Satyama Dubey & Ors vs Union Of India & Ors

The petitioners and all the intervening applicants in these matters have raised concern with regard to the manner in which a 19 years old girl hailing from Hathras, Uttar Pradesh is alleged to have been raped, brutally assaulted; due to which she lost her life and also the manner in which she was cremated. The Writ Petition (Crl) No.296/2020 was initially taken on board by this Court and notice was ordered to the respondents returnable in a week. In the meanwhile, the remaining petitions and the applications were filed in respect of the same incident to seek for varied reliefs which are all ultimately in pursuit of a fair investigation and bring to justice the culprits.

The details of the other applications and writ petitions are as follows:

Petition/Intervening Applications

Applicant/Petitioner

Prayers

Cr.  M.P.  No.  10597

of 2020

Ramu alias Ram Kumar

Intervention             Application seeking  indulgence  of  Court for  ordering  CBI  investigation or     formation     of     SIT     to investigate the matter under a sitting or retired Justice of SC or HC. Further, transfer of trial

to Delhi is prayed for.

I.A.  No.  101799   of 2020

All       India       Women Conference          (NGO) through     its     General Secretary   Ms.   Kuljeet

Kaur

Prayer   for   impleadment   as necessary party in the array of petitioners

Crl. M.P. No. 102148

of 2020

Citizens  for  Justice  and Peace                 through Secretary

Seeking      intervention      and directions for:

Transfer         of         the investigation to CBI

Protection  of  witnesses by  central  para  military

forces

Appointment  of  a  retired Judge      of      SC      to investigate                  the circumstances which led to  the  cremation  of  the victim.

Crl. M.P. No. 105463

of 2020

Radhika Vemula & Ors.

Praying         for         following directions:

Transfer of all connected cases  of  gang-rape  and death from  U.P.  to Delhi Special Court

Constitution   of   SIT   for investigation     into     the gang-rape    and    death tragedy in order to avert political interference

Restraining                 the

respondents             from conducting       polygraph test,   narco-analysis   or brain   mapping   on   the victim's family

Protection     to     victim's family        and        other witnesses.

Directing respondents to strictly  implement  SC  & ST       (Prevention       of

Atrocities) Act, 1989

I.A.  No.  103488   of 2020

By   Members   of   Delhi High        Court        and Supreme     Court     Bar Association

Seeking orders for:

Constitution   of   SIT   to investigate    the    gang- rape   and   murder   case under   the   Court's   own monitoring

Providing          adequate

protection        to        the witnesses

Transfer of trial from U.P. to  SC/ST  Special  Court in     Delhi     subject     to consent from the victim's family

Appointment of a Senior Advocate     as     special prosecutor  u/s 15  of  the

SC/ST Act, 1989

I.A.  No.  106081   of 2020

Satendra Kumar

Application                   seeking impleadment as respondent in WP (Crl.)  No.  296  of  2020  or

in    the    alternative    seeking

permission to intervene in the said matter.

Diary                    No.

55441/2020, etc.

Letter petitions received through      E-Mail      by

citizens

For     Appropriate     directions being sought for by SC in the

gang-rape and murder case

D.No.    54893/2020,

etc.

Letter petitions received through e-mail/by post

For     Appropriate     directions

being sought for by SC in the gang-rape and murder case

IA   No.   105728   of 2020

Applicant/Shobha Gupta

Intervention             Application seeking        permission        to intervene to make appropriate submissions  and  suggestions as  the  matter  is  of  extreme importance.

Crl  MP  No.  105362

of 2020

Applicant/Rashtriya Dalit   Bachao   Andolan Through   its   President

O.P Shukla and Others

·  Application                  for

Impleadment      as      he himself   belongs   to   the SC      community      and direction  to  R  to  ensure dignified cremation of all the  victims  of  crime  and no  discrimination  to  be made   toward   SC,   ST, OBC

·  Direction                      for

investigation  against  the officials       who       were responsible                 for cremation    and    illegal detention   of   the   family members         to         be

monitored       by       this Hon'ble Court.

Crl  MP  No.  105458

and 105460 of 2020

Applicant/Radhika Vermula and Others

· Application                  for

Impleadment               for upholding   the   rights  of the      SC      and      ST community  and   that  of society at large

· seeking   CBI   and   SIT

probe  into  the  case  as the                     impartial

investigation  was  being conducted   by   the   UP police.

Crl  MP  No.  105452

of 2020

Applicant/Munnoka Samudaya Samrakshana   Munnani through its President

Application    for    intervention seeking an investigation in the case against the accused and into  the  alleged  lapses  in  the administration into the case.

WP(Crl)  No.  304  of

2020

Chandra Bhan Singh

vs  State  of  UP  and

Others

Connected:  WP(Crl) No.    308    of    2020

Sushma          Motilal

Maurya  vs  State  of

UP and Others

Petitioner/Chandra

Bhan Singh

Connected:    Petitioner/ Sushma Motilal Maurya

Prayer for;

Mandamus                  for investigation  of  the  role of R3-R7 for mishandling of body of the victim

Direction         to         the

Investigating   agency   to get    statement    of    the Mother,      father      and brother    of    the    victim before    the    magistrate and    if    the    allegation made  by  the  family  are true    to    register    FIR against the guilty.

Connected:  Direction  to  take cognizance, constitution of the HC   monitored   Investigation, inquiry  and  suspension  of  the erring    police,    medical    etc trying     to     manipulate     the evidence,     charges     to     be framed   against   police   who were         responsible         for

cremation of the Victim.

WP (Crl)  No.  314  of 2020     Public     mail through  its  publisher vs   Union   of   India and Others

Petitioner/   Public   mail through its publisher

Praying         for         following directions:

Mandamus  to  R  to  fix the responsibilities of the Police officials who burnt the  girl  in  midnight  and to punish them

Transfer    the    case    to

Delhi from Hathras

Direction  to  R  to  make special  forum  or  frame guidelines  for  such  rape

in future.

WP (Crl)  No.  316  of 2020              Chetan Janardhan    Kamble Vs   Union   of   India and Others

Petitioner/           Chetan Janardhan Kamble

Petition seeking direction to:

Register     offence     u/s 166-A,   193   ,201,   202, 203,  212,  217,153A and 339 of  the IPC  and 3(2) and 4 of the SC and ST Act  1989   against   Govt officials      involved      in destruction of evidence

Investigation  by  Special

Task   Force   (excluding CBI and UP police

Deposit  all  the  evidence including               videos

collected         at         the Safdarjung   hospital   for examination                 by independent forensic lab

Direction             granting

protection   by   CRPF   to the       witnesses       and members of the family of victim                  pending

investigation.

For a brief narration shorn of unnecessary details and to note the nature of the relief sought, the petition in W.P. (Crl.) No.296/2020 is referred. In the Writ Petition filed under Article 32 of the Constitution of India the petitioners are praying that the Union of India and concerned authorities be ordered to conduct a fair investigation; if need arise by transferring the case to the Central Bureau of Investigation ('CBI' for short) or SIT be formed to investigate the matter. It is also prayed that a sitting or retired Supreme Court Judge or High Court Judge be appointed to look into the matter. The petitioners have further prayed that the case be transferred from Hathras, Uttar Pradesh to Delhi.

The case as put forth is that a 19­year­old girl, resident of Hathras village in Uttar Pradesh was brutally gang­raped. The manner in which she was assaulted is referred to in the petition. Though she was shifted to Safdarjung Hospital in Delhi, she breathed her last and she was cremated in the middle of the night without the presence of her family members. Considering the manner in which the entire incident had taken place, the petitioners contended that a fair investigation would be possible only if the matter is entrusted to an independent agency.

The pleadings in the other writ petitions and the intervention applications are relating to the same incident though different reliefs have been sought, which in any event is to secure fair investigation and punish the guilty in accordance with law.

At the outset, when the first of the petition was taken up by this Court on 16.10.2020, Mr. Tushar Mehta, learned Solicitor General had fairly submitted that the instant petition would not be considered as an adversarial litigation and the respondents are also interested that a fair investigation be conducted and the offenders be brought to book. At that stage, it was noticed that the Allahabad High Court, Lucknow Bench having taken note of the incident had passed a detailed order dated 01.10.2020 and ordered registration of the suo moto petition being PIL(C)No.16150/2020. In that circumstance this Court was of the prima facie view that the petitions filed before this Court need not be entertained at this stage since the jurisdictional High Court was seized of the matter. However, Ms. Indira Jaising, learned Senior Counsel while intervening on behalf of the intervening advocates had raised concern with regard to the adequate protection being provided to the victim's family members and the witnesses. Having found that such concern raised needs to be addressed, the learned Solicitor General was requested to secure instructions on these aspects and file an appropriate affidavit.

Pursuant thereto, an affidavit dated 14.10.2020 sworn to by the Special Secretary, Home Department, Uttar Pradesh is filed, wherein the details of the security provided is indicated. In that regard it is stated that the parents, two brothers, one sister­in­law and grandmother of the victim who are residing at village Chandpa, District Hathras, Uttar Pradesh have been provided protection under a three­fold protection mechanism through (a) Armed Constabulary Component, (b) Civil Police Component and (c) Installation of CCTV cameras/lights. The details of each of the component is also stated in the affidavit and it is further stated that the Inspector (In­charge) of Police Station Chandpa has been made In­charge of the aforesaid entire arrangement to deploy suitable police force for the same. The Circle Officer, Sadabad is to ensure robust security arrangement by holding regular clear briefings to the police force and to inform the family members about the security arrangements provided to them. The affidavit also states that on enquiry from the family members of the victim it is learnt that they have engaged Ms. Seema Kushwaha and Mr. Raj Ratan, Advocates on behalf of the family as their private advocates.

The affidavit also indicates that the investigation by the CBI would be conducted under the supervision of the Court in a time bound manner. The Director General of Police, State of Uttar Pradesh has also filed an affidavit indicating that the State Government itself has sought investigation by the CBI to be conducted under the supervision of the Court and on 10.10.2020 the CBI accepted the request of the State and has started investigation in respect of the crime, on 11.10.2020. The orders dated 01.10.2020 and 12.10.2020 passed by the High Court and the fact that the High Court has been apprised that the investigation by the CBI was in progress is stated therein.

In addition to hearing Mr. Tushar Mehta, learned Solicitor General who appeared for the State, Mr. Harish Salve, learned Senior Counsel for DGP and Smt. Seema Kushwaha on behalf of the family members of the victim as also the other learned counsel lead by Ms. Indira Jaising, Mr. Colin Gonsalves, learned Senior Counsel who raised concern on behalf of the victim's family in the various writ petitions and applications, we have taken note of the submission made by Mr. Sidharth Luthra, learned senior counsel who sought to appear on behalf of the accused to contend that the legal right available to the accused ought not to be ignored in the process.

Though various contentions were urged, the undisputed fact is that the investigation has in fact been entrusted by the State Government itself to the CBI on 10.10.2020 and the CBI has started investigation in respect of the crime on 11.10.2020. Therefore, the apprehensions expressed by the petitioners/applicants that there would be no proper investigation if the Uttar Pradesh Police conducted the same would not remain open for consideration at this stage and the grievance to that extent stands redressed. Though the petitioners had sought and the respondent­State also through their affidavit had indicated that this Court can monitor the same, as already referred to above, a PIL(C)No.16150/2020 has been registered in the Allahabad High Court, Lucknow Bench, suo moto pursuant to its order dated 01.10.2020. From the order passed by the High Court it is noticed that the High Court has adequately delved into the aspects relating to the case to secure fair investigation and has also secured the presence of the father, mother, brother and sister­in­law of the victim and appropriate orders are being passed, including securing reports from various quarters. In that circumstance, we do not find it necessary to divest the High Court of the proceedings and take upon this Court to monitor the proceedings/investigation. That apart, the incident having occurred within the jurisdiction of that High Court and all particulars being available, it would be appropriate for the High Court to proceed to monitor the investigation in the manner in which it would desire. In that view, it would be open for the writ petitioners/applicants herein to seek to intervene in the matter before the High Court subject to consideration of such request by the High Court and if it finds the need to take into consideration the contentions to be urged by the petitioners/applicants in that regard.

Insofar as the protection to the victim's family and the witnesses, the limited purpose for which this Court had directed notice and sought for an affidavit; the affidavit as filed no doubt indicates that sufficient steps have been taken by the State Government to provide protection. Ms. Indira Jaising, learned Senior Counsel would however, contend that the protection as provided through the State Police would not be appropriate and as such the protection be directed to be provided by the Central Reserve Police Force (CRPF). It is further contended by her that a Special Public  Prosecutor  be  appointed  and  the  monitoring  be made.

Having taken note of the contentions and having perused the affidavit filed on behalf of the State Government we are convinced that steps have been taken by the State Government to make adequate arrangement for security to the victim's family and witnesses. However, in a matter of the present nature it is necessary to address the normal perception and pessimism which cannot be said as being without justification. In that view, without casting any aspersions on the security personnel of the State Police; in order to allay all apprehensions and only as a confidence building measure, we find it appropriate to direct that the security to the victim's family and the witnesses shall be provided by the CRPF within a week from today.

On the aspect relating to the investigation, since we have indicated that the High Court would look into that aspect of the matter, the CBI shall report to the High Court in the manner as would be directed by the High Court through its orders from time to time. On the request of Ms. Indira Jaising, learned senior counsel for appointment of a Special Public Prosecutor we see no need to pass any specific order. This is an aspect which could be considered by the High Court in the light of the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the circumstance wherein the family members of the victim have chosen to engage Ms. Seema Kushwaha and Mr. Raj Ratan, Advocates, they would consider these aspects and make request on behalf of the victim in accordance with law if such need arises.

Therefore, without expressing any opinion on the merits of the rival contentions, all aspects of the matter are left open to be considered by the High Court in PIL(C) No.16150/2020 relating to the incident regarding which the investigation is to be conducted by the CBI and also with regard to the grievance put forth alleging illegal cremation. With regard to the protection to the victim's family and witnesses, the respondent No.2 (Chief Secretary, State of U.P) in WP(Crl) No.296/2020 shall bring this order to the notice of the competent officer of the CRPF forthwith with a request to provide adequate security to the victim's family and the witnesses and the CRPF shall take steps to provide the same and shall report the same to the High Court.

Insofar as the transfer of the case to Delhi as sought by the petitioners/applicants, Ms. Seema Kushwaha, learned counsel for the victim's family indicated that the need for transfer would arise after the investigation is complete. On this aspect we are also of the view that it would be appropriate for investigating agency to complete the investigation and in any event since the local police have been divested of the investigation and the CBI is carrying out the investigation there would be no room for apprehensions at this stage. However, the issue as to whether the trial of the case is to be transferred is a matter which is kept open to be considered if need arises in future.

Before parting, we take note of the submission of the learned Solicitor General about the name and relationship of the family members with the victim being depicted in the face of the order dated 12.10.2020 passed by the High Court in PIL(C) No.16150/2020. Since it is a requirement of law to avoid such disclosure, the High Court is requested to delete the same and also morph the same in the digital records and avoid indication of such contents in future.

In terms of the above observations and directions, the writ petitions and applications stand disposed of. No costs.