"The news item published in the Business and Financial News dated 23.01.2014
relating to the gang-rape of a 20 year old woman of Subalpur Village, P.S.
Labpur, District Birbhum, State of West Bengal on the intervening night of
20/21.01.2014 on the orders of community panchayat as punishment for having
relationship with a man from a different community, by order dated 24.01.2014,
took suo motu action and directed the District Judge, Birbhum District,
West Bengal to inspect the place of occurrence and submit a report to this
Court within a period of one week from that date"
IN THE
SUPREME COURT OF INDIA
CRIMINAL
ORIGINAL JURISDICTION
SUO
MOTU WRIT PETITION (CRIMINAL) NO. 24 OF 2014
In Re:
Indian Woman says gang-raped on orders of
Village
Court published in Business & Financial News
dated
23.01.2014
J U D G M E N T
P.Sathasivam, CJI.
1) This Court, based
on the news item published in the Business and Financial News dated 23.01.2014
relating to the gang-rape of a 20 year old woman of Subalpur Village, P.S.
Labpur, District Birbhum, State of West Bengal on the intervening night of
20/21.01.2014 on the orders of community panchayat as punishment for having
relationship with a man from a different community, by order dated 24.01.2014,took suo motu action and directed the District Judge, Birbhum District,
West Bengal to inspect the place of occurrence and submit a report to this
Court within a period of one week from that date.
2) Pursuant to the
direction dated 24.01.2014,the District Judge, Birbhum District, West Bengal
along with the Chief Judicial Magistrate inspected the place in question and submitted a Report to
this Court. However, this Court, on 31.01.2014, after noticing that there was
no information in the Report as to the steps taken by the police against the persons concerned,
directed the Chief Secretary, West Bengal to submit a detailed report in this
regard within a period of two weeks. On the same day, Mr. Sidharth Luthra, learned
Additional Solicitor General was requested to assist the Court as amicus in
the matter.
3) Pursuant to the
aforesaid direction, the Chief Secretary submitted a detailed report dated
10.02.2014 and the copies of the same were provided to the parties. On
14.02.2014, this Court directed the State to place on record the First Information
Report (FIR), Case Diaries, Result of the investigation/Police Report under
Section 173 of the Code of Criminal Procedure, 1973 (in short ‘the Code’),statements recorded under Section 161 of the Code, Forensic Opinion,Report of
vaginal swab/other medical tests etc.,conducted on the victim on the next date
of hearing.
4) After having
gathered all the requisite material, on 13.03.2014, we heard learned amicus as
well as Mr. Anip Sachthey, learned counsel for the State of West Bengal extensively and
reserved the matter.
Discussion:
5) Mr. Sidharth
Luthra, learned amicus having perused and scrutinized all the materials
on record in his submissions had highlighted three aspects viz. (i) issues
concerning the investigation; (ii)
prevention of recurring of such crimes; and (iii) Victim compensation; and
invited this Court to consider the same.
Issues concerning the
investigation:
6) Certain relevant
issues pertaining to investigation were raised by learned amicus.
Primarily, Mr. Luthra stated that although the FIR has been scribed by one
Anirban Mondal, a resident of Labpur, Birbhum District, West Bengal, there is
no basis as to how Anirban Mondal came to the Police Station and there is also
no justification for his presence there.Further, he stressed
on the point that Section 154 of the Code requires such FIR to be recorded by a
woman police officer or a woman officer and, in addition, as per the latest amendment dated
03.02.2013, a woman officer should record the statements under Section 161 of
the Code. While highlighting the relevant provisions, he also submitted that there
was no occasion for Deputy Superintendent of Police to re-record the statements
on 26.01.2014, 27.01.2014 and 29.01.2014 and that too in gist which would lead
to possible contradictions being derived during cross-examinations. He also
drew our attention to the statement of the victim under Section 164 of the
Code. He pointed out that mobile details have not been obtained. He also
brought to our notice that if the Salishi (meeting)
is relatable to a village, then the presence of persons of neighbouring
villages i.e., Bikramur and Rajarampur is not explained. Moreover, he submitted
that there is variance in the version of the FIR and the Report of the Judicial
Officer as to the holding of the meeting.(Salishi) on the point whether it was
held in the night of 20.01.2014 as per the FIR or the next morning as per the Judicial
Officer’s report, which is one of the pertinent issues to be looked into. He
also submitted that the offence of extortion under Section 385 of the Indian
Penal Code, 1860 (in short ‘the IPC’) and related offences have not been invoked.
Similarly, offence of criminal intimidation under Section 506 IPC and grievous
hurt under Section 325 IPC have not been invoked. Furthermore, Sections 354A
and 354B ought to have been considered by the investigating agency. He further
pointed out the discrepancy in the name of accused Ram Soren mentioned in the
FIR and in the Report of the Judicial Officer which refers to Bhayek Soren which
needs to be explained. He also submitted that the electronic documents (e-mail)
need to be duly certified under Section 65A of the Indian Evidence Act, 1872.
Finally, he pointed out that the aspect as to whether there was a larger conspiracy must also
be seen.
7) Mr. Anip Sachthey,
learned counsel for the State assured this Court that the deficiency, if any,
in the investigation, as suggested by learned amicus, would belooked into and
rectified. The above statement is herebyrecorded.
Prevention of
recurring of such crimes:
8) 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 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 sub-Section (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 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 twenty-four 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.” 9) The
courts and the police officialss 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, the recurrence of such crimes has been
taken note of by this Court in few instances and seriously condemned in the
ensuing manner.
10) 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, inter-caste 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 inter-caste 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 inter-religious marriage
the maximum they can do is that they can cut-off 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
inter-religious 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 inter-caste or inter-religious 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 inter-caste or inter-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.”
11) 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 institutionalized 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.
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 charge-sheet 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 indirectly accountable in this
connection.”
12) 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 inter-religious 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 Sub-Divisional / 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 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,
non-bailable and non-compoundable.
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.”
13) It is further
pertinent to mention that the issue relating to the role of Khap Panchayats is
pending before this Court inShakti Vahini vs. Union of
India and Others in W.P. (C) No. 231 of 2010.
14) 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.15) 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.”
16) As a long-term
measure to curb such crimes, a larger societal change is required via education
and awareness. Government will have to formulate and implement policies in order
to uplift the socio-economic 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:
17) 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.
18) 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 ex-gratia relief is
not arbitrary or unconstitutional. It was held that the quantum may depend
on facts of each
case.
19) 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
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.”
20) 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 lacsas 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.
21) 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.
22) 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. Mr. Anip Sachthey, learned counsel for
the State submitted a report by Mr. Sanjay Mitra, Chief Secretary, dated
11.03.2014 on the rehabilitation measures rendered to the victim. The report is
as follows:-
“GOVERNMENT OF WEST
BENGAL
HOME DEPARTMENT
Report on the
Rehabilitation Measures
Reference: Suo Motu
Writ Petition No. 24 of 2014 Subject: PS Labpur, District Birbhum, West Bengal
Case No. 14/2014 dated 22.01.2014 under section 376D/341/506 IPC.
In compliance with
the order passed by the Hon’ble Supreme Court during the hearing of the
aforesaid case on 4th March, 2014, the undersigned has reviewed the progress of
rehabilitation measures taken by the State Government agencies. The progress in
the matter is placed hereunder for kind perusal.
1. A Government Order
has been issued sanctioning an amount of
Rs.50,000/- to the victim under the Victim Compensation Scheme of the State
Government. It is assured that the amount will be drawn and disbursed to the
victim within a week.
2. Adequate legal aid
has been provided to the victim.
3. ‘Patta’ in respect
of allotment of a plot of land under ‘Nijo Griha Nijo Bhumi Scheme’ of the
State Government has been issued in favour of the mother of the victim.
4. Construction of
residential house out of the fund under the scheme ‘Amar Thikana’ in favour of
the mother of victim has been completed.
5. Widow pension for
the months of January, February and March, 2014 has been disbursed to the mother
of the victim.
6. Installation of a
tube well near the residential house of the mother of the victim has been
completed.
7. Construction of
sanitary latrine under TSC Fund has been completed.
8. The victim has
been enrolled under the Social Security Scheme for Construction Worker.
9. Antyodaya Anna
Yojna Card has been issued in favour of the victim and her mother.
10. Relief and
Government relief articles have been provided to the victim and her family.
The State Government
has taken all possible administrative action to provide necessary assistance to
the victim which would help her in rehabilitation and
reintegration.
(Sanjay Mitra)
Chief Secretary”
23) The report of the
Chief Secretary indicates the steps taken by the State Government including the
compensation awarded. Nevertheless, considering the facts and circumstances of
this case, we are of the view that the victim should be given a compensation of
at least Rs. 5 lakhs for rehabilitation by the State. We, accordingly, direct
the Respondent No. 1 (State of West Bengal through Chief Secretary) to make a
payment of Rs. 5 lakhs, in addition to the already sanctioned amount of Rs.
50,000, within one month from today. Besides, we also have some reservation regarding
the benefits being given in the name of mother of the victim, when the victim
herself is a major (i.e. aged about 20 years).Thus, in our considered view, it
would be appropriate and beneficial to the victim if the compensation and other
benefits are directly given to her and accordingly we order so. 24) 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.
25) 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 day-to-day basis.
Conclusion:
26) The crimes, as
noted above, are not only in contravention of domestic laws, but are also a
direct breach of the obligations under the International law. India has ratified
various international conventions and treaties, which oblige the protection of
women from any kind of discrimination. However, women of all classes are still suffering
from discrimination even in this contemporary society. It will be wrong to
blame only on the attitude of the people. Such crimes can certainly be
prevented if the state police machinery work in a more organized and dedicated manner.
Thus, we implore upon the State machinery to work in harmony with each other to
safeguard the rights of women in our country. As per the law enunciated in Lalita
Kumari vs. Govt. of U.P & Ors 2013 (13) SCALE 559,
registration of FIR is mandatory under Section 154 of the Code, if the information
discloses commission of a cognizable offence and the Police officers are duty
bound to register the same.
27) Likewise, all
hospitals, public or private, whether run by the Central Government, the State
Government, local bodies or any other person, are statutorily obligated under
Section 357C to provide the first-aid or medical treatment, free of cost, to
the victims of any offence covered under Sections 326A, 376, 376A, 376B, 376C,
376D or Section 376E of the IPC.
28) We appreciate the
able assistance rendered by Mr. Sidharth Luthra, learned ASG, who is appointed
as amicus curiae to represent the cause of the victim in the present case.
29) With the above
directions, we dispose of the suo motu petition.
……….…………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(SHARAD ARVIND BOBDE)
………….…………………………J.
(N.V. RAMANA)
NEW DELHI;
MARCH 28, 2014.
Courtesy : http://judis.nic.in/supremecourt/chejudis.asp
Courtesy : http://judis.nic.in/supremecourt/chejudis.asp
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