamation complaint against Ramani last month.

Newslaundry spoke to four lawyers to weigh in on the legal recourse available to victims of rape, with primary focus on the following: Can the police initiate a suo moto inquiry based on media reports? Can courts/magistrates take suo moto cognisance of rape allegations made in the media? What is the jurisdiction of police stations and the statute of limitations, if any, since the alleged offence took place 24 years ago?

Weighing in on the issue of suo moto cognisance and inquiry, Delhi-based advocate Swaty Singh Malik says, “The police can suo moto register a zero FIR and initiate an investigation but eventually the complainant will have to come forward to register a formal complaint.” Malik says once a zero FIR is registered, the police will have to notify the survivor, who will have to cooperate with the investigation—including lodging a formal complaint—for the case to move forward.

Speaking to Newslaundry, advocate Amba Salelkar says, “Anyone can set the criminal law in motion. If you are aware that a cognisable offence has taken place, any person can make a complaint to the police. To not report an offence is a non-cognisable offence in itself.” However, Salelkar emphasised that registration of an offence should be done with the informed consent of the victim since the victim will bear most of the consequences of these proceedings.

In Gogoi’s case, Salelkar says, “The police can register a first information report based on the statement [the WaPo article] that Gogoi has made. But subsequently, in the course of the inquiry, the police will call her and other people whom she has named as witnesses.”

Lawyer and policy analyst Prianka Rao agrees. She says, “Because these are criminal offences of intimate nature, Gogoi will have to come forward and also give evidences at the stage of trial.”

Tahini Bhushan, a Delhi-based lawyer practising in the high courts and district court, says, “In practice, the police refuse to file an FIR when it comes to crimes of this nature in the absence of a complainant because it would reflect in the crime record of the said station. So the only recourse left for the complainant is to approach the concerned magistrate under Section 156 (3) of the Code of Criminal Procedure (CrPC).”

Otherwise, according to Section 190 (cognizance of offences by magistrates) of the CrPC, any magistrate of the first class, and any magistrate of the second class who has been empowered by the Chief Judicial Magistrate may take cognisance of any offence under the following:

(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

Section 190(1)(c) essentially means that a magistrate can trigger the criminal justice proceedings based on media reports that bring to his knowledge the commission of an offence, Rao says. He can direct the police to start an investigation into the matter and depending on the investigation, the framing of charges and furtherance of the case would be decided, she adds.

Explaining the reason behind the courts taking suo moto cognisance in criminal cases, Salelkar says, “Crime is essentially against the state. So when a woman is raped, it isn’t just her body that has been violated but it’s also that the state’s monopoly over violence has been challenged, so to speak. Which is why in criminal cases, barring a few exceptions like defamation, the complainant is the state. And the victim is represented by a public prosecutor.”

In Gogoi’s case, she’s a US citizen, what jurisdiction would the police in India have? Rao says, “Since the alleged offence took place on Indian soil, the police and courts have full territorial jurisdiction in that sense.” Salelkar adds, “The jurisdiction would lie with the police station under which the act took place. If it’s a continued chain of offences, then any police station in the chain of offences will have jurisdiction.”

As far as the statute of limitation is concerned, Salelkar says, “Rape is an offence which is punishable by up to life imprisonment. There is no statute of limitations. You can file a police complaint at any given time.”

Bhushan says, “While there’s no limitation on reporting rape, nevertheless, the victim has to explain the delay [in reporting the crime] before the court allows the same to go for trial.”