Gujarat High Court
Vikramsinh Champaksinh Parmar vs State Of Gujarat on 29 July, 2020
Author: Sonia Gokani
Bench: Sonia Gokani, N.V.Anjaria
R/SCR.A/765/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 765 of 2020
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VIKRAMSINH CHAMPAKSINH PARMAR
Versus
STATE OF GUJARAT
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Appearance:
MR.DARSHAN A. DAVE(7921) for the Applicant(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3,4,5
MR MANAN MEHTA, ADDL.PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
UNSERVED WANT OF TIM(31) for the Respondent(s) No. 6
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 29/07/2020
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1.
2. By way of this petition preferred under Article 226 of the Constitution of India seeking writ of habeas corpus is aimed at the production of the corpus, who was barely 16 years of age,where the present petitioner has sought for the following reliefs:-
"(15) In the above-said premises, the petitioner prays that:-
(A) This Hon'ble Court may kindly be pleased to issue an appropriate writ of Habeas Corpus to the respondents directing them to produce the corpus i.e. the minor daughter of the petitioner in the Hon'ble Court and this Hon'ble court may further be pleased to verify her wish and on ascertaining her wish, this Page 1 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER Hon'ble Court may kindly be leased to hand over custody of the minor daughter of the petitioner- Mahiba;
(B) Pending hearing and final disposal of the present petition, this Hon'ble Court may be pleased to direct the respondents to produce the corpus i.e. the minor daughter of the petitioner- Mahiba in this Hon'ble Court;
100.This Hon'ble Court may be pleased to grant such other and further relief and/or order as deemed fit in the facts and circumstances of the case and in the interest of justice."
2. This Court (Coram: S.R.Brahmbhatt & A.P. Thaker, J.J.) issued notice on 31.01.2020 making it returnable on 07.02.2020. Thereafter, time again, the action taken reports have been submitted. Eventually, on 29.06.2020, the corpus was presented before us through the video conferencing arranged at Mehsana District Court and Superintendent of Police, Mehsana also remained present through video conferencing. The corpus, being minor, was not inclined to join her parents with an apprehension that she may be engaged elsewhere before she turns major. She was directed to be taken at Women Protection Home, Patan.
3. On 06.07.2020, when we came to know that the corpus was not housed at Women Protection Home, Patan, we passed the following order on 06.07.2020:-
2. "1.By a detail order passed on 29.06.2020, the Superintendent of Police, Mehsana was obligated to make an arrangement for the corpus to be taken to the Women Protection Home, Patan, where he had proposed, noticing the fact that she was unwilling to join the parents and in Page 2 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER absence of any Protection home at District Mehsana.
1. The order dated 29.06.2020 with emphasis on certain paragraphs deserves reproduction: -
"6. Noticing the fact that she is unwilling to join the parents, at this stage, apt would be to direct her being housed at Women Protection Home, Patan where she shall be kept for the period of 8 weeks initially.
6.1 Let good care of physical, mental and emotional health be taken. The Superintendent of Police, Mehsana shall also coordinate with the Women Protection Home, Patan to ensure her safety. He shall also make attempts to send her to the counsellors for motivating her to study further and take charge of her life for better future. Let an arrangement of clothing and basic necessities for the corpus be made at the end of the Superintendent of Police, Mehsana considering the circumstances under which she is being sent to the Women Protection Home.
8. While the corpus is at Women Protection Home, Patan she shall be engaged in some productive and constructive activities and shall be motivated to study further or take up some kind of vocational training for her batter future. Endeavours shall be made to make her self-reliant eventually.
9.The parents, if are keen to meet the daughter at the Women Protection Home, let the same happen in presence of one of the office bearers of the Women Protection Home and with a clear understanding to the parents that in no manner she shall be forced to do anything against her wish and will. The parents must also furnish the undertaking before the Superintendent of Police, Mehsana that they shall not make any attempt to engage her before she completes her age of 18 years, even when she agrees to join the parents, and if her custody eventually is handed over to the parents."
2.Today morning, learned advocate Mr. Darshan Dave and learned Additional Public Prosecutor Mr. Manan Mehta had made request to mention this matter independently. 2.1.It was urged by learned advocate Mr. Dave appearing for the applicant -father that the order of this Court was not complied with. The girl was not sent to the Women Protection Home, Patan and was instead kept at the Police Station. None of the directions issued by the Court has been followed and now, the corpus is keen to join the parents and therefore such permission be granted.
Page 3 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020R/SCR.A/765/2020 ORDER 2.2.Learned Additional Public Prosecutor Mr. Manan Mehta made a request since the Women Protection Home, Patan refused to house the present applicant on the ground that she is below 18 years of age and the Women Protection Home, Patan being a self-help group is not obliged to keep anyone in the shelter home unless it chooses to do that itself.
3.We permitted the matter to be taken on board by preparing a separate board and the link was also sent to the learned Additional Sessions Judge, Visnagar for arranging the video conference as the corpus and her parents were keen to join from there. In the meantime, learned APP has also called for the report of the Deputy Superintendent of Police, Mehsana which revealed that on 29.06.2020 the medical test of COVID-19 virus of the corpus was carried out. Her statement also was recorded under Section 164 of the Code of Criminal Procedure. She was counseled at Sakhi One Stop Centre and was also kept at the Women Police Station where, there is also a facility of attached toilet and bath. She was sent the sweets by the Superintendent of Police and five pairs of new cloths were also arranged for her. All arrangements for her food and clothing had been made and her parents were permitted to stay at the police station who insisted for her custody. Her advocate also made written representation. The Office Superintendent of Swadhar Grooh at Patan had denied entry to her by letter dated 04.07.2020. 4. The Superintendent of Police, Mehsana is not in a position to remain present nor is he in a position to file affidavit because of pressing some urgency of duty.
5.We had spoken to the girl who confirmed that she was kept all along at the police station, however, she does not complain of any kind of ill treatment. She submits that for two days' Respondent boy's mother was kept with her whereas, according to the father -applicant herein, he with his wife had remained with the girl since 29.06.2020. She has shown her willingness to join her parents and the parents are also ready to take her back ensuring this Court not to marry her before she turns 18 years of age and further ensuring her formal studies or imparting of vocational training.
6.Noticing the wish and will of the prosecutrix who is a minor and who did not want to join the parents and therefore there was a need for this Court to direct her housing at Women Protection Home,Patan at the instance of Superintendent of Police, Mehsana who had made it clear that Mehsana does not have any Women Protection Home and Patan would be a better option, the same had been directed. Now as the girl is desirous Page 4 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER of joining the parents, she is being permitted to go with the parents. Let the arrangement be made for them to be dropped at their residence by the police. She shall be well looked after by the parents and her formal studies shall be completed at least up to 12thstandard and also pursue her vocational training for the purpose of taking charge of her life and becoming self- reliant.
7.Being dismayed by the fact that the order passed by this Court dated 29.06.2020 directing the corpus to be taken to the Women Protection Home, Patan has not been complied with till date and this would surely require a deeper probe. According to learned advocate Mr. Dave, corpus was kept at Women Police Station, Mehsana on 1st, 2ndand 3rdJuly and on 4thand 5thJuly she was kept at Vadnagar Police Station, and ,according to the parents of the Corpus, they were with her on 29.06.2020, she further disputed of having been provided with the new pairs of cloths and she continued to be in one pair of cloth for all the eight days ,although according to the father, he had brought her cloths from home. she has no complaint of any malnutrition, however, the fact remains that the order neither in letter nor in spirit appears to have been followed.
8.We also had inquiredfrom the Deputy Superintendent of Police Mr. Vyas who is present before us about the corpus and he stated that because of the COVID -19 test whose report would take some more time, she had kept at women police station. This, according to him, was the decision taken at the senior officers' level. He further submits that he is not aware that the corpus is unable to change her cloths even for all these eight days. The new cloths, according to him, had been brought but the father had refused them and instead chose to bring the cloths himself.
9.We would not be satisfied with some of the replies given to us today by Deputy Superintendent of Police, Mr. Vyas, on a query raised by us. There are sharp contradictions as well in the versions. Let an affidavit be filed by Superintendent of Police to let the Court know (i) as to under what circumstances the order has not been complied with in letter and spirit, (ii) as to whose decision was it to continue her at the Women Police Station and,
(iii) when was the first refusal came from the Women Protection Home, Patan And who is the administrator at Patan . It appears from the report that before 04.07.2020 she was not taken to Patan whereas, in case of another corpus in Special Criminal Application No. 2605 of 2020, hailing from Mehsana, on the very day, the Corpus was taken to Patan and kept at Patan for two Page 5 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER days and then was shifted to Palanpur.
10.We appreciate the assistance rendered by Mr. Upendra Bhatt, learned Additional Sessions Judge, Visnagar at the time of presenting Corpus through the Video Conferencing.
11.Let the affidavit be filed on or before 09.07.2020 with an advance copy to the other side."
4. The affidavit-in-reply has been filed by Mr. Gohil, Superintendent of Police, Mehsana district. He, at the outset, had stated that there was no intention much less any deliberate or willful intention to flout the order and directions of the Court. He also tendered an unconditional apology and had ensured that he shall be conscious in future. He has further stated that the corpus, the daughter of the petitioner, was not traced on various occasions and lastly when the Court directed the office of the Superintendent of Police of Mehsana to depute Officer not below the rank of DSP to investigate into the matter and also directed the Superintendent of Police, Mehsana to personally remain present by video conferencing, the police authorities successfully traced the corpus and she was produced before the Court. He himself remained present before the Court and the said corpus was not inclined to join the parents. Considering her young age, she was housed at Women Protection Home, Patan, where she was to be kept for eight weeks and the matter was posted on 25.08.2020. The non-compliance of housing the girl at Women Protection Home, Patan, according to him, was not deliberate. It is further stated on oath that, after video Page 6 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER conferencing was concluded, appropriate instructions were given to the concerned Investigating Officer, namely, Deputy Superintendent of Police of Visnagar to proceed with the investigation of CR.No.-I-A/11206062200018 registered at Satlasana police station for the offence under sections 366,363, 376 of the Indian Penal Code and under various provisions of Protection of Children from Sexual Offences Act, 2012 ("the POCSO Act" for short). It is further his say that as per the resolution issued by the learned Principal District & Sessions Judge, Mehsana on 13.05.2020, Covid- 19 test of the victim was a must before her production in front of learned Judicial Magistrate First Class. Therefore, she was taken for conducting her Covid-19 test, so that the procedure under section 164 of the Code of Criminal Procedure could be completed. She was admitted at Civil Hospital, Vadnagar and for her safety, a lady police officer was placed along with the mother of the victim corpus, who also was permitted to stay with her as wished by her and as also requested by the medical officer. The corpus was kept at Civil Hospital till 02.07.2020 and she was discharged after completion of medical test and report.
5. It is also urged that on 02.07.2020 as her test came negative, she was taken to the competent Court for recording her statement under section 164 of the Code of Criminal Procedure, during such period, she enjoyed a very good condition of health and private room with attached toilet and bathroom was given to the victim at Mahila police station, Mehsana. The parents of the corpus were also Page 7 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER permitted by the Investigating Officer to accompany her and arrangement for food of the entire family had been made by the police authority because of the Covid-19 situation. It is also submitted that five pairs of new cloths were arranged to the victim. However, the father of the petitioner denied to accept the same and brought cloths from the home on 03.06.2020 for her and nutritious break fast had been arranged for them. She was taken to learned Judicial Magistrate First Class for recording her statement under section 164 of the Code of Criminal Procedure. Thereafter, the corpus and her parents spent the night at Mahila police station on 03.07.2020. On 03.07.2020, he enquired with the Investigating Officer whether the order of the Court has been complied with and whether all the procedures were completed or not. In the evening, he was conveyed that the victim was not sent to the Women Protection Home, Patan, since there was delay caused due to medical procedure for Covid-19 test and recording of her version under section 164 of the Code of Criminal Procedure. He, in the late evening, came to know that instead of placing the corpus at Women Protection Home, Patan, she was kept in Mahila police station, Mehsana albeit in good condition along with her parents. Therefore, the Superintendent of Police, Mehsana instructed the Investigating Officer to take the victim to the Women Protection Home, Patan and on 04.07.2020 when the team reached the Women Protection Home, the entry was denied on the ground that the institute was private and did not induct minor girls in the institution. The Investigating Officer contacted the Superintendent of Page 8 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER Police, Patan and requested him to intervene. However, even at the insistence of Superintendent of Police, Patan, it was not made feasible. On 04.07.2020, the institute conveyed that they were not in a position to accept the minor. This was conveyed by the investigator to the learned Additional Public Prosecutor telephonically and requested him to change the place from Women Protection Home, Patan to Women Protection Home, Palanpur. Since it was not prudent to change the place of stay of the victim without COURT's permission and recording of the statement under section 164 of the Code of Criminal Procedure was needed to be done, She was taken to JMFC, Satlasana for recording her statement under section 164 of the Code of Criminal Procedure.
6. By the time we received this affidavit-in-reply from the Superintendent of Police, Patan, the girl had chosen to join her parents and she has given to understood to us that she is in good health and is living with her parents happily. The petitioner, since, is represented by the learned advocate for the petitioner, he has confirmed this aspect.
7. The only vital aspect that remained for us to consider in this petition is about non-compliance of the directions issued by this Court on 29.06.2020.
8. We have heard Mr. Manan Mehta, learned Additional Public Prosecutor for the respondent-State, who has urged Page 9 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER that there was not slightest intent either on the part of the Superintendent of Police, Mehsana or any of his officers in the team to flout the Court's order or to disobey it in any manner. However, for want of proper comprehension on the part of the junior officers, who were to implement the order, the order could not be complied with in its letter and spirit, which may not be viewed seriously. He has urged further that this was the very officer, who has taken keen interest in bringing the corpus and in a short period of 15 days, after his joining as Superintendent of Police, Mehsana, he has brought the corpus before the Court. He, therefore, has pleaded for and on behalf of the Superintendent of Police, Mehsana and his team that no stringent actions be taken in absence of any ill-intent.
9. Mr. Darshan Dave, learned advocate for the petitioner has urged that there were certain incorrect details, which have come on the record and the propriety demanded that she could not have been continued at the Mahila police station. It does matter as to whether she was in Mahila police station or not. He does not dispute that the parents have been with her all the time. However, according to him, the Court's order has not been complied with as was required to be implemented, to ensure that in future nothing of this sort is repeated, let certain specific guidelines be issued.
10. Taking the holistic picture of chronology of events, Page 10 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER which have been presented before us through the affidavit- in-reply by the Superintendent of Police, Mehsana, we notice that even if the test of Covid-19 virus was a must, the same could have been performed by taking the corpus straightaway to the Women Protection Home, Patan. It is quite surprising that the Women Protection Home, Patan, chose not to obey the order of the Court. However, without entering into any of those details, at this juncture, we note specifically that had she been taken to Women Protection Home, Patan on the very day, as was directed by this Court, this denial on the part of the administrator at Women Protection Home could have been noticed there and then only and that would have necessitated the Investigating Officer to take her to some other place after seeking requisite order of this Court. Instead, she was taken to Civil Hospital and even in the present scenario, the Covid-19 test is a must, there does not appear to be any justification for the Investigating Officer to house her at Mahila police station after her discharge from the hospital with the negative report of Covid-19 virus. Neither for recordance of statement under section 164 of the Code of Criminal Procedure nor for the purpose of any nature of investigation, her presence is required at Mahila Police Station. The propriety also would demand that this basic aspect could not have been overlooked by the officer at any level, much less at the level of the Dy.S.P., who was investigating into the matter as per the direction of the Superintendent of Police. The Superintendent of Police present in the video conferencing arranged at Mehsana on the day when the Page 11 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER corpus was produced, was fully aware of the details and the directions issued by this Court.
11. We see no justification on the part of the Dy.S.P to continue the corpus at the Mahila police station even if the woman police continued to be with her. Presence of the parents, of course, inspire confidence and there are no allegation of any nature fortunately, in this case which we have also ascertained from the corpus herself and her both the parents and that is the reason why we are inclined to accept the unconditional apology, noticing absence of any intent. Although while so accepting, we express our displeasure for having conducted the issue in the manner as has been done and expect that in the future, no such act shall be repeated.
12. It is also to be specifically directed that the Superintendent of Police, since is heading the entire team of police officials in the district, he shall issue the direction to all concerned police stations that at no stage and for no reason, the corpus should ever be continued to be housed at Mahila police stations or any police stations. It goes without saying that every police officer is obligated to follow the commands and directions issued by this Court scrupulously and, if any issue arises of its interpretation or comprehension of the directions, it can always contact the office of the learned Public Prosecutor or the office of the learned Government Pleader for guidance. Let the Page 12 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020 R/SCR.A/765/2020 ORDER investigations be carried out with all seriousness and can be attended to promptly and effectively.
13. The Home Department, Government of Gujarat would circulate the gist of order to all the concerned Police stations and officials so that no such repetition ever happens, even inadvertently which not only is against all kinds of propriety but is also fraught with the danger of jeopardizing seriously the interest of corpus.
14. Accordingly, this petition stands disposed of with above directions.
(MS. SONIA GOKANI, J. ) (N.V.ANJARIA, J. ) MISHRA AMIT V./sudhir Page 13 of 13 Downloaded on : Fri Jul 31 22:07:47 IST 2020