1. A sordid and obnoxious incident of rape on a foreign lady tourist In the intervening night of 11th and 12th May, 2005 reported In the regional Newspapers evoked the judicial conscience to take suo moto cognizance, considering that the Constitutional Courts vested with the powers under Article 226 of the Constitution of India, can no more be a silent spectator in the matter of violent crime against women and wait for its turn for dispensation of justice as provided under the relevant provisions of law.
2. In order to combat the increasing crime against women and to ensure protection and preservation of their human rights, - the Criminal Justice System needs to be addressed from the point of view of systematic Victim Support Service. There is need to promote proactive role of police as well as the trial Courts. Thus, In order to expedite the investigation, to provide protection to the victim, ensuring production of material witnesses during trial without delay, expeditious conclusion of the trial and payment of compensation to the victim, after noticing the incident, by order dated 13.5.2005, we ordered as follows:
"2. The rape is serious crime whether it is of a foreign tourist or any other woman. However, it leaves a question mark on the safety of the foreign tourist in the City of Jodhpur. It is likely to create panic amongst the tourists visiting Jodhpur and the other parts-of the country.
3. In the peculiar facts and circumstances of the case, we consider it appropriate to take cognizance of the Incident and direct as follows:-
i) The Registry is directed to register a Suo Moto petition under the label of "Public Interest Litigation".
ii) The State of Rajasthan through Secretary Department of Home, the Director, Tourism and Superintendent of Police (City) Jodhpur be impleaded as party respondents.
iii) A notice be issued to the said respondents returnable within a period of one week.
4. By ad interim order, further directions are given as follows:
a) The Superintendent of Police, City Jodhpur is directed to ensure that the Investigation of the case is concluded at the earliest.
b) All the agencies concerned with the investigation, including Director F.S.L. are directed to co-operate with the investigation. F.S.L. Report must reach on or before 16.5.2005.
c) In event of filing of charge-sheet, the learned Sessions Judge Is directed to ensure that the trial of the case is concluded expeditiously as far as possible within a period of one month from the date of filing of charge-sheet.
d) The Superintendent of Police, City Jodhpur is directed to ensure the safety of the victim.
e) The State of Rajasthan is directed to bear all the expenses of the victim for her overstay on account of the, incident. She will be paid lodging and boarding expenses for visiting Jodhpur for Investigation or trial in connection with aforesaid Incident.
f) The question with respect to the payment of compensation shall be decided after hearing counsel for the State on the next date of hearing-
g) The Principal Secretary, Department of Home, State of Rajasthan Is directed to ensure the compliance of the order.
h) A copy of the order be sent to the Principal Secretary, Department of Home, State of -Rajasthan today itself by fax.
i) A copy of the order be also served on the victim." SPEEDY & FAIR-INVESTIGATION AND TRIAL :
3. Conducting a fair trial for those, who are accused of criminal offence, Is the cardinal stone of democracy. Conducting the speedy and fair trial is beneficial both to the accused as well as to the Society, which Includes the victim. The right to speedy trial of criminal offence has been recognized, implicit in the broad sweep and content of Article 21". In Kartar Singh v. State Of Punjab., (1994) 3 SCC 569 the Apex Court has observed:
"The concept of speedy trial is read into Article 21 as an essential part of the fundamental right to life and liberty guaranteed and preserved under our Constitution. The right to speedy trial begins with the actual restraint imposed by arrest and consequent incarceration and continues at all stages, namely, the stage of investigation, Inquiry, trial appeal and revision so that any possible prejudice that may result from impermissible and avoidable delay from the time of the commission of the offence till it consummates Into a finality, can be averred".
4. Mallimath Committee has also observed with respect to speedy Investigation and trial in para 16.6.2 as follows:
"16.6.2 The Committee therefore recommends that so far as offences of rape and other sexual offences against women are concerned, a suitable provision should be made requiring the Investigation agency to complete- the investigation within the prescribed time and for the court to dispose of such cases on priority basis within a period of four months."
5. In the Instant case, we record our appreciation for the Rajasthan Police for the prompt action. The accused persons were nabbed without delay and then the investigation was conducted under the supervision of the senior police officers In a scientific manner. The police completed the investigation and laid the charge-sheet within the record time of 36 hours. The learned Magistrate taking cognizance of the offence, acted promptly and committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge (Fast Track) proceeded with the trial expeditiously In accordance with the procedure provided under the Code of Criminal Procedure. The accused persons were represented by competent lawyers. The learned Judge while giving full opportunity to defend the accused persons, has taken care that the process is not abused to delay the trial. As per the report, while the police completed the investigation within 36 hours, the trial concluded within twenty days. To give more details, the incident is of intervening night of 11th and 12th May, 2005; the suo moto action was taken by this court on 13.5.05; the charge-sheet was filed on the same day; the charges were framed after hearing learned counsel for the accused on 16.5.05; the statement of the prosecutrix was recorded on 17.5.05; the cross examination by the defence counsel continued upto 18.5.05; the prosecution examined 21 witnesses and produced documents including memo of identification parade, the medical evidence and the F.S.L. Report.
6. As per the compliance report submitted today by the learned Sessions Judge, Jodhpur, the accused persons viz., Shankerlal and Rakesh have been convicted by the judgment of the learned Additional Sessions Judge (Fast Track) for the offences under Sections 376(2)(g), 3651 366 and 394 IPC. Both the accused persons have been sentenced to imprisonment for life for the offence under Section 376(2)(g) IPC. They have also been sentenced for the allied offences.
ISSUES :
7. Though the trial is concluded, some of the important questions pertaining to such incident i.e. Right of victim of expeditious and scientific investigation, protection and confidence building process of a victim in rape case, victim's right of speedy trial and payment of compensation, are left out. Before we proceed to deal with the relevant issues, it will be apposite to state the factual matrix of the Incident.
FACTUAL MATRIX :
8. Jodhpur, the heritage City of Rajasthan, otherwise considered a calm City with low crime rate, was shocked with the news of an auto rickshaw Driver and his accomplice allegedly raped German tourist. As per the Information, the victim, a German lady aged 47 years arrived In the City of Jodhpur on Wednesday i.e. 11.5.2005. She checked-in a Guest House in the walled city area. In the evening, she went to a hotel viz., Taj Hari for taking dinner. After taking dinner, she hired an auto- rickshaw from outside the said hotel for the Guest House. The driver drove the auto-rickshaw In the opposite direction on Jodhpur-Pali highway. The driver was accompanied by his associate sitting on the corner of the driving seat. It is alleged that they took her to a deserted place near dry bed of Jojari River. Both of them alleged to have robbed and committed rape on her. The screams of the victim attracted the nearby villagers of 'Meghvalon-ki Dhani' The villagers rescued the lady and Informed the police. Police registered the case for offence Under Section 376 IPC and allied offences. The accused persons were nabbed promptly. Recoveries of incriminating articles were made. The test Identification parade was arranged. Statement of the prosecutrix was recorded Under Section 164 Cr.P.C. on 13.5.2005.
NON-DISCLOSURE OF THE NAME OF VICTIM :
9. We do not propose to mention the name of the victim in view of the prohibition provided in Section 228A IPC. Section-228A IPC reads as follows:
"228-A. Disclosure of identity of the victim of certain offence, etc.-(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, Section 376-A, Section 376-B, Section 376-C or Section 376-D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be published with Imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
2) Nothing In Sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is --
a) by or under the order in writing of the officer in charge of the police station or the police officer making the investigation Into such offence acting in good faith for the purposes of such investigation: or
b) by, or with the authorization in writing of the victim; or
c) where the victim Is dead or minor or of unsound mind, by or with the authorization In writing of, the next of kin of the victim Provided that no such authorization shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognized welfare Institution or organization.
Explanation.- For the purposes of this sub-section, "recognized welfare Institution or organization", means a social welfare Institution or organization recognized In this behalf by the Central or State Government.
3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in Sub-section (1) without the previous permission of such court shall be punished with Imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
Explanation.- The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.
10. Thus, Section 228A IPC makes disclosure of identity of victim of offences punishable Under sections 376, 376a, 376b, 376c and 376D. The said provision has been enacted keeping in view the social object of preventing the social victimization or ostracism of the victim of sexual offence. Thus, we have chosen to describe the victim as "foreign tourist lady".
PROVISIONS PERTAINING TO OFFENCE OF RAPE :
11. There is recognition of rights of women starting with United Nation Charter universal declaration of human rights to Convention on Elimination of all forms of Discriminations against Women. The Indian Constitution recognizes gender balance in its equality jurisprudence under articles 14, 15i 16i 19 & 21. Thus, in India gender balance is recognised as basic structure of the Constitution. The Apex Court extending the ambit of Article 21 held that mere existence is not the right to live, it Is a right to live with dignity. It gives the women right to health, right to profession, right to privacy, protection against sexual harassment, right to live with human dignity as part of her right to life. There are awareness movements, statutory bodies to protect the women like National Commission for Women's rights.
12. The crime of rape can be regarded as the highest torture Inflicted upon virginity, youth, motherhood and womanhood Itself. It causes not only physical torture to the body of the woman but at adversely affect her mental, psychological and emotional sensitivity. Therefore, rape is most hatred crime against the very basic human right and violative of the woman's most fundamental right, namely the right to life. It is less a sexual offence than an act of aggression aimed at degrading and humiliating women. Such cases are required to be handled by the courts with utmost sensitivity, high responsibility.
13. "Rape" as per the dictionary meaning is the act of physically forcing a woman to have sexual intercourse: an act of sexual intercourse that is forced upon a woman against her will. There are two essential ingredients of rape under Section 375 IPC. Firstly sexual intercourse by a man with a woman and secondly the sexual intercourse must be under circumstances failing under any of the six clauses in the section. Firstly against her will; Secondly without her consent; Thirdly when her consent Is obtained by putting fear of death in her; Fourthly when the consent given under the belief that another man is her lawfully married husband; Fifthly when consent given by the reason of unsoundness of mind or intoxication etc. and Sixthly with or without her consent, when she is under 16 years of age. Section 376 IPC is the punishing provision for offence of rape. Sections 375 and 376 IPC have been substantially amended by the Criminal Law (Amendment) Act, 1983. By the said Act, new Sections viz; Sections 376A, 376B, 376C and 376D IPC have been introduced. Section 376A punishes sexual intercourse with wife without her consent by a judicially separated husband. Section 376B punishes sexual intercourse by a public servant with woman in his custody. Section 376C IPC punishes sexual intercourse by Superintendent of Jail, Remand Home etc. with Inmates In such institutions and Section 376D punishes sexual intercourse by any member of the management or staff of a hospital with any woman In that hospital. These new Sections were introduced with a view to stop sexual abuses of women in custody, care and control by various categories of persons which though not amounting to rape were nevertheless considered highly reprehensible. The new amended Section 376 IPC now prescribes a minimum punishment of seven years' imprisonment for the offence of rape. For combating the vice of custodial rape, rape on pregnant woman, rape on girls under 12 and gang rape, a minimum punishment of 10 years' imprisonment has been made obligatory. However, for special reasons to be recorded in the judgment, the Court in either case can Impose a sentence lesser than seven or ten years, as the case may be. A further Improvement in the law relating to sexual offences can be found in the provisions of Section 228A IPC, Section 327(2) Cr.P.C. and Section 114A Evidence Act. Consent, by and large, has been viewed as a valid and strong defensive weapon. The defence lawyer in his endeavour to elicit a case of consent hackle and humiliate the woman in the cross examination. Thus, an amendment has been brought in section 114a evidence act which provides for the presumption as to the absence of consent in cases of custodial rape, rape on pregnant woman and gang rape as in Clauses (a), (b), (c), (d), (e) and (g) of Sub-section (2) of Section 376 IPC.
14. It is now well settled by a series of decisions of the Apex Court that the antecedents of a victim Is of no consequence in a case of rape. The trial Courts have been advised by the superior Courts repeatedly not to be a silent spectator, while the victim of the crime is being cross examined by the defence. It must effectively control the recording of evidence in the court. The Court must ensure that through cross examination the victim is not further harassed, humiliated or traumatized.
15. We may refer to a decision of the Apex Court in State of Andhra Pradesh v. Gangula Satya Murthy, J.T. 1996(10) SC 550 the Apex Court held that:
".....Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or Insignificant discrepancies In the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more Important because of late crime against women in general and rape in particular is on the Increase. It Is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation".
CAMERA TRIAL :
16. For upholding decency and dignity of the womanhood the criminal law (amendment) act, 1983 had added sub-sections (2) & (3) in section 327 of the code of criminal procedure providing camera trial for such cases. Sub-section (2) casts a duty on the court to conduct the trial of the case of rape etc. Invariably in camera. The trial in camera would not only be in keeping with the self-respect of the victim but also improve the quality of evidence of the victim. She will not be in an atmosphere of embarrassment, hesitation and shame.
SUO MOTO :
17. The Constitutional adjudication particularly under writ jurisdiction is a subject which has assumed critical Importance in Human Rights protection and governance under the rule of law in recent times. It is settled position of law that the jurisdiction enjoyed by this Court under Article 226 of the Constitution is very wide, as this Court while considering the petition for enforcement of any of the fundamental rights guaranteed under part III of the Constitution or the statutory right or any other rights can not only be declared to be an act ultra vires or beyond the competence of the legislature but has also power to award compensation for violation of the fundamental rights. For the exercise of its jurisdiction, it is not necessary that a person who is victim of violation of fundamental rights, should personally approach to this Court. As observed by the Apex Court in Bodhisattwa Gautam v. Subhra Chakraborty (Ms)., AIR 1996 SC 922 the Court can Itself take cognizance of the matter and proceed suo moto or on a petition by any public spirited individual.
18. As observed In our interim order dated 13.5.2005 taking suo moto cognizance, we have indicated the significance of the incident distinguishing from the ordinary rape case. The incident leaves a question mark on the safety of foreign tourists in our Country which is likely to have larger implications affecting the reputation of the Country adversely, particularly the safety of foreign lady tourists visiting our Country. 1, 9 a case of this character, such a trial cannot be frustrated, by prolongation of investigation.
VICTIMOLOGY :
19. One of the principle objects of the Criminal Justice System is to vindicate the Right to justice of unfortunate victim. Novel concept of victimology is a step towards fulfilling the avowed promises made by our Constitution makers. Thus, the Judicial Administration Mechanism should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. International Human Rights law requires the States to adopt effective measures for the prevention, investigation, prosecution and punishment of sexual violence to ensure Its citizens the highest attainable standard of health and to provide reparations to victims of serious human rights violations.
20. The Mallimath Committee having felt that the system must focus on justice to victims, made recommendations, which includes the right of victim to participate in cases involving serious crimes and to adequate compensation. The Mallimath Committee in its report has observed that, the Criminal Justice System needs to be addressed on an urgent basis. For example, victims of rape and domestic violence etc. require trauma counselling, psychiatric and rehabilitative services apart from Legal Aid. It is further observed that victims often fall prey to intimidation and harassment by offenders which tend to dissuade them from testifying freely and truthfully. Other factors Including the poor financial condition may crop up to make the witness disinterested to state the truth in the Court. The Committee has referred to the victim's rights internationally and In Criminal Justice System. In para 6.9.1, which reads as follows:
6.9.1 Victims of crime are important players in criminal justice administration both as complainant/informant and as witness for the police/prosecution. Despite the system being heavily dependent on the victim, criminal justice has been concerned with the offender and his interests almost subordinating or disregarding the interests of victim. In the civil law systems generally, the victims enjoyed a better status in administration of criminal justice. Towards the last quarter of the twentieth century, the common law world realized the adverse consequences arising from this Inequitable situation and enacted laws giving rights of Participation and compensation to the victims. "Victims" mean the persons or persons who have suffered financial, social, psychological or physical harm as a result of an offense, and includes, in the case of any homicide, an appropriate member of the immediate family of any such person. In the Constitutions of certain countries, rights of victims have been recognized thereby forcing changes in criminal justice goals and procedures. In the United States the Supreme Court ruled that consideration of Victim Impact Statements during sentence hearing was Constitutionally permissible [Payne v. Tennessee, III S. Ct. 2597 (1991)]. This enabled victims to describe the extent of any physical, emotional, or psychological effects caused by the crime. Eventually in U.S., Victim Impact Statements became part of plea bargains and parole hearings.'"
21. Thus, the machinery of Criminal Justice System is also required to put into gear when an offence is registered of sexual violence and then Investigated. This includes protection to the victims, restoration of confidence building measures and the prompt and quality Investigation. Thus, in pursuit of truth, particularly in offence pertaining to the sexual violence, there is urgent need to focus on victim protection law.
22. The victim not only needs physical protection but also the financial, medical, psychological and social support. An attempt be made to build an atmosphere of camaraderie so that the victim gets out of the trauma both physical and mental. In other words, a congenial atmosphere is required to be created by which a victim Is free to speak out without fear or any reservation. Adequate assistance is required to be extended to prepare the victim to face the legal process in the courts. The trial judges are expected to be proactive in intervening during cross examination of female witness, especially where sexist-conduct for Innuendo arises. Where there Is a risk of non-availability of a witness, particularly the victim as in a case of foreign tourist or being intimidated, care be taken that such witnesses are called with utmost urgency to testify her statement. Every chance of such witness leaving the Country without recording the statement must be avoided.
23. In the instant case, a suo moto action has yielded results because of protection to the victim, providing confidence building measures and prompt & quality investigation.
FAST TRACK COURTS :
24. To deal with the long-standing problem of the huge backlog of pending Cases, the Central Government has evolved a Scheme by establishing special Courts in the name of FAST TRACK COURTS. AS far as this Court is concerned, in last four years, the Fast Track Court Administration by method of judicial man power planning and continuous monitoring in the name of "Rationalization of Court cases" has succeeded in achieving exceedingly good results. The Fast Track Courts within four years has not only brought the backlog of 24000 Sessions Cases to NIL but has also enhanced the speed of disposal of Sessions Cases double, to the rate of Institutions. This has significantly brought down the crime rate in the State. The Fast Track Courts have been established with the especially constituted team and special task which has created conducive atmosphere different from routine functioning of the Courts. Needless to say that the Fast Track Courts' disposal has not been at the expense of fairness. The Fast Track Courts have developed new skills and methodology. Judges presiding the Fast Track Courts have been provided training of the Court Management. Today, the Court Management has gained considerable Importance because it has been tried and tested in other parts of the World and has been found to be a successful method of controlling the huge backlog of cases. The Court Management was first Introduced in America in 1972 and over the years, It has gained so much Importance that it has become imperative for all Courts to use court management techniques to reduce the caseload. This has now become a science involving not only Court Management but also case-flow Management, which is the study of the time taken In various stages in litigation. In the Court Management, there has been an emphasis on "procedural activism". In the instant case, the learned Judge presiding the Fast Track Court has successfully managed to conclude the trial in a shortest possible time. It is not the first instance when the Fast Track Court Administration of the High Court has been able to provide justice to the victim at the earliest. We may refer to an incident, wherein a Spanish lady tourist was a victim of rape in the City of Udaipur. It is alleged that on 30th October, 2000, the lady tourist was raped by one Raju alias Rajkumar. The prosecutrix was medically examined on the same day. The accused was arrested on 31.10.2000. Recoveries of incriminating articles were made from the accused on the same day. The police promptly filed a charge-sheet. The statement of the prosecutrix was recorded on 6.11.2000. It is significant to state that the victim was provided protection and her statement was recorded within a week before she could leave the Country. The concept of "Pre-trial Conference" and "bunching of dates" have proved to be very useful in not only accelerating the speed of trial but also the quality of justice. Another significant aspect Is the effort to bring co-ordination between supportive agencies to trial i.e. police, prosecution, Experts i.e. Medical Jurist, Director F.S.L., Department of Justice and Registry of the High Court. Shri Madan Lal Sharma, inspector General of Police, at the relevant time was made incharge of specially created Cell to ensure the production of witnesses during trial in time. We are happy to record our appreciation for Shri Madan Lal Sharma that his effective monitoring made the mechanism of production of witnesses effective, accelerating the speedy criminal justice. The Apex Court in Brij Mohan Lal v. Union of India, 2002(2) SCC p.1 has not only approved the Fast Track Courts Scheme of the Central Government but monitoring the same by continuous mandamus.
25. As to the role of the State Government and High Courts, in management of subordinate Courts, we are reminded of the observations of Berger C.J. as quoted in Brij Mohan Lal's case (supra) as follows:
"A sense of confidence in the courts is essential to maintain the fabric of order, liberty for free people and it is for the subordinate judiciary by its action and the High Court by appropriate control to ensure it."
26. Thus, we are of the view that without accusing the existing Criminal Justice System alone for delay in trial, what is required is the firm commitment on the part of the State to provide requisite infrastructure to the trial Courts and High Courts to manage the functioning of the subordinate Courts effectively in a scientific manner exercising Its supervisory jurisdiction under Article 235 of the Constitution. There is a need to work in coordination, which is unfortunately lacking.
COMPENSATION TO VICTIM :
27. Turning to the question of compensation, It is now well established by a series of decisions of the Apex Court that "right to life does not mean animal existence but means thing more namely the right to live with human dignity'. This was first held by the Apex Court in Francis Coralle Mullin v. The Administrator, Union Territory of Delhi, AIR 1981 SC 746.
28. The Mallimath Committee has also made recommendations as to the compensation for victim. In para 6.8.7 and 6.8.8, the Committee has recommended as follows:
"6.8.7 Sympathizing with the plight of victims under Criminal Justice administration and taking advantage of the obligation to do complete justice under the Indian Constitution in defense of human rights, the Supreme Court and High Courts In India have a late evolved the practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. Medical justice for the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of this liberal package of reliefs and remedies forged by the apex Court. The recent decisions In Nilahati Behera v. State of Orissa [(1993) 2 SCC 746] and in Chairman, Railway Board v. Chandrima Das are illustrative of his new trend of using Constitutional jurisdiction to do justice to victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the State for failure to protect the rights of the victim.
6.8.8 These decisions have clearly acknowledged the need for compensating victims of violent crimes irrespective of the fact whether offenders are apprehended or punished. The principle Invoked Is the obligation of the State to protect basic rights and to deliver justice to victims of crimes fairly and quickly. It is time that the Criminal Justice System takes not of these principles of Indian Constitution and legislate on the subject suitably."
29. In Shri Bodhisattwa Gautam's case (supra), the Court observed as follows:
"Rape is thus not only a crime against the person of a woman (victim), It is a crime against the entire society. It destroys the entire psychology of a woman and pushes her Into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects."
30. In a landmark judgment of the Apex Court in the case of Delhi Domestic Working Women's Forum v. Union of India, (1995) 1 SCC 14, parameters have been laid down under which a case of rape is to be travelled.
31. In P. Rathinam v. Union of India, 1989 Supp(2) SCC 716 the Apex Court laid down the principle of interim compensation to be paid to the victim pending trial. In the said case, the Apex Court directed the State Government to pay a compensation of Rs. 20,000/- to the victim pending trial.
32. In another case State of Maharashtra v. Rajendra Jawanmal Gandhi, AIR 1997 SC 3986 the Apex Court awarded compensation to the victim in a sum of Rs. 40,000/-.
33. A leading case of the Apex Court in this line is Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465. In the said case, a foreign tourist (Bangladeshi) was gang raped at the Howrah Railway Station. The Apex Court upheld the compensation of Rs. 10 lacs awarded by the Calcutta High Court on a petition filed under the label of "P.I.L." by an advocate viz; Chandrima Das. In the said case, the Apex Court has referred to the number of instances, wherein the compensation has been awarded by the Constitutional Courts In India i.e. the Supreme Court and the High Courts In exercise of their powers under Articles 32 and 226 of the Constitution respectively in cases related to the custodial deaths and medical negligence. Reference may be made to (1) Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 (2) State of M.P. v. Shyamsunder Trivedi, (1995) 4 SCC 262; (3) People's Union for Civil Liberties v. Union of India, (1997) 3 SCC 433; (4) Kaushalya v. State of Punjab, (1999) 6 SCC 754; (5) Supreme Court Legal Aid Committee v. State of Bihar, (1991) 3 SCC 482; (6) Jacob George (Dr) v. State of Kerala, (1994) 3 SCC 430 (7) Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37; and (8) Manju Bhatia v. New Delhi Municipal Council, (1997) 6 SCC 370.
34. Thus, the argument that the victim is a foreign national and, therefore, no relief can be granted to her under the public law, is not available for two reasons:
Firstly; on the ground of domestic jurisprudence based on Constitutional provisions; and Secondly; on the ground of human rights jurisprudence based on the Universal Declaration of Human Rights, 19481 which has the international recognition as the 'Moral Code of Conduct' having been adopted by the General Assembly of the United Nations.
35. The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory states and the meaning given to the provisions of those Declarations and Covenants have to be such as would help in effective implementation of those rights. The applicability of the United Nation's Universal Declaration of Human Rights and the principles thereof may have to be read, if need be, into the domestic jurisprudence.
36. Our Constitution guarantees all the basic and fundamental human rights set out in the Universal Declaration of Human Rights, 1948, to its citizens and other persons. These basic human and fundamental rights are enumerated in Part III of the Constitution of India. The nature of the enumerated in Part III are basic In nature. These are the basic human rights without which the development of woman's personality will be in jeopardy.
37. The fundamental rights enumerated in the Constitution are available to all people who are residing within the territory of India of course some fundamental rights are exclusively reserved for the citizens of India only. Article 21 of the Constitution of India ensures right to life and personal liberty to all. The meaning of the word 'life' in Article 21 cannot be narrowed down. According to the tenor of the language used in Article 21, it is available not only to every citizen of the country but also non- citizens. On this principle, any person coming within the country as a tourist or in any other capacity will be entitled to the protection of their fives in accordance with the constitutional provisions. They are also entitled to right to life in this country. Thus, they are having the right to live, so long as they are here, with human dignity. Just as the State is under an obligation to protect the life of every citizen In this country, so also the State is under an obligation to protect the life of the persons who are not citizens but are in the country either residing as a tourist. The fundamental rights under our Constitution are almost in consonance with the rights contained in the Universal Declaration of Human Rights as also the Declaration of Civil and Political Rights and the Covenants of Economic Social and Cultural Rights, to which India is a party, having ratified them. That being so, since 'life' is also recognized as a basic human right in the Universal Declaration of Human Rights, 1948, It has to have the same meaning and Interpretation as has been placed on that word by the Apex Court in its various decisions relating to Article 21 of the Constitution.
38. However, the rights guaranteed under Part III of the Constitution are not absolute. These rights are subject to reasonable restrictions. Therefore, in case of non-citizens also these rights are available subject to such restrictions as may be imposed in the interest of the security of the State or other important considerations. Interest of the nation and security of the State is supreme since the adoption of the Universal Declaration of Human Rights world has undergone many changes. Many political, social and economic changes occurred world wide. The new global menace-terrorism has greatly disturbed the global scenario. Primacy of the interest of the nation and security of the State will have to read Into the Universal Declaration as also in every article dealing with fundamental rights including Article 21.
39. In National Human Right Commission v. State of Arunachal Pradesh and Anr., (1996) 1 SCC 742 the court held that the Indian Constitution confers certain rights on every human being, may be a citizen of this Country or not, which Includes right to life. The Court observed thus:
"We are a Country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person Is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise..."
40. The Gujarat High Court in Ktaer Abbas Habib Al Qutaifi and Anr. v. Union of India and Ors., 1999 Cr.L.J. 919 relying on the Universal Declaration of Human Rights and the Article 33 of the United Nations Convention on the Status of Refugees, held that the protection of human life and liberty is available to refugees, if his activities are not prejudicial to the law and order or security of the Country. The Court also observed that the Member nations are expected to respect such conventions. It was a case of an Iraqi refugee. The Court applied the principle of 'Non- refoulment' which means that no State shall return a refugee to the country where his life may be in danger.
41. In the case of People's Union for Civil Liberties v. Union of India, (1997) 1 SCC 301 the Supreme Court referred to Article 17 of the International Covenant on Civil and Political Rights, 1966 and Article 12 of the Universal Declaration of Human Rights, 1948, so as to derive from Article 21 a right to privacy in India. The court observed In this connection:
"International law today is not confined to regulating the relations between the States. Scope continues to extend. Today matters of social concern, such as health, education and economics apart from human rights fall within the ambit of International law is more than ever aimed at individuals. It is almost an accepted propositions of law that the Rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law."
42. In the instant case, the German tourist is not a citizen of India, but she being a tourist, entitled to all the constitutional rights available to a citizen so far as 'right to life' is concerned. She is entitled to be treated with dignity and is also entitled to the protection of her person as guaranteed under Article 21 of the Constitution. As a national of another country, she cannot be subjected to a treatment which is below dignity, nor could she be subjected to physical violence at the hands of anybody. In this case, it is not merely a matter of violation of an ordinary right of a person, but the violation of fundamental rights is involved.
43. Considering all the facts and circumstances of the case, we consider it appropriate to award a compensation of Rs. 3 lacs to the victim in the instant case, payable by the State Government.
TOURISM :
44. Shri Vinod Zutshi, Commissioner, Tourism, Rajasthan, Jaipur, present in the Court has also apprised us of the Scheme of the State Government providing safety and security to the tourists visiting Rajasthan. A brochure has been placed on record which provides guidelines to the tourists under the head "Do's and Don'ts for Tourists". It is stated that the Tourism Department has created a Tourist Assistance Force to provide awareness about the safety and security of the tourists visiting Rajasthan.
45. Thus, in the above perspective, the Instant Suo Moto Writ Petition is disposed-of as follows:
i. The State of Rajasthan is directed to pay compensation in the sum of Rs. 3 lacs to the victim German tourist referred-to above. The compensation shall be made over to the Embassy for Germany In India for payment to the victim. The payment to the German Embassy shall be made within a period of three months from today;
ii. The State Government is directed to set up an Special Call at the State Level to bring coordination and effective control among supportive agencies for quick and scientific investigation in cases of Sexual Violence. The Officer heading the Cell and Superintendent of Police the Incharge of the District shall ensure that as far as possible, the investigation in such cases Is concluded within a period of one week. All the district superintendents of Police in the State will submit a quarterly report about the investigation of cases of Sexual Violence in their respective district to the Special Cell as directed above. The incharge of the Special Cell will submit consolidated report to the Registrar (Fast Track) of this Court, who, in turn, shall place the same before the Hon'ble Administrative Judge (F.T.) for perusal and necessary directions. The first such report must reach to the Registrar (Fast Track) in the first week of August, 2005;
iii. The Registrar General of this Court is directed to issue appropriate directions to all the Sessions Judges in the State of Rajasthan to ensure that the trial in cases of Sexual Violence is completed within a period of four months (As recommended by Mallimath Committee) from the date of filing the charge-sheet. The respective Sessions Judges will submit a quarterly report about the conduct of trial of cases pertaining to Sexual Violence to, the Hon'ble Administrative Judge (Fast Track) through the Registrar (Fast Track) for perusal and necessary directions. The first such report shall be submitted to the Registrar (Fast Track) in the first week of August, 2005;
iv. The State Government is further directed to prepare an Scheme within a period of one month and give effect-to the same ensuring that -
a. As soon as case of Sexual abuse or violence is reported necessary financial medical psychological and social assistance Is provided to the victim;
b. The atmosphere of camaraderie is built so that victim is helped to get out of trauma, both physical and mental;
c. Where there is a risk of non-availability of witnesses, as in a case of foreign tourist or being Intimidated, steps be taken to get her statement recorded immediately before the trial judge in accordance with the law, before she leaves the Country. Appropriate provision be made for payment of overstay of such victim at a reasonable cost;
v. The Courts trying the offence of Sexual Violence will ensure that -
a. The victim is not harassed by strategies adopted by the accused persons to recall and restate the trauma faced by her for more than once;
b. The statement of the victim shall be recorded positively on the date fixed except for the special recorded reasons;
c. The victim appearing as a witness will be provided accommodation in the Court and she will not be required to wait for long, in any case not beyond two hours;
d. The statement of the witness shall be recorded in an atmosphere conducive to the women speaking freely about the Sexual Violence she faced. Any disrespectful language to victim used by a Court officer including the lawyer shall be construed as a misconduct to be appropriately dealt with by the respective authorities;
vi. The Department of Tourism is directed to provide an Scheme for safety and security of the tourists visiting Rajasthan. The Commissioner, Department of Tourism, will ensure the safety and security of the tourists visiting Rajasthan. He shall submit a compliance report within a period of two months from today;
vii. The State Government Is directed to organize a Workshop in consultation and in joint venture of the High Court, for Fast Track Court Judges, Police Officers, other supportive Agencies to sensitize them of Sexual Offences within a period of three months from today;
viii. We record our appreciation for quick and scientific Investigation conducted by the Rajasthan Police under the leadership of Shri Kalyan Mal Sharma, I.G.P., Jodhpur. The Director General of Police, Rajasthan, Jaipur is directed to record appreciation of the officers concerned In the investigation in their service record;
ix. We also record our appreciation for Shri Madan Lal Sharma, then I.G.P., Rajasthan, for the mechanism provided by him in ensuring the production of witnesses during trial in various Fast Track Courts in the State. The Director General of Police, Rajasthan, is directed to communicate the appreciation to Shri Madan Lal Sharma;
x. We record our appreciation for the enquiry magistrate and the trial Judge for quick trial. The appreciation be recorded in their service record;
xi. Any observations made in the instant order will not have any reflection on merits of the case in the event of appeal being fried by the accused persons against the conviction & sentence;
xii. A copy of this order be forwarded to the Chief Secretary Government of Rajasthan, the Director General of Police Rajasthan Jaipur, the Commissioner Tourism Rajasthan Jaipur, the German Embassy in India at Delhi, the Registrar General of this Court and the National Human Rights Commission New Delhi for necessary action and compliance.
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