Gujarat High Court
Shivprasad Mulshankar Jani vs Sureshbhai Mayaram Sadhu & 2 on 12 June, 2014
Author: Anant S. Dave
Bench: Anant S. Dave, Sonia Gokani
R/SCR.A/1443/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 1443 of 2014
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SHIVPRASAD MULSHANKAR JANI....Applicant(s)
Versus
SURESHBHAI MAYARAM SADHU & 2....Respondent(s)
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Appearance:
MR DR BHATT, ADVOCATE for the Applicant(s) No. 1
MR AMIT N CHAUDHARY, ADVOCATE for the Respondent(s) No. 1 - 2
MR JK SHAH APP for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MS JUSTICE SONIA GOKANI
Date : 12/06/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) The petitioner has filed this petition under Article 226 of the Constitution of India seeking writ of habeas corpus to direct the respondent Nos.1 and 2 to produce minor corpus, granddaughter of the petitioner before the Court and after ascertaining the wishes of minor corpus, she be sent at liberty.
2 The petitioner is grandfather of corpus, aged around 15 years, who stays with her mother - Arti, who remarried with Shri Sureshbhai Mayaram Sadhu
- respondent No.1 upon untimely death of son of the Page 1 of 16 R/SCR.A/1443/2014 ORDER petitioner - Ronak.
3 The case of the petitioner is that he had received information from residents of the locality at Sanand that his granddaughter is physically exploited by her stepfather and for which even representation dated 15.02.2014 was submitted to the Police Sub Inspector, Sanand and neighbours of the minor girl also submitted representation to the Mamlatdar, Ahmedabad also. The petitioner further apprehends that his granddaughter minor may be dragged into human trafficking and she is under control and influence of stepfather and it may not be possible for her to come out openly and express her desire against respondent No.1. It is, therefore, submitted that she may be produced before this Court and her will may be ascertained. Thus, the anxiety of the petitioner - grandfather is to see that his granddaughter is rescued immediately or in alternative she may be sent to child protection home for the time being so that she may come out of the influence of her mother and stepfather.
4 Learned advocate appearing for petitioner would contend that minor is illegally confined by respondent Nos.1 and 2 and her life is in danger and in view of voice of grievance ventilated by residents of the locality, who had seen the plight of minor being exploited by her stepfather, this court would protect her by passing appropriate order.
Page 2 of 16R/SCR.A/1443/2014 ORDER 5 We have perused record of the case which
contains CR No.I20/2014 dated 08.02.2014 filed before Sanand Police Station, District Ahmedabad by minor corpus for the offences punishable under Sections 363, 366, 376, 114 and 506(2) of the Indian Penal Code read with provisions of Protection of Children from Sexual Offences Act, 2012 against six accused, who exploited the minor girl physically by committing the above offences and one of the accused include brother of the petitioner. It is reported that now investigation is carried out and charge sheet dated 03.05.2014 is also filed.
6 Today, corpus is present in the court. Considering the nature of proceedings, the matter is taken up in the chamber. The corpus has categorically and unequivocally adhered to the contents and allegations made by her in complaint being No.I 20/2014. She further states that no kind of harassment is meted out to her either by her mother or stepfather and on the contrary she is treated with utmost care and allegations levelled in this petition by her grandfather against her mother and stepfather viz. respondent Nos.1 and 2 are not only baseless, but frivolous. The corpus has further stated that on the contrary her stepfather and mother are compelled to leave Sanand and shifted to their native near Dehgam and even during pendency of this petition, they continued to receive threats from accused persons of the complaint being No.I20/2014. She expressed her Page 3 of 16 R/SCR.A/1443/2014 ORDER wish and will to go and stay with her mother and stepfather.
7 Considering the facts and circumstances of the case and desire expressed by the corpus, the corpus is permitted to go and stay along with her mother and stepfather viz. respondent Nos. 2 and 1 respectively.
8 In The case of Delhi Domestic Working Women's Forum vs. Union of India & Ors. reported in (1995)1 SCC 14, the Apex Court indicated the broad parameters in assisting the victims of rape in para 15 of the said judgment. Para 15 reads as under:
"15.In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape.
[1] The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well 20 acquainted with the criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.
[2] Legal assistance will have to be provided at Page 4 of 16 R/SCR.A/1443/2014 ORDER the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
[3] The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.
[4] A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
[5] The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.
[6] In all rape trials anonymity of the victim must be maintained, as far as necessary.
[7] It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.
[8] Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock Page 5 of 16 R/SCR.A/1443/2014 ORDER as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape."
9 In the case of Indian Woman Says GangRaped on Orders of Village Court published in Business and Financial News dated 23.01.2014, in Suo Motu Writ Petition [Cri.] No. 24 of 2014, the Apex Court held in paragraphs 10 to 24 and 27 as under:
"10 Violence against women is a recurring crime across the globe and India is no exception in this regard. The case at hand is the epitome of aggression against a woman and it is shocking that even with rapid modernization such crime persists in our society. Keeping in view this dreadful increase in crime against women, the Code of Criminal Procedure has been specifically amended by recent amendment dated 03.02.2013 in order to advance the safeguards for women in such circumstances which are as under:
154. Information in cognizable cases." (1) x x x Provided that if the information is given by the woman against whom an offence under Section 326A, Section 326B, Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, or Section 509 of the Indian Penal Code is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that:
(a) in the event that the person against whom an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, or Section 509 of the Indian Penal Code is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be Page 6 of 16 R/SCR.A/1443/2014 ORDER recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(2) x x x (3) x x x
161. "Examination of witnesses by police: (1) x x x (2) x x x (3) x x x Provided further that the statement of a woman against whom an offence under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, or Section 509 of the Indian Penal Code is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.
164. "Recording of confessions and statements." 5A In cases punishable under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, sub Section (1) or subSection (2) of Section 376, Section 376A, Section 376B, Section 376C, Section 376D, Section 376E, or Section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub Section (5), as soon as the commission of the offence is brought to the notice of the police:
164 A. Medical examination of the victim of rape. (1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the Page 7 of 16 R/SCR.A/1443/2014 ORDER consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twentyfour hours from the time of receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely: (i) the name and address of the woman and of the person by whom she was brought;
(ii) the age of the woman;
(iii) the description of material taken from the person of the woman for DNA profiling;
(iv) marks of injury, if any, on the person of the woman; (v) general mental condition of the woman;
and (vi) other material particulars in reasonable detail, (3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person competent, to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the report. (6) The registered medical practitioner shall, without delay forward the report to the investigating officer who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of subsection (5) of that section. (7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.
Explanation For the purposes of this section, "examination" and "registered medical practitioner"
shall have the same meanings as in section 53.
11 The courts and the police officials are required to be vigilant in upholding these rights of the victims of crime as the effective implementation of these provisions lies in their hands. In fact, Page 8 of 16 R/SCR.A/1443/2014 ORDER the recurrence of such crimes has been taken note of by this Court in few instances and seriously condemned in the ensuing manner.
12 In Lata Singh vs. State of U.P. and Ors., (2006) 5 SCC 475, this Court, in paras 17 and 18, held as under:
"17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, intercaste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo intercaste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such intercaste or interreligious marriage the maximum they can do is that they can cutoff social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or interreligious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes intercaste or interreligious marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
18. We sometimes hear of honour killings of such persons who undergo intercaste or inter Page 9 of 16 R/SCR.A/1443/2014 ORDER religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism".
13 In Arumugam Servai vs. State of Tamilnadu, (2011) 6 SCC 405, this Court, in paras 12 and 13, observed as under: "12. We have in recent years heard of Khap Panchayats (known as Katta Panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalised way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh case, there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.
13. Hence, we direct the administrative and police officials to take strong measures to prevent such atrocious acts. If any such incidents happen, apart from instituting criminal proceedings against those responsible for such atrocities, the State Government is directed to immediately suspend the District Magistrate/Collector and SSP/SPs of the district as well as other officials concerned and chargesheet them and proceed against them departmentally if they do not (1) prevent the incident if it has not already occurred but they have knowledge of it in advance, or (2) if it has occurred, they do not promptly apprehend the culprits and others involved and institute criminal proceedings against them, as in our opinion they will be deemed to be directly or Page 10 of 16 R/SCR.A/1443/2014 ORDER indirectly accountable in this connection". 14 Likewise, the Law Commission of India, in its 242nd Report on Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition) had suggested that:
"11.1 In order to keep a check on the high handed and unwarranted interference by the caste assemblies or panchayats with sagotra, inter caste or interreligious marriages, which are otherwise lawful, this legislation has been proposed so as to prevent the acts endangering the liberty of the couple married or intending to marry and their family members. It is considered necessary that there should be a threshold bar against the congregation or assembly for the purpose of disapproving such marriage / intended marriage and the conduct of the young couple. The members gathering for such purpose, i.e., for condemning the marriage with a view to take necessary consequential action, are to be treated as members of unlawful assembly for which a mandatory minimum punishment has been prescribed.
11.2 So also the acts of endangerment of liberty including social boycott, harassment, etc. of the couple or their family members are treated as offences punishable with mandatory minimum sentence. The acts of criminal intimidation by members of unlawful assembly or others acting at their instance or otherwise are also made punishable with mandatory minimum sentence.
11.3 A presumption that a person participating in an unlawful assembly shall be presumed to have also intended to commit or abet the commission of offences under the proposed Bill is provided for in Section 6.
11.4 Power to prohibit the unlawful assemblies and to take preventive measures are conferred on the SubDivisional / District Magistrate. Further, a SDM/DM is enjoined to receive a request or information from any person seeking protection from the assembly of persons or members of any family who are likely to or who have been objecting to the lawful marriage. 11.5 The provisions of this proposed Bill are Page 11 of 16 R/SCR.A/1443/2014 ORDER without prejudice to the provisions of Indian Penal Code. Care has been taken, as far as possible, to see that there is no overlapping with the provisions of the general penal law. In other words, the criminal acts other than those specifically falling under the proposed Bill are punishable under the general penal law.
11.6 The offence will be tried by a Court of Session in the district and the offences are cognizable, nonbailable and noncompoundable. 11.7 Accordingly, the Prohibition of Interference with the Freedom of Matrimonial Alliances Bill 20 has been prepared in order to effectively check the existing social malady."
15 It is further pertinent to mention that the issue relating to the role of Khap Panchayats is pending before this Court in Shakti Vahini vs. Union of India and Others in W.P. (C) No. 231 of 2010.
16 Ultimately, the question which ought to consider and assess by this Court is whether the State Police Machinery could have possibly prevented the said occurrence. The response is certainly a yes. The State is duty bound to protect the Fundamental Rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the States incapacity or inability to protect the Fundamental Rights of its citizens.
17 In a report by the Commission of Inquiry, headed by a former Judge of the Delhi High Court Justice Usha Mehra (Retd.), (at pg. 86), it was seen (although in the context of the NCR) that police officers seldom visit villages; it was suggested that a Police Officer must visit a village on every alternate days to "instill a sense of security and confidence amongst the citizens of the society and to check the depredations of criminal elements".
18 As a longterm measure to curb such crimes, a larger societal change is required via education and awareness. Government will have to Page 12 of 16 R/SCR.A/1443/2014 ORDER formulate and implement policies in order to uplift the socioeconomic condition of women, sensitization of the Police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against women. Victim Compensation:
19 No compensation can be adequate nor can it be of any respite for the victim but as the State has failed in protecting such serious violation of a victim's fundamental right, the State is duty bound to provide compensation, which may help in the victim's rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace.
20 In 2009, a new Section 357A was introduced in the Code which casts a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357A, the onus is put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. In the case of State of Rajasthan vs. Sanyam, Lodha, (2011) 13 SCC 262, this Court held that the failure to grant uniform exgratia relief is not arbitrary or unconstitutional. It was held that the quantum may depend on facts of each case.
21 Learned amicus also advocated for awarding interim compensation to the victim by relying upon judicial precedents. The concept of the payment of interim compensation has been recognized by this Court in Bodhisattwa Gautam vs. Miss Subhra Chakraborty, (1996) 1 SCC 490. It referred to Delhi Domestic Working Women's Forum vs. Union of India and others to reiterate the centrality of compensation as a remedial measure in case of rape Page 13 of 16 R/SCR.A/1443/2014 ORDER victims. It was observed as under: "If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the Scheme."
22 This Court, in P. Rathinam vs. State of Gujarat, (1994) SCC (Crl) 1163, which pertained to rape of a tribal woman in police custody awarded an interim compensation of Rs. 50,000/ to be paid by the State Government. Likewise, this Court, in Railway Board vs. Chandrima Das, (2000) 2 SCC 465, upheld the High Court's direction to pay Rs. 10 lacs as compensation to the victim, who was a Bangladeshi National. Further, this Court in SLP (Crl.) No. 5019/2012 titled as Satya Pal Anand vs. State of M.P., vide order dated 05.08.2013, enhanced the interim relief granted by the State Government from Rs. 2 lacs to 10 lacs each to two girl victims.
23 The Supreme Court of Bangladesh in The State vs. Md. Moinul Haque and Ors. (2001) 21 BLD 465 has interestingly observed that victims of rape should be compensated by giving them half of the property of the rapist(s) as compensation in order to rehabilitate them in the society. If not adopting this liberal reasoning, we should at least be in a position to provide substantial compensation to the victims.
24 Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case.
27 Further, we also wish to clarify that according to Section 357B, the compensation payable by the State Government under Section 357A shall be in addition to the payment of fine to the victim under Section 326A or Section 376D of the IPC.
Page 14 of 16R/SCR.A/1443/2014 ORDER Also, no details have been given as to the measures taken for security and safety of the victim and her family. Merely providing interim measure for their stay may protect them for the time being but long term rehabilitation is needed as they are all material witnesses and likely to be socially ostracized. Consequently, we direct the Circle Officer of the area to inspect the victim's place on daytoday basis.
10 In view of the above, the respondent - State to adhere to the above broad parameters and directions issued by the Apex Court in the cases of [i] Delhi Domestic Working Women's Forum (supra) and [ii] Indian Woman Says GangRaped on Orders of Village Court published in Business and Financial News dated 23.01.2014, in Suo Motu Writ Petition [Cri.] No. 24 of 2014 (supra) at the stage of registration of FIR, during the course of investigation and after submitting charge sheet before the competent court of law and at the end of the trial, if the accused is convicted, the concerned court shall address itself to provisions of Section 357 of the Code of Criminal Procedure, 1973 for awarding compensation to the victim.
11 Considering the facts and circumstances of the case and as per the law laid down by the Apex Court in the above decisions, the corpus being complainant and victim of heinous crime, as reflected prima facie upon reading of the complaint and used to receive threats from time to time from the accused persons for which she had to discontinue her studies of 10th Standard and to seek admission at a different Page 15 of 16 R/SCR.A/1443/2014 ORDER school in Dehgam, we will be failing in our duty if we do not direct the police authorities to protect her and parents i.e. respondent Nos.1 and 2 herein till the case is committed to the court. By allowing this petition and permitting the corpus to go and live with her mother and stepfather, we direct the respondent state authorities viz. District Superintendent of Police, Ahmedabad [Rural] to oversee that in case of any threat administers either to minor - complainant of the above FIR or her mother or stepfather with regard to subject matter of the petition and above FIR, immediate suitable action be taken, including providing protection to minor.
12 In the above terms, the petition of habeas corpus stands disposed of.
Rule is discharged.
(ANANT S.DAVE, J.) (MS SONIA GOKANI, J.) pvv Page 16 of 16