Delhi District Court
State vs . Sunita on 7 March, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Session Case No. 202/13
State Vs. Sunita
FIR No. 265/2013
Under Section 307 IPC
Police Station South Rohini
07.3.2014
ORDER:
The short issue which I propose to decide vide this order is whether the accused Sunita a widow aged about 36 years could have been arrested and detained in the Police Station in the intervening night of 14-15.9.2013 in the manner in which it has been done and the legality of the same.
Briefly, the case of the prosecution is that on 14.9.2013 at 5:19 PM an information was received at Police Station South Rohini that a lady had been stabbed at D-15/40, Sector-3, Rohini pursuant to which DD No. 36-A was recorded and SI Ravi Kumar along with W/Ct. Balkesh and Ct. Ashok reached the spot where one Smt. Neelam met them and she produced the accused Sunita. The police came to know that the victim Kamaljeet Kaur has been removed to hospital by neighbour Rita through PCR Van. Statement of victim Kamaljeet Kaur was recorded wherein she informed the police that Sunita was working as domestic help at her house and on 14.9.2013 she came to her house and asked her for employment. Smt. Kamaljeet Kaur had alleged that thereafter Sunita attacked on her neck with a darant with such intention or knowledge and under such circumstances that if by that act Sunita caused death of Kamaljeet Kaur, she would be guilty of murder. Pursuant to the same investigations were conducted and after St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 1 of 12 completion of investigations charge sheet was filed against the accused Sunita under Section 307 Indian Penal Code.
The accused Sunita is a helpless widow aged hardly 36 years is lodged in jail and when she first appeared before the Court it was observed that she was not in a position to engage a private counsel to vindicate her innocence or defend her constitutional or legal rights or to protect herself against torture, ill-treatment and harassment at the hands of the custodians of law. It was difficult rather impossible for the family members of the accused i.e. her aged ailing mother and her brother who are residing separately to have obtained proper legal advise for her and hence she was immediately provided with the assistance of DLSA Counsel. When her case came up for recording of evidence, Ms. Neelam Singh the DLSA Counsel brought it to the notice of this court that during her interaction and legal interview with the accused Sunita it came to her notice that certain officers of Police Station south Rohini had misbehaved and molested the accused when after her arrest she was detained in the Police Station during the intervening night of 14- 15.9.2013. The DLSA counsel also informed that during the Court appearance the accused Sunita had conveyed certain facts to her verbally as well as through a communication which she had got written from somebody in the jail which communication has been placed on record by her. Pursuant to the same, this Court personally interacted with Sunita and recorded her statement in camera proceedings in vernacular as a Court Witness. Her mother Smt. Rattan Devi was also called to the Court and examined as a Court Witness and she confirmed that neither she nor any person from her family were permitted to meet Sunita or stay in the Police Station during the intervening night when Sunita was detained. The perusal of the statement of Sunita shows that St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 2 of 12 serious allegations have been made by her against the IO SI Ravi Kumar and three to four police officers of molestation and of making sexual advances on her. There is no reason for me to believe that the Ld. DLSA Counsel would at her level invent or fabricate such allegations or tutor the accused Sunita in this regard. Rather, it was pursuant to the written communication which accused had given to the Ld. DLSA Counsel after the counsel had interacted her that this fact was disclosed which the Ld. DLSA Counsel immediately brought to the notice of the Court on which the statement of the accused was recorded.
I may observe that the issue in hand relates to safety and security of the woman prisoner in the police lock-up vis-a-vis the protection given to her against torture and ill-treatment.
The Legislature in its wisdom added sub-section (4) to Section 46 of the Code by Act 25 of 2005 (w.e.f. 23-6-2006), to prohibit arrest of a woman after sunset and before sunrise except in unavoidable circumstances. The provisions of sub-section (4) of Section 46 of the Code reads thus:-
46. Arrest how made-
(1)... to (3)...
(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.
From a bare perusal of the above provisions of sub-section (4) of Section 46 of the Code, it is crystal clear that, the said provision mandates that no woman shall be arrested after sunset St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 3 of 12 and before sunrise save in exceptional circumstances, without the prior permission of the Judicial Magistrate, First Class, in whose local jurisdiction the offence is committed or the arrest is to be made. Upon careful perusal of the aforesaid provision, it is abundantly clear that, save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise and where such exceptional circumstances existed, a Lady Police Officer shall, by making a written report, obtain prior permission of the Judicial Magistrate, First Class. Therefore, the requirement of the provisions of sub-section (4) of Section 46 of the said Code is two fold. If the Police Officer wants to arrest the woman after sunset and before sunrise, there must exist exceptional circumstances for such arrest. In cases wherein such exceptional circumstances do exist, a Lady Police Officer shall make a written report and obtain prior permission of the Judicial Magistrate, First Class in whose jurisdiction the offence is committed or the arrest is to be made. This sub Section (4) has been added to Section 46 and has come into force on 23.6.2006 which virtually prohibits arrest of a woman after sunset and before sunrise except in unavoidable circumstances. The exceptional circumstances so contemplated herein above cannot be put in a straight jacket compartment and depends upon facts of each individual case.
The Hon'ble Apex Court while dealing with the arrest of a person accused of cognizable offence in the case of Joginder Kumar's case reported in 1994(4) SCC 460 observed that the arrest of a person becomes eminent only in certain circumstances like when the allegations involves a grave offence like murder, dacoity, robbery, rape etc. and it is necessary to arrest the suspect to prevent him from escaping or evading the process of law; or the suspect is given to St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 4 of 12 violent behaviour and is likely to commit further offences; or the suspect requires to be prevented from destroying evidence or interfering with witnesses or warning other suspects who have not yet been arrested; or the suspect is a habitual offender who unless arrested, is likely to commit similar or further offences. In case of a woman there has to be an exception circumstance to justify such an arrest.
The onus as imposed upon the State by Section 46 (4) Cr.P.C. is three fold. First is upon the lady officer who joins the investigations and is the arresting officer. It is she who is required to make a written report before the Judicial Magistrate and place before the Ld. MM the entire material showing the existence of the exceptional circumstances so as to justify the arrest of suspect after sunset. In the present case the alleged report which has been termed as 'Application under Section 46(4) Cr.P.C.' has been allegedly made by W/SI Khushboo but the perusal of the same shows that it was placed before the Duty Magistrate at his residence at 10:00 PM by the SHO Inspector Naresh Malik a male officer (not by her) and it is not disputed even by W/SI Khushboo that she was not even present before the Ld. MM when this application was presented to him or taken up for hearing.
Second the law casts an obligation on the Judicial Magistrate to apply his mind to the material placed before him on the basis of which he permits the arrest of the lady accused after sunset. In the present case it is apparent that only this application under Section 46 (4) Cr.P.C. was placed before the Ld. MM without any additional material and hence it is only on the basis of what was mentioned in this report which was termed as 'Application under Section 46(4) Cr.P.C.' that the Ld. MM was asked to grant the permission. In the said St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 5 of 12 application it was only mentioned that after the apprehension of the accused she was examined and there was sufficient evidence against her and the allegations being serious in nature, her arrest cannot be deferred at the initial stage of investigations. Here, I may observe that the fact that the alleged weapon of offence had already been recovered from the spot of incident and no recovery was to be effected and also the fact that the accused Sunita was a resident of the same area with no previous criminal history and being known to the alleged complainant previously, were material aspects which were never placed before the Ld. Magistrate. The order of the Ld. MM clearly reflects that only the request made by IO was placed before him and not the complete details or even the investigation file.
The Third onus is also upon the Judicial Magistrate to pass a specific order in writing permitting the arrest of the lady accused after satisfying himself to the material placed before him. From the evidence adduced before me it is revealed that soon after the police came to the spot the accused Sunita who was also injured had made no attempts to resist or run away rather she was extremely calm and quite rather in a depressive state and cooperated with the investigations. The Ld. MM while disposing off this application presented to him by the SHO South Rohini Inspector Naresh Malik merely observed that the allegations made against the accused i.e. of offence under Section 307 IPC were serious. The permission so granted to arrest the accused was not an absolute permission as contemplated under law and I quote the relevant portion of the order as under:
".... IO/W SI Khushboo is allowed to arrest the accused Sunita if required.....".
St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 6 of 12 The order passed by the Ld. MM on the face of it does not stand the scrutiny of law since under no circumstances can the Ld. MM abdicate the responsibility entrusted upon him by the Statute which he has chosen to now delegate to the Investigating Officer while observing that the IO/ WSI Khushboo was allowed to arrest the accused Sunita if required. The satisfaction as contemplated under law has to be of the Ld. MM and not of the Investigating Officer. Legally the permission so granted by the Ld. MM is not as per the mandate of Section 46 (4) Cr.P.C. because the Ld. MM did not make an objective assessment of the necessity of arrest of the lady accused and committed a serious illegality by delegating this discretion to the IO W/SI Khushboo, something which was his sole prerogative.
Coming now to the facts of the case. Both W/SI Khushboo and L/ Ct. Balkesh were relieved from the spot itself after the arrest of the accused Sunita at 11:00 PM leaving her at the mercy of male officers who then brought her to the Police Station with none of these lady officers accompanying her. The requirement of law that female officers have to be associated in the arrest of a female accused is not a mere ritual. Till such time the female accused is produced before the Ld. Illaka Magistrate after her arrest it is mandatory for the female officers to remain with her which has not happened in the present case. In her statement the accused Sunita has elaborated upon the manner in which she was subjected to extreme humiliation by male police officers in the police station where sexually explicit remarks were made, she was inappropriately touched, molested and pressurized. The statement which she made to this Court in this regard is very clear and discloses commission of cognizable offences.
St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 7 of 12 When this aspect was brought to the notice of the senior officer i.e. concerned ACP Sh. Shiv Dayal and who when asked by the Court to inform why the accused Sunita soon after her arrest was not immediately produced before the Duty Magistrate when she was apparently not even required for any further investigations, ACP Sh. Shiv Dayal very arrogantly retorted and I quote "....there is nothing in the Indian law which prevents a lady from being detained in the Police Station after her arrest during the night hours...". This remark of ACP Sh. Shiv Dayal has left this Court shocked for it reflects the ignorance and insensitive mind-set of the officials who are at the helm of affairs in the Police Station of the area. Is this how the Delhi Police treats the women of this Country? While on the one hand the same Delhi Police is taking pride in their own officer i.e. ACP Khirki Extension for taking on the then Law Minister of Delhi Sh. Somnath Bharti and refusing to act against certain women suspects (who were foreigners) quoting the prohibition contained in the Indian Law in this regard, whereas on the other hand we have another officer of the same rank i.e. ACP Sh. Shiv Dayal who before this Court has taken a stubborn stand to the contrary declaring that the statutory law of this Country does not prohibit the accused Sunita from being kept in the Police Station throughout the night which is despite the fact that there is no explanation forthcoming justifying such an exceptional action.
From the material which has come on record and which I have carefully perused, the questions which arise are many fold:-
➢ Where was the exceptional necessity and where was the justification for this arrest of accused Sunita when the entire inquiry had already been completed and the case property had been recovered?
St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 8 of 12 ➢ Where was the requirement of detaining the accused Sunita a young destitute widow in the Police Station when she had no history of crime or violence and there was no possibility of her absconding as admitted by their own officers?
➢ Why the entire record already prepared by the Investigating officer by that time including the statement of the complainant, FIR, seizure memos, address records of the accused etc. were not placed before the Ld. MM along with report to enable him to make an objective assessment regarding the necessity of detaining the accused Sunita?
➢ Why soon after her arrest both W/SI Khushboo and L/Ct.
Balkesh were relieved from the spot leaving accused Sunita to the mercy of the male officers?
➢ Why in the hospital Sunita was first subjected to a medical examination by a male medical practitioner i.e. Dr. Kumar Akhilesh at 12:22 AM (contrary to the mandate of Section 53 of Cr.P.C.) and sent for Gynecological examination thereafter when there were no such allegations warranting such examination? ➢ Why Sunita was produced in the hospital by male officers (in the MLC the name of W/Ct. Balkesh has been mentioned but in the Court during her deposition W/Ct. Balkesh has denied having taken Sunita to hospital for medical examination and has confirmed that she left for her residence from the spot itself, lending credibility to the allegations made by accused Sunita)? ➢ Why soon after her arrest Sunita was not produced before the Duty Magistrate for permission to detain her at a suitable place or for remanding her to Rahdari during night hours?
St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 9 of 12 ➢ Why the family of the accused Sunita including her mother and brother were not permitted to meet her and to stay with her in the Police Station over night?
The stand of the ACP Sh. Shiv Dayal is reflective of gross criminal neglect and indifference to the acts of illegalities committed by his subordinates. He is least interested in rectification of these wrongs committed by his own officers and his calculated attempt is rather to over-reach the law. The justification to hold this young widow in the Police Station during the night a place where there own lady police officers are reluctant to stay is not forthcoming and this act of keeping the lady accused in the Police Station during the night hours without information to the Ld. MM, raises many eye-brows. The allegations made by the accused against the police officers are highly incriminating and disclose the commission of cognizable offence. The acts so committed are Criminal in nature is inexcusable and no leniency can be shown particularly in view of the arrogant display of adamancy by the ACP Sh. Shiv Dayal to act against his own and in going out of his way to defend the wrongs committed in a Police Station right under his nose. A similar illegality has also been noticed by this court in another FIR bearing No.191/2013 of the same Police Station which is being dealt with separately. This court is hence compelled to step-in and I hereby direct that
1. A copy of this order along with the statement of the accused Sunita be placed before the Ld. District Judge (North-West) for placing before him and highlighting the gross non compliance of the provisions of law and also for forwarding the same to the CMM concerned for appropriate action in accordance with law against the offending officials of Police Station South Rohini.
St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 10 of 12
2. A copy of this order along with the statement of the accused Sunita be placed before the Commissioner of Police with directions to initiate action in accordance with law both legal and departmental against the erring officers. It is clarified that the appropriate departmental action should be conducted by an officer not below the rank of Additional Commissioner of Police, under regular intimation to this Court.
3. The Commissioner of Police, Delhi shall also step-in to immediately issue instructions not later than two weeks from today to all concerned to follow the mandate of sub-section (4) of Section 46 of the Code of Criminal Procedure, 1973, as and when they want to arrest any woman accused of any offence after sunset and before sunrise. Needless to say, that all concerned officials should be made aware that such arrest is permissible only in unavoidable circumstance, that too after strict compliance of the provisions of Sub-section (4) of Section 46 of the Code of Criminal Procedure, 1973 in particular and other provisions of the Code of Criminal Procedure, 1973 in general which compliance should not be taken as a mere formality or a ritual, the violation of the same being punishable under law.
4. In order to prevent the recurrence of any such incident in future it is desirable that the Commissioner of Police should also issue instructions to all concerned to ensure that in case of arrest of a woman after sunset after taking due permission from the Illaka Magistrate, she be immediately produced before the concerned Duty MM for further directions regarding her detention. In case of any eventuality if her detention in the Police Station without St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 11 of 12 her production before the Duty MM becomes inevitable, then care should be taken to ensure the compliance of the directions issued by the Hon'ble Apex Court in the case of Sheela Barse Vs. State of Maharastra reported in 1983 AIR 378: 1983 SCR (2) 337. Also, in the given circumstances when the lady accused is not produced before the Duty MM after her arrest, either the family members of the female accused or some respectable of the area or representative of an NGO be called to remain present in the Police Station till such time the lady accused is detained in the Police Station during the night hours.
With these observations the issue in question is disposed off. I place on record the appreciation for the sensitivity and concern exhibited by Ms. Neelam Singh the Ld. DLSA counsel and the assistance so provided.
Announced in the open court (Dr. Kamini Lau) Dated: 7.3.2014 ASJ-II(NW)/ ROHINI St. Vs. Sunita, FIR No. 265/13, PS South Rohini Page No. 12 of 12