1
REPORTABLE
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, Stat e of West Bengal on the
intervening night of 20/21. 01.2014 on the orders of
community panchayat as punishmen t 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
2
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 di rection, the Chief Secretary
submitted a detailed report da ted 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
3
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
4
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 justif ication 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 l ead 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
5
explained. Moreover, he submitted that there is variance in
the version of the FIR and the Re port 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, offe nce 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 cons idered by the investigating
agency. He further pointed out th e 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
6
the aspect as to whether there w as 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 be looked into and
rectified. The above statement is hereby recorded.
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 aggressi on against a woman and it is
shocking that even with rapi d modernization such crime
persists in our society. Keeping in view this dreadful increase
in crime against women, the C ode 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
7
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)
8
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.
9
(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 sub-section (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
10
or she can marry whosoever he/she likes. If the parents of
the boy or girl do not approve of such inter-caste 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
institutionalised 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
11
barbarism and feudal mentality. Moreover, these acts take
the law into their own hands, and amount to kangaroo
courts, which are wholly illegal.
13. 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 242
nd
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.
12
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 in
Shakti Vahini vs. Union of India and Others in W.P. (C) No.
231 of 2010.
13
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 ci tizens; 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 vi sit 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.
14
Government will have to formulate and implement policies in
order to uplift the socio-eco nomic 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 ad equate nor can it be of any
respite for the victim but as th e 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 compensatio n to the victims of crime in
coordination with the Central Government whereas,
15
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 recogn ized 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
16
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 lacs as
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 ra pe should be compensated by
giving them half of the property of the rapist(s) as
17
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
4
th
March, 2014, the undersigned has reviewed the progress
of rehabilitation measures taken by the State Government
18
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”
19
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 cl arify that according to Section
357B, the compensation payable by the State Government
under Section 357A shall be in addi tion to the payment of fine
to the victim under Section 326A or Section 376D of the IPC.
20
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 likel y 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 Internatio nal law. India has ratified
various international conventions and treaties, which oblige
the protection of women from an y kind of discrimination.
However, women of all classes are still suffering from
discrimination even in this cont emporary 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
21
in a more organized and dedi cated 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 offe nce 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 St ate 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 cover ed 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.
22
29) With the above directions, we dispose of the s uo motu
petition.
……….…………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(SHARAD ARVIND BOBDE)
………….…………………………J.
(N.V. RAMANA)
NEW DELHI;
MARCH 28, 2014.
REPORTABLE
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, Stat e of West Bengal on the
intervening night of 20/21. 01.2014 on the orders of
community panchayat as punishmen t 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
2
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 di rection, the Chief Secretary
submitted a detailed report da ted 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
3
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
4
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 justif ication 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 l ead 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
5
explained. Moreover, he submitted that there is variance in
the version of the FIR and the Re port 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, offe nce 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 cons idered by the investigating
agency. He further pointed out th e 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
6
the aspect as to whether there w as 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 be looked into and
rectified. The above statement is hereby recorded.
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 aggressi on against a woman and it is
shocking that even with rapi d modernization such crime
persists in our society. Keeping in view this dreadful increase
in crime against women, the C ode 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
7
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)
8
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.
9
(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 sub-section (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
10
or she can marry whosoever he/she likes. If the parents of
the boy or girl do not approve of such inter-caste 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
institutionalised 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
11
barbarism and feudal mentality. Moreover, these acts take
the law into their own hands, and amount to kangaroo
courts, which are wholly illegal.
13. 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 242
nd
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.
12
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 in
Shakti Vahini vs. Union of India and Others in W.P. (C) No.
231 of 2010.
13
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 ci tizens; 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 vi sit 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.
14
Government will have to formulate and implement policies in
order to uplift the socio-eco nomic 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 ad equate nor can it be of any
respite for the victim but as th e 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 compensatio n to the victims of crime in
coordination with the Central Government whereas,
15
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 recogn ized 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
16
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 lacs as
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 ra pe should be compensated by
giving them half of the property of the rapist(s) as
17
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
4
th
March, 2014, the undersigned has reviewed the progress
of rehabilitation measures taken by the State Government
18
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”
19
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 cl arify that according to Section
357B, the compensation payable by the State Government
under Section 357A shall be in addi tion to the payment of fine
to the victim under Section 326A or Section 376D of the IPC.
20
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 likel y 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 Internatio nal law. India has ratified
various international conventions and treaties, which oblige
the protection of women from an y kind of discrimination.
However, women of all classes are still suffering from
discrimination even in this cont emporary 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
21
in a more organized and dedi cated 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 offe nce 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 St ate 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 cover ed 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.
22
29) With the above directions, we dispose of the s uo motu
petition.
……….…………………………CJI.
(P. SATHASIVAM)
………….…………………………J.
(SHARAD ARVIND BOBDE)
………….…………………………J.
(N.V. RAMANA)
NEW DELHI;
MARCH 28, 2014.
No comments:
Post a Comment