Court on its own motion vs Sanjay and Others

V.K. Bali, J.—The Court took notice in this matter on a complaint received by Hon''ble Chief Justice of this Court by a Senior Advocate of Sirsa, who, of course, did not mention his name. It appears that the matter was referred to me being the Inspecting Judge of the Courts located in District Sirsa in which District prosecutrix-Surjit was allegedly gang-raped. Even though the complaint was against the Presiding Officer of the Court, Shri Gorakh Nath, Sessions Judge, Sirsa, who dealt with the applications for anticipatory bail filed by the accused, it was thought appropriate to first deal, on judicial side, with the matter as such treating the complaint to be application for cancellation of the bail and then to deal in the matter on administrative side against the officer concerned, if circumstances so demanded.

On August 17, 1994, thus, I issued notice to the Advocate General, Haryana, the prosecutrix and the accused. Shri R.S. Cheema, a Senior Advocate of this Court was requested to assist the Court in the matter. The records of the case were also sent for. On the adjourned date i.e. September 2,1994, the police file containing all papers regarding investigation of the matter and records from the Sessions Court were made available and were ordered to be retained in the Court. The parties were given opportunity to get all or any document that they required with a view to defend this case. Shri Surjit Kaur prosecutrix did not appear on the adjourned date i.e. September 9,1994, matter had to be adjourned for September 16, 1994. On the date aforesaid, however, Smt. Surjit Kaur attended the Court and was asked some questions which exercise became necessary in view of the fact that during the pendency of this petition, two affidavits were allegedly given by her in which she had denied the incident, subject matter of First Information Report which she lodged 7/8 days after the incident of rape. Before I proceed with the matter any further, it will be useful to detail the facts of the case right from the date when the FIR was lodged in the matter till date.

The FIR No. 66 dated February 24, 1994, under Sections 376, 342 and 506 read with Section 34 of Indian Penal Code came to be recorded by police of Police Station Sadar, Dabwali. On the said date Surjit Kaur along with her husband and mother-in-law Pritam Kaur and Seema Advani in charge of the Musical Group got registered this case and she stated that she was married about ten years ago and got a female child of five years old and she was working as a Dancer in Bright Musical Group of Seema Advani. Her husband was working as a Taxi Driver and the Musical Group in which she was working used to give performance with Orchestra at the time of marriages and other occasions, on February 5,1994, Sanjeev alias Dogar Bajaj had booked this group from 6.00 p.m. to 12.00 p.m. mid night on February 15, 1994 in connection with the marriage of Sanjay son of Gorakshak Chaudhary, resident of Dabwali with the daughter of one Subhash Dharnia of Abub Shahar. The booking was settled at a total consideration of Rs. 15,000/- and a sum of Rs. 2,000/- was paid in advance whereas the remaining amount of Rs. 13,000/- was to be paid before the actual performance of the group on February 15, 1994. Five Musicians, one singer, two persons who looked after the sound system and four girls including the singer named Jasbir alias Jassi worked in this group and that three girls used to give dance performances. She herself, Radhika and Anita were the dance performers on such occasions. She further alleged that on February 15, 1994 Seema Advani and her husband Kanhaiya Advani along with the remaining group reached the place at 6.00 p.m. but the programme commenced only at 10.00 p.m. and continued up to 2.00 a.m. on the next morning. When the programme was about to conclude, some persons who were guests of bridegroom and who were drunk started raising noise resulting into winding up of the programme. The group people including the prosecutrix then put their luggage into two wagons which they had brought with them from Ludhiana. She and three other girls occupied one Maruti Van along with brother of Radhika aged 12/ 13 years. When the driver of their Van started the vehicle, some other Maruti Cars followed them. When their van reached on the road, one Maruti car at once came ahead of Maruti Van and four persons including the bridegroom came out of that car and one of these persons was carrying a pistol. All the four persons then came towards the window of their van but the remaining three female companions of the prosecutrix got down from the van from the other window and ran away but the four persons caught hold of her from hair and dragged her to their car. The man who was carrying the pistol threatened to kill her if she raised any alarm. She was brought to a Tourist Complex known as ''Kala Tittar'' Abub Shahar. She was then taken to a room on the first floor of that complex on pistol point. The door was bolted from inside and she was forcibly put on the bed and her clothes were removed. Sanjay addressed one person as ''Baljit Jija'' (brother-in-law) and told him that first of all he should enjoy her and then Baljit committed rape on her. Thereafter, Sanjay addressed another perosn as ''Joginder Bhai'' (brother) and told him that it was his turn now. Joginder then committed rape on her. Thereafter, Sanjay in whose marriage her Musical Group had come to give performance committed rape on her and thereafter fourth man committed rape on her. She could not know the name of 4th man but she could identify him. She also alleged that she remained crying with pain but the accused did not listen and all this continued for about 1 1/2 hours and during this period she kept on requesting the persons committing rape on her with folded hands that she should be allowed to go. The accused threatened her with murder if she was to report the matter to any one or to the police about the incident. She was left there and thus covered the distance up to Abub Shahar on foot by which time it had become day time. She found that her Maruti Van was lying parked on the road and Jassi and the driver of the van were sitting in the van. They were also thoroughly frightened. She, however, occupied the van and went to Ludhiana. Radhika, Anita and brother of Radhika did not meet her. After reaching Ludhiana, she narrated the entire incident to her mother-in-law Pritam Kaur. Her husband was informed later as he was not there at Ludhiana having gone out of station and had returned only on February 23,1994. It is only when the matter was brought to the notice of the husband that she along with her husband, Seema Advani and also her mother-in-law came to report the matter to the police. She stated before the police that clothes which she was wearing on the date of occurrence were torn and were also stained and that she had kept the clothes at her house and could produce the same. On the basis of the statement of Surjit Kaur prosecutrix, as narrated above, the FIR came to be recorded by the police.

Baljit Singh on February 26,1994 i.e. just two days after the FIR came to be recorded by the police applied for grant of anticipatory bail u/s 438 of the Code of Criminal Procedure. The matter came to be disposed of by the Sessions Judge, Sirsa on 28th itself. The bail application after taking into consideration the entire prosecution story and the defence version was rejected. The operative part of the order passed by the Sessions Judge reads as follows:-

"I have given an anxious consideration to the rival contentions of the counsel for the parties. The delay in lodging the report in this case is not of much consequence at this stage of the case because the prosecutrix was married lady and it was not unnatural in India that the police report is lodged in cases of rape after giving serious thinking by the family members whether to expose or not to expose oneself in the society because the society looks (down upon) the victim instead of having sympathy. In view of this, no capital can be made out of the so called delay in lodging the FIR at this stage of the case. Having regard to the grave and reprehensible nature of offence alleged (Emphasis supplied) to have been committed in this case and keeping in view the totality of the circumstances of this case. I am of the considered opinion that the accused-applicants do not deserve to be given concession of anticipatory bail. These applications are, thus, rejected."

It requires to be mentioned that one of the pleas raised in the application filed by Baljit Singh accused was that being a Traffic Manager, Haryana Roadways, Kaithal, he was at the place of duty on February 15, 1994, the alleged date of occurrence. He along with other members of the staff checked Haryana Roadways buses of Kaithal Karnal road up to 9.00 p.m. on February 15,1994. Since the occurrence had taken place on the intervening night of 15/ 16th of February, 1994, it was stated that he could not be present at the time of occurrence. Joginder Singh too filed petition for grant of anticipatory bail on the same very date i.e. February 26,1994, which was also dismissed by the Sessions Judge on February 28, 1994. In fact, both the applications came to be disposed of with the common order.

In so far as Sanjay son of Gorakshak Chaudhary is concerned, he applied for grant of anticipatory bail on March 1, 1994. This application came to be disposed of by Additional Sessions Judge, Sirsa and was dismissed on March 8,1994. The operative part of the order runs thus:-

"Members of the Orchestra party, in which the prosecutrix was a dancer, were the guests of petitioner-accused Sanjay and his companions. If such a conduct is displayed by the hosts towards the guests, then there is an end of decency. In a way this incident thus is not only a gang rape but gang-cum-custodial rape. The offence involved is most reprehensible in nature. It must hand the head of any civilised society in shame. Long and complex clauses of the Penal Code cannot save the weaker sections from the clutches of such type of lusty youth. What is required is a socially sensitised approach and the same demands nothing but the rejection of this application and immediately booking of the culprits. It is a matter of regret that the police has not been able to apprehend the petitioner-accused and his companions so far. Does it not reflect the collusion of the local police with the culprits of this incident?"

(Emphasis supplied)

It requires to be mentioned that along with the applications, affidavit of Santa Ram son of Hari Ram who had performed the marriage of Sanjay with Alka was also attached. It was stated by him that on February 15, 1994 from 10.00 p.m. to 5.00 p.m. on the night intervening. 15/16th February, 1994, bridegroom was with him either at the pandal or at the house of the bride. Dhana Ram and Hari Ram, later a Chowkidar at Tourist Complex had also filed affidavits. All these affidavits were taken into consideration while rejecting the application of accused Sanjay.

So far as 4th man is concerned, whose name is not in the FIR but whom the prosecutrix as per the FIR lodged by her could identify prayed for his bail, once again anticipatory of his application dated June 1,1994 and the same was allowed on June 10,1994. Rejection of the bail by the three accused, namely, two orders passed by the Sessions Judge and third order passed by the Additional Sessions Judge, necessitated filing of application for grant of anticipatory bail in this Court.

The allegations made in the complaint received by this Court are that the aforesaid applications were withdrawan as meanwhile accused had successfully approached the Presiding Officer for their being released on bail for considerations other than merit. Fresh applications for grant of anticipatory bail were thereafter filed on behalf of Joginder Singh accused on May 3, 1994 which was allowed on May 7,1994. Sanjay accused filed second application for anticipatory bail on May 2, 1994 which too was allowed on May 12, 1994. Accused Baljit likewise applied second time for anticipatory bail on May 8, 1994 and was granted bail on May 12,1994 by the Sessions Judge, Sirsa. In so far as accused Ashwani is concerned, he moved his first application for grant of anticipatory bail on June 1, 1994, which was allowed on June 10, 1994.

All this while, when these bail applications were being dismissed or allowed, it is admitted position that the accused were not arrested even for a day. As mentioned above, the FIR came to be lodged on February 24, 1994 and it is only in May 1994 i. e. about 2 1/2 months thereafter that the accused were al lowed anticipatory bail while the fourth accused was allowed bail in June 1994. The learned Senior Counsel Shri R. S. Cheema, assisting the Court, after perusing the police file informs the Court that the police besides recording the statements of Pritam Kaur, mother-in-law of prosecutrix, Gorakhjit, her husband, Seema Advani of Bright Music Group and Om Parkash Saini in charge of Tourism Complex as also the statement of Kanhiya Advani, husband of Seema Advani, did nothing else, which fact is not disputed by the defence counsel. The statements of witnesses aforesaid were recorded on February 25, 1994 but for Kanhiya Advani, whose statement was recorded on March 2, 1994. The police took into possession clothes of the prosecutrix which were sent to Forensic Science Laboratory on March 25, 1994. As mentioned earlier, accused Baljit and Joginder sought anticipatory bail which was rejected on February 28, 1994. Likewise, application for pre-arrest bail of Sanjay accused was dismissed on March 8,1994. Inasmuch as, the second bail application of the aforesaid accused, again for grant of anticipatory bail, was allowed on May 7, 1994, whereas that of fourth accused in June, 1994, obviously, the complaint against the Sessions Judge was received thereafter and, as mentioned earlier, on August 17, 1994, this Court had issued notice to accused and others.

Having examined in detail the facts leading to issuance of notice to accused, it is now time to notice the affidavits of three ladies accompanying the prosecutrix on the fateful day, on the basis of which alone, it appears, the Sessions Judge took entirely different view than the one taken by him earlier while rejecting the application of accused for anticipatory bail. It requires to be mentioned that even though in the order granting anticipatory bail the Sessions Judge has noticed the contentions of the defence counsel, like delay in lodging the FIR, prosecution story being improbable, there being no reason for the companions of the prosecutrix not to lodge the FIR immediately, affidavits of Lambardar, Purohit, who performed the marriage and chowkidar of the Tourist Complex but all these defences were open to the accused and were actually pressed into service when they prayed for anticipatory bail which, as mentioned above, was rejected. The affidavits of three ladies, namely, Anita Bawa, Radhika and Jasbir Kaur were executed and attested on April 7, 1994 and the statements, as per the contents of order of Session Judge granting bail, were recorded by the police on May 5,1994. The affidavits are stereo type and have been attested on the same day. After narrating the incident up to giving performance, it is mentioned that the prosecutrix had gone with them to Ludhiana and on the way no untoward incident had happened. It is also mentioned that some persons by offering money tried that they refused. It is also mentioned in the affidavits that the deponent came to know about Surjit Kaur having lodged an FIR which was an outcome of greed.

Insofar as the prosecutrix hereself is concerned, her affidavit dated July 29, 1994 was obtained after all the accused were granted anticipatory bail. She was represented by a lawyer in this Court through whom an application supported by an affidavit was filed wherein contents of affidavit dated July 29, 1994, were owned.

In pursuance of notice issued by this Court, all the accused represented through Shri Kuldeep Sanwal, Advocate, appeared. However, the learned Assistant Advocate General, Haryana, informed the Court that the prosecution had already moved an application for cancelling the FIR against the accused. The police and judicial record that was summoned was made available and was ordered to be retained in Court. The accused were, however, given opportunity to obtain any document contained in either of the files and the matter was adjourned to September 9, 1994. On the adjourned date, the presence of prosecutrix could not be secured as information with regard to her presence, as per statement of Asstt. A. G., was received late. A direction was, thus, issued to the Senior Superintendent of Police, Ludhiana, to take appropriate steps to ensure the presence of prosecutrix Surjit Kaur in Court on the next date of hearing. Proceedings with regard to cancellation of case were stayed, and the matter was adjourned to September 16,1994. On the adjourned date, the prosecutrix appeared. All those who were present in the Court were sent out with a view to ask the prosecutrix the truth of incident from lodging of FIR to date when she had come in the Court. In my order dated September 16, 1994,1 had not mentioned any thing with regard to incident as reported by the prosecutrix in the Court as also the affidavits given by her and the matter was left to be commented upon at the time of final disposal. At that stage, it was only mentioned that her affidavits, as per her version, were obtained from her by coercion of the accused. Time is thus ripe now to mention as to what she had disclosed to this Court but before that is done, it is made positively clear that nothing mentioned in this order and in particular, her version before this Court would ever be construed for any other purpose against the accused and her version i� noticed in this order only for the purpose of deciding this matter for cancellation of bail of accused on suo motu notice issued by the Court.

Looking pale out of sheer pressure exerted on her and with un-controllable flow of tears, she owned the FIR having been lodged by her and every word of the same being gospel truth. Completed antipathy of the police with her and her cause and one sided and biased attitude of the police in favour of the accused, who are all influential and rich able even to pressurise her companion-music dancers as also the distance that she had to travel from Ludhiana to Sirsa in prosecuting the case with no support coming from any side whatsoever, coupled with threats of accused, left her with no choice but for to deny the incident.

I have heard learned counsel representing the accused and Assistant Advocate General, Haryana, as also Shri R.S. Cheerha, Sr. Advocate, assisting the Court and after going through the entire records minutely, I deem it a fit case where anticipatory bail granted to all the accused but for Ashwani deserves to be cancelled. Even though the case against Ashwani accused and the part attributed to him is the same as the other accused but as a matter of abundant caution, inasmuch as his name in is not mentioned in the FIR and on that count there are some distinguishing features in his case as compared to others, his bail is not being cancelled.

Surjit Kaur - prosecutrix was allegedly gang-raped on February 15, 1994. The police came to know about this incident at least on February 24, 1994, if not earlier, as it is on that date, admittedly, that the FIR was lodged. Accused Baljit and Joginder prayed for anticipatory bail vide their application dated February 26, 1994, which was dismissed on February 28, 1994 whereas prayer of prepared bail of Sanjay accused was declined on March 8, 1994. It is a matter of gread regret that the police dealing with the matter instead of immediately proceeding to arrest the accused, rather chose to record statements of some persons, whose statements would have not been very useful to the prosecution version and blissfully ignored their first duty of recording statements of eye witnesses. As per version of the prosecutrix, which was available with the police on February 24, 1994, the driver of Maruti Van in which prosecutrix was travelling, three ladies accompanying her and brother of one of them, were the eye witnesses of at least abduction, if not of rape. As mentioned earlier, the police instead chose to record the statements of Pritam Kaur, mother-in-law of prosecutrix, Gorakhjit, her husband, Seema Advani of Bright Music Group and Om Prakash Saini, Incharge of Tourist Complex as also that of Kanhiya Advani, husband of Seema Advani. Whereas, statements of others were recorded on February 25, 1994, Kanhiya Advani''s statement was recorded on March 2, 1994. The clothes of the prosecutrix, which she was wearing on the date of incident, were sent to the Forensic Science Laboratory on March 25,1994 i.e. exactly after a month when prosecutrix was gang-raped. These matters were perhaps in the notice of the Court i.e. Shri P. L. Goyal, Addl. Sessions Judge, who declined bail to Sanjay and it is for that precise reason, it appears, that he recorded a clear finding in his order dated March 8, 1994, that it was a matter of regret that police has not been able to arrest the petitioner-accused and his companions so far and that it reflects the collusion of local police with the culprits of incident. It appears to this Court that the Additional Sessions Judge was absolutely right in observing what has been mentioned above. In heinous offences, the requirement of arresting the accused immediately is of utmost importance as any laxity in the matter positively results into endeavour of accused to tamper with the prosecution evidence. It appears to this Court that on account of laxity that the police has shown and, may be, on account of its being hand-in-glove with the accused this is what exactly happened in this case. The conduct of police is most unfortunate and reprehensible and deserves to be condemned in severest words. Instead of protecting law, for which purpose alone the police exists, they have rather shielded the accused. It is on February 28, 1994 that bail application moved by Baljit and Joginder accused was dismissed. Anticipatory bail of Sanjay accused was dismissed on March 8, 1994 and as mentioned above, till date no arrest has been made in this case. It is during the intervening period i.e. from the date of occurrence and lodging of FIR and till such time the matter was taken again before the Sessions Judge for grant of anticipatory bail that the accused, it appears, did their very best to silence all relevant voices which were capable of lending them in jail. As mentioned above it is on April 7, 1994, that the three ladies accompanying the prosecutrix got their affidavits attested which are attached with the bail application allowed on May 7,1994. It is during the pendency of bail application aforesaid that the police recorded statements of these three ladies on May 5,1994 and on the basis of which, as informed to this Court by the learned Assistant Advocate General, an application has already been filed for cancellation of the FIR as such. Recording of Statements of these three ladies on May 5, 1994, by which time as it appears to this Court, they had already been pressurised or won over, was wholly meaningless. However, it proves one thing at least that the police knew that their statements were required to be recorded but this important aspect of the case was taken into count deliberately when it was too late. In these circumstances, coupled with the pressure exerted upon herself, if the prosecutrix withdrew from the case, although un-willingly, she cannot be blamed for having lost faith in police and in the wretched circumstances in which she was, it appears, the influence of the accused did not prove abortive. As mentioned above, it is only on July 29,1994, that she got an affidavit attested at Ludhiana denying the incident of rape and it is on September 13,1994, in this Court that she filed an application owing the contents of her affidavit dated July 29, 1994. In peculiar circumstances of this case, however, this Court is of the considered view that these affidavits filed by the prosecutrix as also the affidavits filed by three ladies accompanying her, should be considered to be of no value. That apart, the very contents of the affidavits filed by three ladies, whose names have been mentioned above, prima facie, show that there is something remiss, there being inherent lacunae in the same. It may be recalled at this stage that while supporting incident up to the giving of musical performance, wherein the prosecutrix was also present, all that they have to say is that it is later on that some persons on the promise that they will be compensated asked them to involve the accused in a rape case. The names of said persons, who allegedly offered them something, were not mentioned in the affidavits nor as to what they were actually offered. Accused are not coming forward with the defence that someone was interested in involving them in such kind of case and who might have offered something to those ladies. In so far as the affidavits of prosecutrix are concerned. I have already commented upon that the same are not true in view of her supporting the contents of FIR that she lodged with the police.

In totality of the circumstance, thus, accused Sanjay, Baljit and Joginder, who have already misused the concession of bail, deserve to be arrested forthwith by cancelling the bail granted to them by the Sessions Judge, Sirsa.

In as much as the local police, in considered view of this Court, has shown complete laxity in the matter and, in all probability, is protecting the accused on extraneous considerations, this case should not be handled by the local police and instead the Superintendent of Police (Crimes), Haryana, Headquarters of which are at Panchkula, would either himself investigate the matter or entrust it to an officer not below the rank of Dy. Supdt. of Police (Crimes) to arrest the accused or get them arrested and then do investigations himself or through the DSP as mentioned above and if case is made out against the accused, shall put up the challan in the Court of Sessions Judge, Chandigarh. Vide my orders dated September 16, 1994, I have already withdrawn this case from the Court of Sessions Judge, Sirsa and transferred it to the Court of Sessions Judge, Chandigarh.

Before I part with this judgment, I would repeat that mention of statement of prosecutrix made in this Court has been taken notice of only for the purpose of disposing of this matter. As mentioned earlier, it shall not be taken into consideration for any other purpose whatsoever either by the police or by the Court. Nothing else also said in this order shall ever be construed as an expression of opinion on the merits of the case, besides, of course, indictment of the local police which was dealing with this case. Accused would have all defences open to them that may be permissible under law and any Court dealing with this matter, either with regard to grant of bail, which in the circumstances would only be regular bail, or the main case, shall dispose of the matter being totally un-influenced of what has been said in this order.

It requires to be mentioned that arguments in this case were concluded on September 23,1994 and the case was posted for October 7, 1994 for pronouncement of judgment but on that very day another application came from accused Baljit through Mr. P.S. Mann, Sr. Advocate asking for hearing him as he was not represented by any lawyer earlier. This application was disposed of on the same day by observing that accused Baljit was represented by Mr. Kuldeep Salwan, Advocate, whose power of attorney was also on records. Despite that Mr. Mann was heard and case was posted for orders for October 27, 1994.

Accused Sanjay, Baljit and Joginder, who are present in the Court today, be arrested for their interrogation and investigation in the matter by the Superintendent of Police (Crimes), Haryana. A copy of this order be given to each accused forthwith under the signatures of the Reader of this Court and a copy be also sent to the S.P. (Crimes), Haryana. Has at Panchkula. Insofar as accused Ashwani is concerned, he is directed to join investigation as and when called by the concerned police. He is also directed not to tamper with the prosecution evidence and leave the country without prior permission of the Court.

Registrar (Judicial) of this Court has been asked to inform the concerned police arrest the accused from the Court itself and proceed further in the matter in accordance with law.