Gujarat High Court
Shankerbhai Bhikhaji Baraiya vs State Of Gujarat on 14 February, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/1322/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1322 of 2019
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SHANKERBHAI BHIKHAJI BARAIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the PETITIONER(s) No. 1,2,3,4,5,6
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2,3,4,5,6,7
MR MANAN MEHTA, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 14/02/2019
ORAL ORDER
1. Petitioners before this Court are seeking following reliefs;
(A) The Hon'ble Court may be pleased to admit this petition;
(B) The Hon'ble Court may be pleased to allow this petition by issuing appropriate writ, order or direction, directing the respondent Police Agency including District Superintendent of Police and Superintendent of Police to take all immediate action for registration of the FIR in respect of commission of cognizable offence as stated in the representation/complaint at Annexure I, in the interest of justice and also be pleased to direct to supervise the entire inquiry and investigation and file a report as contemplated u/s.173 of the Cr.P.C. in the interest of justice.
(C) The Hon'ble Court may be pleased to allow this Spl.Cri.Appln. by issuing appropriate writ, order or direction, directing the Deputy Collector and Collector to interms issue appropriate direction to take all measures against the social boycott of the petitioners and to see that petitioners are being permitted to do their business and live peacefully with their constitutional rights enshrined under the Constitution of India;
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(D) Pending admission and final disposal of this petition,
the Hon'ble Court may be pleased to direct the respondent State Agency to forthwith take action against the erring officers who have not registered FIR till date and also be pleased to direct to forthwith initiation action in respect of complaint made at Annexure I and to take immediate action in this regard in the interest of justice;
(E) Grant such other and further reliefs as the Hon'ble Court deems fit and proper in the interest of justice.
2. Learned APP on instructions has submitted that FIR has already been registered on 12.02.2019 being II C. R. No. 4 of 2019 for the offences punishable under Sections 323, 504 and 114 of the Indian Penal Code and also further submitted the report of Jafrabad Marine Police Station disclosing that because of limitation of GUJCOP Software, Section 4 of the Gujarat Prevention of Ex- Communication Act, 1949 has not been reflected in the FIR itself.
3. This Court has heard learned advocate for the petitioners Mr. Dagli, who has ventilated his grievance with regard to incident of 31.12.2018. He has further urged that the man is without business and he has been excommunicated on account of high handedness of the so called community leaders. He has further submitted that earlier also one Babubhai was excommunicated and he is suffering till date and this attitude is completely in violation of the ethos of the constitution of this country.
4. Let the Investigating Officer shall remain present on next date of hearing. He shall ensure the speedy investigation in this case and shall not come in owe of anyone while exercising the powers given under the Code. The District Superintendent of Police shall oversee this investigation.
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5. It would be appropriate to remind the words of the Honourable Apex Court in case of Shakti Vahini vs. Union of India reported in 2018 (7) SCC 192, which is as under;
" xxxx xxxx xxxx
II. Remedial Measures:-
(a) Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the 50 Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code including Sections 141, 143, 503 read with 506 of IPC.
(b) Upon registration of F.I.R., intimation shall be simultaneously given to the Superintendent of Police/ Deputy Superintendent of Police who, in turn, shall ensure that effective investigation of the crime is done and taken to its logical end with promptitude.
(c) Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may consider of establishing a safe house at each District Headquarter for that purpose. Such safe houses can cater to accommodate
(i) young bachelor-bachelorette couples whose relationship is being opposed by their families /local community/Khaps and (ii) young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their families/local community/Khaps). Such safe houses may be placed under the supervision of the jurisdictional District Magistrate and Superintendent of Police.
(d) The District Magistrate/Superintendent of Police must deal with the complaint regarding threat administered to such couple/family with utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire. After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be Page 3 of 4 R/SCR.A/1322/2019 ORDER extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis.
(e) The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps shall be entrusted by the District Magistrate/ Superintendent of Police to an officer of the rank of Additional Superintendent of Police. He shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the Superintendent of Police in not later than one week.
(f) The District Superintendent of Police, upon receipt of such report, shall direct the Deputy Superintendent of Police incharge of the concerned sub-division to cause to register an F.I.R. against the persons threatening the couple(s) and, if necessary, invoke Section 151 of Cr.P.C. Additionally, the Deputy Superintendent of Police shall personally supervise the progress of investigation and ensure that the same is completed and taken to its logical end with promptitude. In the course of investigation, the concerned persons shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of Khap Panchayat comes to the fore, they shall also be charged for the offence of conspiracy or abetment, as the case may be."
6. Let this matter appear on 21.02.2019 in first 10 matters. Direct service is permitted for its onwards communication.
(SONIA GOKANI, J) DRASHTI K. SHUKLA Page 4 of 4