Gujarat High Court
Minesh Ganabhai Bhunetar vs State Of Gujarat on 11 April, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/17468/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17468 of 2018
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MINESH GANABHAI BHUNETAR
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR NITIN T GANDHI(5620) for the Applicant(s) No. 1
ROHANKUMAR M AMIN(8851) for the Applicant(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR P B KHAMBHOLJA(5730) for the Respondent(s) No. 2
MR HARDIK SONI, ADDL. PUBLIC PROSECUTOR(2) for the Respondent(s)
No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 11/04/2019
ORAL ORDER
1. This Court on 01.04.2019 passed the following order:-
"1. This is a petition by the petitioner for quashment of the FIR filed against him, who was serving in LCB at the time of incident in question.
2. It is a case of custodial rape, registered with Santrampur Police Station, Mahisagar, being I- C.R. No. 78/2018, Dated : 18.08.2018, for the offence punishable under Sections 376(D), 323 and 114 of the Indian Penal Code, 1860.
3. Admittedly, the petitioner has not approached any Court for the protection of his personal liberty and has approached this Court and the matter is under investigation. The victim-girl, herself, is facing the serious charges of Section 302 read with Section 201 of the IPC, where, the emphasis is on the part of her being involved in destroying Page 1 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019 R/CR.MA/17468/2018 ORDER the evidence.
4. Mr. N.V. Patel, DSP, who is investigating the matter, is present before this Court.
5. During the course of hearing, there was a specific query put by this Court to the learned Additional Public Prosecutor with regard to the availability of the CCTV cameras at Santrampur Police Station. It is to be noted that the installation of CCTV camera in every police station is must. The Apex Court in D.K. BASU VS. STATE OF WEST BENGAL', AIR 1997 SC 610, has made it compulsory to install CCTV cameraa in every police station.
6. This Court in Special Criminal Application No. 10707 of 2018, while conducting the said matter in the offence registered with Bopal Police Station, noticed the absence of CCTV camera at the offices of Local Crime Branch and the Special Operations Group and therefore, certain directions have been issued to the Home Department, which need not be reiterated here.
7. On instructions, learned Additional Public Prosecutor has submitted that due to technical snag, the CCTV cameras installed at Santrampur Police Station, at the time of commission of the alleged offence of rape on the victim-girl, were not functioning. He also added in the same breath that the complaint being at a belated stage, even if, the cameras were working, they would not have helped, as the data would be available only for the period of one month.
8. Be that as it may, this case brings once again to the notice of this Court that for the protection of one and all and so as to check the custodial offences against the citizens, transparency through the electronic medium has been contemplated by the Courts. It is not important, at this stage, to consider whether the FIR had been lodged Page 2 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019 R/CR.MA/17468/2018 ORDER belatedly. The fact remains that had it been done well within time and even if the IO would have inquired into the matter, attempting to get the electronic evidence, there would not have been any possibility with these cameras not working. Mere installation of CCTV cameras is not sufficient, but, their being in working condtion for all 24 hours round the year is inevitable for which regular check-up and maintenance, periodical inspection of the same would also be sine qua non.
9. Let the report be placed before this Court as to when has the last such inspection made of the CCTV cameras installed at Santrampur Police Station and also at various police stations in the State at different police stations and what is the modus for ensuring its workability and who has been given the contract for maintenance and what are the modalities worked out for the higher authorities to know on periodical basis, the functioning of these instruments, which is a medium utmost vital to avail unpolluted scientific evidence.
10. Let the report be submitted, by way of an affidavit, by the officer not below the rank of Chief Secretary, Home Department, by 11TH APRIL, 2019.
11. So far as the further hearing is concerned, the same shall be taken-up on 4TH APRIL, 2019. Further, the IO shall ensure due protection of the victim-girl. So far as the investigation in connection with I-C.R. No. 53/2018 registered with Santrampur Police Station shall CONTINUE without being influenced by the subsequent events."
2. Pursuant to the detailed directions issued by this Court, on the next date i.e. on 09.04.2019, the petitioner had chosen to withdraw the petition. However, considering the fact that vital issue has arisen before Page 3 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019 R/CR.MA/17468/2018 ORDER the Court with regard to the installation of CCTV cameras and its working and maintenance all throughout the year, such permission was not granted.
3. Today, the affidavit-in-reply on behalf of the respondent no.1 is filed by the Additional Chief Secretary, Home Department, stating therein that they have in all 619 Police Stations in entire State of Gujarat and the work of installation of CCTV cameras is completed. The work order has issued to M/s Godrej and Boyce Mfg.Co.Ltd and M/s Wipro Infotech Ltd. on 02.07.2015. They have divided all the police stations into three categories:- (I) Small sized Police Station (ii) Mid sized Police Station and (iii) Big sized Police Station.
4. It is pointed out to the Court that for different size of the Police Stations the CCTV cameras installed vary in numbers. The Santaram Police Station is a Mid sized Police Station where 10 CCTV camera are installed however, at the time of incident, total seven number of cameras were working and three of them were not working due to technical fault.
5. The relevant details given by the Additional Chief Secretary in his affidavit in reply are as under:-
"4. Santrampura Police Station is mid size station so, 10 CCTV Cameras were installed. At the said time of incident, out of above mentioned cameras 7 other CCTV Cameras were perfectly Page 4 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019 R/CR.MA/17468/2018 ORDER working and 3 cameras had a technical fault. 3 cameras details are mentioned herein below:-
(i)The PTZ - Pan Tilt Zoom - The said camera was installed at the entrance of the police station compound to capture front vision (ii) The cameras were installed on the same pole at the entrance of the compound of the Police Station but facing inside. (iii) Third camera which was not working on the date of incident was installed on the table over the Police Station Officer (PSO).
Photographs which reflect the position of the 3 cameras not working are annexed herewith and marked as Annexure - R-3.
5. The deponent humbly submits that the installation as well as maintenance work was allotted to the above mentioned Godhrej and Boyce Mfg. Co. Ltd. and Wipro Infotech Ltd. on 02.07.2015. As per the clause of the work order, both the companies are duty bound to resolve the complaints within 24 hours. In most of the instances, the complaint was resolved as early as possible but even then there were instances, where the Additional Director General (Technical service and SCRB) had issued show-cause notice on the both the companies and procedure had been initiated by the Home Department to impose the penalty as per the clause of the SLA (Service Level Agreement). On 15.12.2018, the Additional Director General had inspected the Santrampur Police Station, on that day except PTZ camera, all others cameras were functioning in just and proper manner. PTZ camera was taken by the company for the repairing purpose. The copy of the report dated 15.12.2018 is annexed hereto and marked as Annexure - R-4.
6. The deponent humbly submits that the Additional Director General had formed mechanism to look after proper maintenance and monitoring of the CCTV project and for the said purpose, a team was framed including one Dy.S.P. (Wireless), PSI(Wireless), Nodal Officer of the Page 5 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019 R/CR.MA/17468/2018 ORDER respective district, Service Manager of the maintaining company and service engineer. Thus, special team visits all the police stations all over the Gujarat, and prepare reports which is ultimately forwarded to the Additional DGP for the better implementation of the project.
7. The deponent humbly submits that the 5 years contract with the individual company will start from the FAT (Final Acceptance Test). In the case of Santrampur Police Station, the date of FAT is 18.03.2017. Hence, there is a maintenance contract for the Santrampur Police Station which will continue up to 17.03.2022 with Godhrej and Boyce Mfg. Co. Ltd.
8. The deponent humbly submits that the recording data of the CCTV Cameras is 30 days. But in case the Police Officer wants to preserve the footage of any camera or of all cameras then, the same can be preserved by simple computer commands, otherwise any recorded footage will be automatically deleted / overwritten after a period of 30 days. Hence, the situation occurred in this case as Respondent No. 2 (Katara Bhagavatiben Arjanbhai) has filed FIR after 70 days.
Government has noticed that in most of the cases petition is filed after some time of incident and upon asking for CCTV footage, it cannot be retrieve as it gets automatically deleted after 30 days. Government has already planned to increase storage capacity of this CCTV camera and to hold recording up to 3 to 6 months extend. Survey has already been carried out by Gujarat informatics Limited which is under consideration with Government. The deponent humbly submits that except PTZ, all other cameras which are specifically installed within the police station are also having a facility to record even during the night. There is also provision to record the audio, specifically for the camera installed above Police Sub Officer (PSO) as well as within the lockup room.
Page 6 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019R/CR.MA/17468/2018 ORDER
9. The deponent humbly submits that as per the earlier system for the sanctioning of the maintenance expense, the file requires to move up to the Home Department. For proper implementation of CCTV Project, the Home Department by way of notification dated 13.11.2018 had delegated the power of Rs.1,00,000/- to other CP / SP for the purpose for maintenance of CCTV. Thus for expense up to Rs.1,00,000/-, there was no necessity to forward proposal before the home department and it can be effectively implemented from the respective districts. The copy of the notification dated 13.11.2018 is annexed herewith and marked as Annexure - R-5. Further to state that, all Police Stations are sending Daily Report of Police Station CCTV system to ADGP Technical Services and then Technical Services evaluate that reports, based on reports of faults pending since long technical team visits locations and try to resolves issues. Additional Director General of Police- Technical Services office will also have central work shop for this purpose.
In addition Government is also planning have remote monitoring system at SP/CP offices so that unit heads can also monitor that system is working properly."
6. The tentative layout for camera position also has been produced by the learned APP from the file of police station CCTV project. It is urged that the maintenance is for five years (1 year OEM warranty and 4 years comprehensive maintenance) which includes all spare parts support of all hardware, software, equipments, accessories, electrical wiring, software etc. Page 7 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019 R/CR.MA/17468/2018 ORDER
7. It is fairly submitted by the learned APP on instruction that the difficulty at the remote police station is not of installation of CCTV cameras but making it operational or the disruption of the continuity on account of nonavailability of Internet facility. As the storage is automatically deleted after 30 days, however, attempts are on to ensure that the storage capacity of the camera is also enhanced, whereby recording up to 3 to 6 months can be viewed. It is further urged that the Home Department by way of notification dated 13.11.2018 has delegated the power of Rs. 1,00,000/- to all the CP/SP for the purpose of maintenance of CCTV cameras.
8. All Police Stations are sending the daily report of CCTV system to ADGP Technical Services and then technical services evaluate the reports, based on reports of faults pending since long, technical team visits locations and try to resolve the issues. The Additional Director General of Police - Technical Services also has conducted the central work shop for this purpose.
9. In wake of these details, the order passed by this Court rendered in Special Criminal Application No. 10707 of 2018 is concerned, where this Court had directed thus:-
"10. This is a case of brutal torture in the police custody. Investigations of course is going on.
Page 8 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019R/CR.MA/17468/2018 ORDER Considering the seriousness of the matter, as discussed above, it would be in the fitness of things to transfer it to CID (Crime). Other matter which is pending with Bhagodara Police Station shall also need to be looked into by the very agency, so as to reach to the truth of the matter. Some of the details which get culled out from the papers of investigation need not be necessary for this Court to divulge and dilate, considering the sensitive stage at which the investigation is pending as it is inevitable and expedient to continue further investigation.
11. As a parting note, it is being observed that it has come to the notice of this Court that SOG/LCB and the Local Intelligence Branch, since do not have station diaries, they are not technically being counted as police stations and therefore, they do not have CCTV as otherwise all police stations are required to have as per the law. In absence of CCTV installment in its place, the Court would not be in a position to direct the Investigating Agency to gather the details in relation to the alleged crime against victim in post 14:00 p.m. hours of 14th October, 2018 as no electronic evidence would be available. Let this not be the route of escape from the mandate of law.
12. The Director General of Police in consultation with the Home Department shall do the needful in this regard and follow the law at the earliest."
10. It is submitted on instructions by learned APP that the said order has been recently received by the Home Department and appropriate steps shall be taken at the earliest.
11. Bearing in mind the fact that in the instant case the young girl who Page 9 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019 R/CR.MA/17468/2018 ORDER is alleged of committing offence under Section 201 of Code, when was taken to the Police Station has alleged of custodial rape, the CCTV footage would have been of extreme importance. Due to certain technical defaults, three cameras were not working as stated in the affidavit. This Court notices that there is no remote monitoring system in place. It is only on random inspection of these cameras that sometimes the higher officials become alive to the issue which would leave this important system in the hands of the police officer of concerned police station. Of course as stated before this Court, the daily reports are being called for from the police station by ADGP Technical Services. Annexure-R-4 is sought to be relied upon where the date of complaint for nonworking of PTZ camera is 18.08.2017 and the report generated on 15.12.2018, still shows that the said camera is not repaired. Respondent - complainant was arrested on 29.05.2018 at Santarampur Police Station and she complained of alleged rape on 10.08.2018 and thus, these cameras continued to be faulty.
12. It is thus observed that two cameras installed outside, in the compound and one in the PSO chamber were not functioning. Even if there would have been a complaint without any delay, then also, this technical proof would be missing of course, there were total four cameras working, these does not appear to be total coverage of entire area of Page 10 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019 R/CR.MA/17468/2018 ORDER Police Station.
13. Resolution of the Home Department of the State of Gujarat dated 13.11.2018 as mentioned above empowers and describes the local police station to get repaired LED, UPS, Switch, Graphic Card, IR, UPS Battery, Pole and Cable if the expense is less than 1,000/- per incident and if the expense is is from 1,000/- to 10,000/- (Rupees Ten Thousand Only) with the permission of Police Committee or Superintendent of Police, repair would be permissible. This delegation is quite welcoming and yet, in absence of remote monitoring by CP/SP on any other higher officials, pending complaints are not attended promptly or without any further delay.
14. It is unfortunate that pursuant to the directions of the Courts, for the protection of common man essentially to prevent any custodial violation, crores of rupees have been spent by the exchequer and yet, due to lack of proper implementation and perfunctory manner of monitoring has led to the pendency of the complaint for a long time.
15. It is expected that remote monitoring system as has been contemplated for the unit shall be initiated without further loss of time. It is further expected that at the end of the ADGP Technical Services, evaluation of Report by Technical Services shall be on daily basis which Page 11 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019 R/CR.MA/17468/2018 ORDER not only shall strengthen CCTV system, but shall also preclude/prevent vital evidence in custodial crimes to be lost.
16. Let the matter to appear on 02.05.2019. Learned APP shall also let this Court known by then progress in implementation of remote monitoring of CCTV system by CP/SP as unit heads and steps if any taken for SOG/Crime Branch to be covered under the CCTV System.
(SONIA GOKANI, J) Bhoomi Page 12 of 12 Downloaded on : Sun Jun 30 20:16:43 IST 2019