Calcutta High Court (Appellete Side)
Mosaref Hossain Mondal vs The State Of West Bengal & Ors on 26 April, 2012
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
(53) 25.04.2012.
ah
W.P. No. 5141 (W) of 2012
Mosaref Hossain Mondal
Versus
The State of West Bengal & Ors.
Mr. Pabitra Biswas
...For the petitioner.
Mr. Debasish Roy, Ld. P.P.
...For the State.
The writ petitioner is the de facto complainant of the First
Information Report which has been registered as Deganga Police
Station Case No. 442 dated 31.12.2010 under Section
363/366/120B of the Indian Penal Code in respect of kidnapping
of his 14 year old minor daughter. In the course of investigation
the girl was recovered and it appears that her statement has been
recorded under Section 164 of the Code of Criminal Procedure.
After much persuasion the police took steps to add offence
under Section 376 of the Indian Penal Code to array of
accusations in the instant case. Subsequently, it appears that the
principal accused was arrested and has been released on bail.
The charge‐sheet has been submitted in the aforesaid case and
the matter is awaiting trial.
In the meantime, the petitioner complains that the
accused persons and their associates have held out threats and
are intimidating the petitioner and his minor daughter who are
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vital witnesses of the aforesaid case and has further threatened
the petitioner that his daughter would be kidnapped again.
The efficacy of criminal justice administration depends on
the security and safety of the witness. It is the bounden duty of
the State to create a congenial atmosphere so that confidence is
instilled in the minds of the witnesses so as to enable them to
depose truthfully in a Court of law with any fear or favour.
In the case of Zahira Habibulla H. Sheikh & Ors. Vs. State
of Gujarat & Ors. reported in (2004) 4 SCC 158 the Supreme
Court held as follows :
" "Witnesses", as Bentham said : are the eyes and ears of justice.
Hence, the importance and primacy of the quality of trial
process. If the witness himself is incapacitated from acting as
eyes and ears of justice, the trial gets putrefied and paralysed,
and it no longer can constitute a fair trial. The incapacitation
may be due to several factors like the witness being not in a
position for reasons beyond control to speak the truth in the
court or due to negligence or ignorance or some corrupt
collusion. Time has become ripe to act on account of numerous
experiences faced by courts on account of frequent turning of
witnesses as hostile, either due to threats, coercion, lures and
monetary considerations at the instance of those in power, their
henchmen and hirelings, political clout and patronage and
innumerable other corrupt practices ingeniously adopted to
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smother and stifle truth and realities coming out to surface
rendering truth and justice to become ultimate casualties.
Broader public and societal interests require that the victims of
the crime who are not ordinarily parties to prosecution and the
interests of State represented by their prosecuting agencies do
not suffer even in slow process but irreversibly and irretrievably,
which if allowed would undermine and destroy public
confidence in the administration of justice, which may ultimately
pave way for anarchy, oppression and injustice resulting in
complete breakdown and collapse of the edifice of rule of law,
enshrined and jealously guarded and protected by the
Constitution. There comes the need for protecting the witness.
Time has come when serious and undiluted thoughts are to be
bestowed for protecting witnesses so that ultimate truth is
presented before the court and justice triumphs and that the trial
is not reduced to a mockery. The State has a definite role to play
in protecting the witnesses, to start with at least in sensitive cases
involving those in power, who have political patronage and
could wield muscle and money power, to avert the trial getting
tainted and derailed and truth becoming a casualty. As a
protector of its citizens it has to ensure that during a trial in court
the witness could safely depose the truth without any fear of
being haunted by those against whom he has deposed. Some
legislative enactments like the Terrorist and Disruptive Activities
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(Prevention) Act, 1987 (in short "the TADA Act") have taken
note of the reluctance shown by witnesses to depose against
dangerous criminals/terrorists. In a milder form also the
reluctance and the hesitation of witnesses to depose against
people with muscle power, money power or political power has
become the order of the day. If ultimately truth is to be arrived
at, the eyes and ears of justice have to be protected so that the
interests of justice do not get incapacitated in the sense of
making the proceedings before courts mere mock trials as are
usually seen in movies.
Legislative measures to emphasize prohibition against
tampering with witness, victim or informant have become the
imminent and inevitable need of the day. Conducts which
illegitimately affect the presentation of evidence in proceedings
before the courts have to be seriously and sternly dealt with.
There should not be any undue anxiety to only protect the
interest of the accused. That would be unfair as noted above to
the needs of the society. On the contrary, the efforts should be to
ensure fair trial where the accused and the prosecution both get
a fair deal. Public interest in the proper administration of justice
must be given as much importance, if not more, as the interests
of the individual accused. In this courts have a vital role to
play."
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In the case of National Human Rights Commission Vs.
State of Gujrat and others, reported in (2009) 6 SCC 767 the
Supreme Court reiterated the importance of witnesses'
protection for ensuring effective administration of criminal
justice in the following words :
"It is an established fact that witnesses form the key
ingredient in a criminal trial and it is the testimonies of these
very witnesses, which established the guilt of the accused. It is,
therefore, imperative that for justice to be done, the protection of
witnesses and victims becomes essential, as it is the reliance on
their testimony and complaints that the actual perpetrators of
heinous crimes during the communal violence can be brought to
book".
In the aforesaid judgement the Supreme Court further
held as follows :
"..............In most of the cases, witnesses are the victims
of the crime. Most vulnerable amongst them are women and
children. Under the existing system they are mere pawns in a
crime trial and there is very little concern for protecting their real
interests. The protection is necessary so that there is no
miscarriage of justice; but protection is also necessary to restore
in them, a sense of human dignity."
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The need for witness protection is furthermore in sexual
offences, particularly, when victim is a minor as in the instant
case.
Dealing with such a case of sexual violence, the Supreme
Court in the case of State of Punjab Vs. Gurmit Singh and others
reported in (1996) 2 SCC 384 observed the need to lay down
procedure for ensuring the comfort, dignity and security of rape
victims, as follows :
"...............The expression that the inquiry into and trial
of rape "shall be conducted in camera" as occurring in sub‐
section (2) of Section 327 Cr.P.C. is not only significant but very
important. It casts a duty on the court to conduct the trial of rape
cases etc. invariably "in camera". The Courts are obliged to act in
furtherance of the intention expressed by the legislature and not
to ignore its mandate and must invariably take recourse to the
provisions of Section 327(2) and (3) Cr.P.C. and hold the trial of
rape cases in camera. It would enable the victim of crime to be a
little comfortable and answer the questions with greater ease in
not too familiar a surroundings. Trial in camera would not only
be in keeping with the self‐respect of the victim of crime and in
tune with the legislative intent but is also likely to improve the
quality of the evidence of a prosecutrix because she would not
be so hesitant or bashful to depose frankly as she may be in an
open court, under the gaze of public. The improved quality of
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her evidence would assist the courts in arriving at the truth and
sifting truth from falsehood. The High Courts would therefore
be well‐advised to draw the attention of the trial courts to the
amended provisions of Section 327 Cr.P.C. and to impress upon
the Presiding Officers to invariably hold the trial of rape cases in
camera, rather than in the open court as envisaged by Section
327(2) Cr.P.C. When trials are held in camera, it would not be
lawful for any person to print or publish any matter in relation
to the proceedings in the case, except with the previous
permission of the court as envisaged by Section 327(3) Cr.P.C.
This would save any further embarrassment being caused to the
victim of sex crime. Wherever possible, it may also be worth
considering whether it would not be more desirable that the
cases of sexual assaults of the females are tried by lady Judges,
wherever available, so that the prosecutrix can make her
statement with greater ease and assist the courts to properly
discharge their duties, without allowing the truth to be sacrificed
at the altar of rigid technicalities while appreciating evidence in
such cases. The courts should, as far as possible, avoid disclosing
the name of the prosecutrix in their orders to save further
embarrassment to the victim of sex crime. The anonymity of the
victim of the crime must be maintained as far as possible
throughout."
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The 154th Report of the Law Commission (1996) noted as
follows :
"witnesses should be protected from the loathe of the
accused in any eventuality."
The 172nd Report of the Law Commission (2000), dealing
with the review of rape laws suggested that the testimony of a
minor in the case of child sexual abuse should be recorded at the
earliest possible opportunity in the presence of a Judge and a
child support person. It further urged that the court should
permit the use of video‐taped interview of the child or allow the
child to testify by a closed circuit television and that the cross
examination of the minor should be carried out by the Judge
based on written questions submitted by the defence. The
Commission also recommended insertion of a proviso to sec. 273
Cr.P.C. to the effect that it should be open to the prosecution to
request the court to provide a screen so that the child victim does
not see the accused during the trial.
In its 178th Report (2001), the Law Commission
recommended the insertion of s. 164A in the Cr.P.C. to provide
for recording of the statement of material witnesses in the
presence of Magistrates where the offences were punishable
with imprisonment of 10 years and more.
After referring to all the aforesaid recommendations
made by the Law Commission, the Apex Court in Sakshi V.
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Union of India reported in AIR 2004 SC 3566 laid down further
guidelines to ensure the protection of the victim of sexual abuse
from the intimidating presence of the accused. The Apex Court
held as follows :
"(1) The provisions of sub‐section (2) of S. 327 Cr.P.C.
shall, in addition to the offences mentioned in the sub‐section,
would also apply in inquiry or trial of offences under Ss. 354 and
377 I.P.C.
(2) In holding trial of child sex abuse or rape :
(i) a screen or some such arrangements may be made
where the victim or witnesses (who may be equally vulnerable
like the victim) do not see the body or face of the accused;
(ii) the questions put in cross‐examination on behalf of the
accused, in so far as they relate directly to the incident, should be
given in writing to the Presiding Officer of the Court who may
put them to the victim or witnesses in a language which is clear
and is not embarrassing;
(ii) the victim of child abuse or rape, while giving
testimony in Court, should be allowed sufficient breaks as and
when required.
These directions are in addition to those given in State of
Punjab V. Gurmit Singh."
To further strengthen law relating to witness protection
the legislature by the Criminal Law (Amendment) Act, 2005 and
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Code of Criminal Procedure (Amendment) Act, 2009 introduced
the following provisions to the Code of Criminal Procedure and
Indian Penal Code.
Section 195A Cr.P.C.: Procedure for witnesses in case of
threatening, etc. - A witness or any other person may file a
complaint in relation to an offence under section 195A of the
Indian Penal Code (45 of 1860).
Section 195A I.P.C.: Whoever threatens another with any injury
to his person, reputation or property or to the person or
reputation of any one in whom that person is interested, with
intent to cause that person to give false evidence shall be
punished with imprisonment of either description for a term
which may extend to seven years, or with fine, or with both;
and if innocent person is convicted and sentenced in
consequence of such false evidence, with death or imprisonment
for more than seven years, the person who threatens shall be
punished with the same punishment and sentence in the same
manner and to the same extent such innocent person is punished
and sentenced.
Section 228A I.P.C.: Disclosure of identity of the victim of
certain offences, etc. - (1) Whoever prints or publishes the name
or any matter which may make known the identity of any
person against whom an offence under section 376, section 376A,
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section 376B, section 376C or section 376D is alleged or found to
have been committed (hereinafter in this section referred to as
the victim) shall be punished with imprisonment of either
description for a term which may extend to two years and shall
also be liable to fine.
(2) Nothing in sub‐section (1) extends to any printing or
publication of the name or any matter which may make known
the identity of the victim if such printing or publication is -
(a) by or under the order in writing of the officer in charge of the
police station or the police officer making the investigation
into such offence acting in good faith for the purposes of such
investigation; or
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or
with the authorisation in writing of, the next of kin of the
victim;
Provided that no such authorisation shall be given by the
next of kin to anybody other than the chairman or the
secretary, by whatever name called, of any recognised
welfare institution or organisation.
Explanation. -For the purposes of this sub‐section,
"recognised welfare institution or organisation" means a
social welfare institution or organisation recognised in this
behalf by the Central or State Government.
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(3) Whoever prints or publishes any matter in relation to any
proceeding before a court with respect to an offence referred
to in sub‐section (1) without the previous permission of such
court shall be punished with imprisonment of either
description for a term which may extend to two years and
shall also be liable to fine.
Explanation. - The printing or publication of the judgement of
any High Court or the Supreme Court does not amount to an
offence within the meaning of this section.
In the light of the aforesaid statutory provisions and the
law declared by the Apex Court in the aforesaid judgements, I
proposed to deal with the matter in issue.
The instant case depicts a hapless state of affairs where
the father of a rape victim has approached this Court with
complaints of threats and criminal intimidation held out to him
and his family including the victim by the accused persons in
order to deter them from effectively prosecuting the criminal
case.
I have perused the case diary in the instant case as well as
complaints lodged by the petitioner with regard to such acts of
threats and criminal intimidation with the police authorities.
Such complaints of threat and criminal intimation have not been
acted upon at all by the police authorities and no steps have
been taken to protect the victim and his family from the wrath of
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the accused persons. On the other hand, a perusal of the case
diary shows that the investigation was conducted in a
lackadaisical manner and only after much persuasion the police
authorities added the offence under Section 376 in the instant
case.
A victim is as much a part of the criminal justice system
as the accused is. It is the bounden duty of the State to ensure a
free and effective access to justice to all victims of crime, more
particularly, victims of sexual assault. Failure to do so, infracts
the "equality protection clause" enshrined in Article 14 of the
Constitution of India which provides for "equal protection of
law" to all the citizens of India. Bearing in mind socio‐
psychological impact of sexual offences on victims, the
prosecuting agency must be alive and sensitive to its duty to
ensure all forms of support and/or protection to such victims so
that their access to justice is not impaired by the hostile acts of
the accused or the insensitivity which is endemic in our male
dominated society.
In view of the aforesaid facts, I feel appropriate directions
require to be passed so as to ensure adequate protection of the
petitioner, the minor victim and their relations who are vital
witnesses in the criminal trial.
I, therefore, dispose of the instant writ petition with the
following directions :
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(I) Respondent nos. 2 and 6 shall take all necessary steps to
ensure the safety and security of the petitioner, the minor victim and other witnesses in the instant case from any act of violence, coercion, undue influence and/or criminal intimidation from the accused persons. (II) The respondent nos. 2 and 4 shall forthwith act on the representation made by the petitioner on 13.01.2012 being annexure P‐5 to the writ petition, by drawing up a First Information Report in respect thereof against the accused persons under section 195A I.P.C. and/or take such other steps available in law against the accused persons for misusing their liberty while on bail. (III) In the event further complaints are made against the accused persons for threatening and/or intimidating the victim girl or other witnesses, the respondent nos. 2 and 4, having due regard to gravity of such accusation, provide police picket or such other measures as they may deem fit and proper to ensure the safety and security of the witnesses.
(IV) Police escort is to be provided to the victim girl and other witnesses from their residence to the Court house at the time when they go to the Court for deposing in the criminal case.
15(V) The respondent nos. 2 and 4 shall take all other steps which is necessary in order to ensure a free and conducive atmosphere so that the victim girl and other witnesses can depose with confidence in the forthcoming trial.
(VI) The provisions under section 327 Cr.P.C., 1973 for holding trial in camera and the other guidelines laid down by the Apex Court in the case of Gurmit Singh (supra) and Sakshi (supra) shall be followed in the course of trial in the instant case.
With the aforesaid directions, the instant writ petition is disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of necessary formalities.
( Joymalya Bagchi, J. ) ap