The Judgment of the Court was delivered by
N.N Mathur, J.:— Jodhpur the historic City with its appeal of magnificent forts, gleaming sands, bustling City, City Palace with all colours of life, a tradition for “Atithi Devo Bhave” beckons tourists from places near and far. It was this mystical charm attracted a 47 years old Mrs. Petra Wust a German national and an employee with Lufthansa Airlines, and she arrived at Jodhpur on the evening of 11th May, 2005. She checked into a Hotel namely Haveli Guest House inside the walled City. She went out for dinner to a Five Star Hotel and while returning hired Auto-Rikshaw. The Auto-Rickshaw Driver and his associate, instead of dropping her in Hotel, drove to a village on the outskirts of the city and the bank of the Jojari river alleged to have raped. Her screams attracted the villagers on the spot. The two accused fled away. The villagers took the terrified woman to Police Station, where she narrated ordeal. The police immediately swung into action and the Auto Driver was soon nabbed at a Check Post. The other accused was also arrested. The investigation was taken up by young I.P.S Officer Shri Prafulla Kumar, A.S.P He also recorded the statement of the victim. She was shattered psychologically, physically and as such no longer wanted to stay back in India even for a day. The news of the incident flashed in various news papers of 13th May, 2005. Considering that the constitutional courts vested with powers under Article 226 of the Constitution of India can no more be a silent spectator in the matter of violent crimes against women and wait for its turn for dispensation of justice, this Court took suo moto cognizance of the incident and by ad-interim order while directing for speedy investigation also directed the State Government and police authorities to extend psychological, physical and economical assistance to the victim and make her stay comfortable to ensure that she does not leave the country and co-operate in investigation and trial of the case. The Court gave a specific direction to bear the expenses of the victim for her over stay on account of the incident. The operative part of order dated 13th May, 2005 reads as follows:—
“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:—
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.
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.
By ad interim order, the 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.”
2. The incomplete charge-sheet under Section 173(8) Cr. P.C awaiting F.S.L Report in the case was filed on 14th May, 2005. The investigation was complete within 48 hours. It will be relevant to give the chronology of events during investigation in order to show that ordinarily there should not be any reason for delay in such cases:—
12.5.2005 At 05.45 A.M - Both the accused were sent for potency test and biological sample namely semen, blood, saliva, pubic hair, scalp hair, nail scrapping. 8.30 A.M - Examination of scene of crime, lifting of broken pieces of glass, photography, recording of statements of eyewitnesses, who had rescued the victim and provided wearing. 11.15 A.M - Examination of the scene of crime near Taj Hari Hotel from where the victim boarded the Auto. 01.00 P.M - 02.30 P.M - Reinterrogation of the accused. 03.30 P.M - Verification of the scene of crime by both the accused. 04.50 P.M - Both the accused remanded to 15 days judicial custody for identification parade, precaution was taken not to reveal the identity of the accused. 07.00 P.M - Sealed biological and physical samples sent to F.S.L Jaipur for forensic examination 08.00 P.M - Statements of A.S.I Chandi Dan who nabbed accused Shankar and A.S.I Bagru Ram who nabbed Rakesh taken. 13.5.2005 10.30 A.M - Statement of victim under Section 164 Cr. P.C recorded before a Magistrate. 11.30 A.M - Identification parade of the accused before the victim in jail. The victim identifies the two F.S.L Receipt obtained. Identification of the articles recovered from the accused by the victim before magistrate. 11.55 A.M - Challan presented before the Chief Judicial magistrate. Investigation pending u/s 173(8) awaiting FSL Report. 15.5.2005 (a) F.S.L Report. Report showed presence of human semen in Victim's vaginal swab, smear, and pubic hair. Pieces of glass from scene of crime and autorickshaw matched. 16.5.2005 Samples sent for D.N.A Examination. 18.5.2005 Complete Charge sheet presented. Chronology of Trial + 13.5.2005 Chargesheet filed before C.J.M Court. Committed to Sessions Court the same day. 14.5.05- 15.5.05 Court Holiday. 16.5.2005 Case transferred to Fast Track Court from Sessions Court. Charges read out to the accused. Advocate D.N Yadav present from defence side. Summons of witness Petra Wust (victim) and Ashok Kumar R.J.S issued and served. 17.5.2005 Examination in chief of victim Petra Wust completed in presence of Public Prosecutor Pokar Ram and Devi Singh Bhati and defence lawyer D.N Yadav. Complete statement of Ashok Kumar recorded. 18.5.2005 Cross examination of Petra Wust completed. Complete charge-sheet filed. 19.5.2005 Examination in Chief of Prosecution witness A.S.I Ramdev, A.S.I Rawataram and eye witnesses Bhinya Ram and Hemaram. Defence lawyer changed and Advocate Rajendra Saraswat appeared from Defence. 20.5.2005 Cross Examination of the above mentioned witnesses. In addition, Chief and Cross examination of A.S.I Durgaram, A.S.I Chandidan, Ct. Sohan Ram, Govind Singh Charan A.D.M And Ladunath completed. 21.5.2005 Evidence of witness Ct. Sukhdev Ram, HC Ganpatlal, S.I Pana Choudhary completed. Chief Examination of Dr. P.C Vyas and Ram Singh S.I Taken. 23.5.2005 Examination in chief of witness S.H.O Bhanwar Dan and eye witness Badri Ram recorded. 24.5.2005 Cross examination of Bhanwardan, Badri Ram, HC Mahavir Singh and Ram Singh S.I Completed and part examination in Chief of I.O Prafulla Kumar. 25.5.2005 Completed examination in Chief of Prafulla Kumar. Cross Examination of Dr. P.C Vyas. 26.5.2005 Cross examination of I.O Prafulla Kumar completed. Statement of both accused recorded. 27.5.05- 29.5.05 Time taken by the defence lawyer. 30.5.2005 Defence argument presented and completed. 31.5.2005 One defence witness presented. Trial complete.
3. The Additional Sessions Judge (Fast Track), Jodhpur by judgment dated 1.6.2005 convicted both the accused persons of offence under Sections 376(g), 365, 366 & 394 I.P.C and sentenced to imprisonment for life and to pay a fine of Rs. 5000/-. They were also convicted of allied offences. On the same day dealing with the issue involved referring to the significance of speedy & fair investigation and trial and various facets of the aspects of victimology, this Court in Suo Moto v. State reported in RLW 2005 (2) Raj. 1385 issued wide ranging directions 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 Cell 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 chargesheet. 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 filed 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.”
4. Again this Court while noticing the compliance of order dated 1.6.2005 emphasized in change of governance in various segments of criminal justice system i.e police, prosecution and the courts by improving the system, adequate infrastructure with steady progress in information, research, training, monitoring, planning and above all co-ordination. The Court also directed the State Government to take initiative and provide adequate infrastructure for different segments of criminal justice system. The Court also asked the State Government to prepare a scheme providing adequate infrastructure to the different agencies from grass root level to top with proper mechanism of monitoring and co-ordination. The High Court also took initiative and at the first instance asked the District Judges to constitute a core group of selected judicial officers in their districts to examine into the different aspects of courts' infra-structure. After receiving the reports from the District Judges further core groups at State level were constituted to study the reports and make report as to the infrastructure requirements in present judicial set up and courts. We may briefly refer to the reports of the Core Groups:—
“CORE GROUP-I: Restructuring & Rationalizing the staff pattern in subordinate courts:—
Core Group No. 1, headed by Shri N.K Purohit, District & Sessions Judge, Ajmer has pointed out that in number of courts the staff is inadequate while in some courts, the staff is in excess. The Core Group has also considered the requirement of the staff on the basis of the criteria fixed by the Core Group for the purpose. After adjusting the excess staff against the deficit staff, following staff in the State of Rajasthan was found deficient:—
(a) A deficiency of 453 LDC in all judgeships of the State has been reported. For this the core group has relied upon the norms based on the following:—
a-1 Total number of cases (Civil/Criminal) pending in the court. The core group has considered that, taking a overall view, for handling 500 criminal or civil files, one clerk is required.
a-2 leave reserve clerk should be provided in the courts and the strength of such leave reserve clerks may be determined in view of the number of courts in the judgeship(page 25 of the report).
a-3 there is strong need for one clerk exclusively for typing the statement of the witness and the other misc. typing work.
a-4 The Core Group suggested norms for staff pattern of the copying section varying the strength of the courts (page 28 of the report). Like wise staff pattern for Record Section, Mal Khana has also been considered, apart from Establishment Section, Accounts Section and Nazarat Section of the District and other out-lying courts.
(b) The Core Group was also of the view that the District Judges should be provided one Stenographer in addition to the present one PA provided to them, to cope up with the dictation work of the court and the office as well.
(c) The Core Group was of the view that total 4 peons for the courts situated at the District Head-Quarter should be provided while for newly created courts, the strength of 9 peons is being provided which is found to be sufficient (page 26) in the report and have thus reported deficiency of 811 peons.
Based on the above of the Core Group has recommended for creation of the following additional strength of the staff for the Subordinate Courts with the recurring financial liability of Rs. 10.49 Crores per annum:—
1. Stenographer (Additional) 33 2. Stenographer (Reserve/General Pool) 149 3. UDC 1 4. LDC 453 5. Class IV 811 Total 1447
While taking into consideration various aspects of the staff requirement reported by the Core Group, the Committee was of the view that the existing and proposed staffing pattern for the courts needs to be looked into by the Registry of the Hon'ble High Court in the administrative side first as the proposals for strength of staff are generated and justified by them when the same are sent to the Government for financial sanction.
Regarding recommendations pertaining to amendment in the rules for recruitment/service conditions of employees, revision of rules for issuing certified copies and policy for rotation of staff, the committee was of the view that this aspect too should be appraised by the Registry of the High Court.
Core Group-2: Improvement in present pattern of courts buildings:—
Core Group-2 headed by Shri Mahesh Chand Bhagwati, District & Session Judge, Jaipur Distt. Jaipur has examined the aspect of requirement of court buildings for subordinate courts in the State and has given the following details in this regard:—
1. Number of courts in the State of Rajasthan (including District Consumer Forums, Family Courts and Tribunals) 747 2. Number of Courts having no buildings of their own 246 3. Courts functioning in building in shattered condition 97 4. Courts having no chambers of Presiding officers 49 5. Courts having no room for staff to sit 109 6. Courts having no steno room 208 7. Courts with no room for APPs 113 8. Courts having no litigants shed 46 9. Places Mal Khana Room required 41 10. Places where Record Room required 27
The committee considered this report in the wake of the Rajasthan High Court letter dated 8.3.2006, wherein 237 new court buildings are to be constructed requiring financials provision for Rs. 8270.18 lacs (without escalation charges). It has been reported that the State Government has already appreciated the need and budgetary provision of Rs. 15.99 Crore has been made keeping in view the overall fiscal position.
Core Group-3: Equipments, furniture & machinery, etc.
Core Group-3, headed by Shri P.K Bhatia, District and Session Judge, Jaipur City, Jaipur has given its report regarding furniture, equipment and machinery etc. Various requirements such as sofa, furniture, type writers, safe boxes etc. suggested in the report entail financial expenditure of Rs. 32 crores. The committee, while examining the details of the various items required, noted that the Core Group recommended for the requirement of 3663 Typewriters costing Rs. 2.19 crores, Electronic Typewriters numbering 65 costing Rs. 3.29 crores, and Tijori (Safe Boxes) numbering 2064 costing 5.16 crores has been shown for total number of 747 courts. The Committee was of the view that this requirement is required to be rationalized, keeping in view the fact that—
(i) total number of courts are 747;
(ii) the fact that the courts are proposed to be computerized in the near future; and
(iii) Type-writers are likely to become obsolete. As such the availability, repair and maintenance of type-writers is not preferred item in the market place.
The Committee was of the view that these demands need to be viewed and examined by the Registry of Hon'ble High Court in the Administrative side as the Registry too have been placing demands on such items from time to time after assessing the requirements of the subordinate courts.
Core Group-4: Functioning requirement and re-organization, etc., relating the office of Registry.
Core Group-4, headed by Shri Guman Singh, the then District & Session Judge, Jodhpur has given certain suggestions regarding streamlining the working of the Judicial Section and the need of establishing live link between High Court and other State Agencies for exchange of information and coordination through internet and inter connectivity. The requirement of officers and staff for the registry of High Court has also been stated in the reply filed on behalf of the High Court in DB Criminal Civil Misc. 3rd Bail Application No. 649/2005 in DB Criminal Appeal No. 445/2002 and 5 other connected matters. A copy of the relevant pages (page 72-73) of the said report is annexed (Annexure-II). The total number of posts required to be created as per this report is 1380 as against the existing strength of 1036 with the recurring financial liability of Rs. 13.16 Crores per annum. Hon'ble High Court in the aforesaid DB Criminal Appeal No. 445/2002 vide its order dated 19.11.2005 about the aforesaid staff requirement of the High Court has observed as under:—
“The material on record and in particular reports of the office are treated as a petition under Article 226 of the Constitution of India (PIL) for issuing appropriate directions. Let papers of this case be laid before the Hon'ble Chief Justice for constituting the Bench as may meet the pleasure of his Lordship.”
Since the matter is sub-judice under the aforesaid observations of the Hon'ble High Court, the Committee has found itself not in a position to decide as to how it should look into the matter.
Core Group-5: Reformation in Investigating System:—
The core Group-5, headed by Shri C.P Singh, then then Director, Litigation and the report submitted by him has been considered by the Committee. The Committee has prepared a detailed proposal of action taken in this regard which is annexed herewith (Annexure-III & IV). As a pilot project, video conferencing system between Central Jail and the Courts at Jodhpur has already been established and at Jaipur same is being made functional shortly. A copy of the concept paper for up-linking the entire criminal justice system has been placed on record as Annexure-V.”
5. All the reports of the Core Groups were given to the State Government. The Chief Secretary by order dated 9.11.2005 constituted a committee as follows:—
1. Principal Secretary Home Chairman
2. Law Secretary Member
3. Finance Secretary(Expenditure) Member
4. Addl. Director General Police(Crime) Member
5. Director, Prosecution Member
6. Director, Litigation Member
7. Dy. Secretary, Hone(Security) Member Secy.
The Committee also considered the proposal prepared by Director, Forensic Science Lab. and Director, Information & Technology. It was assured that the Forensic Science Laboratory will be completely equipped and mobile units would be made operational latest by 30th September, 2006. Similarly Director, Information and Technology has prepared an action plan for computerization system for monitoring of the criminal justice system. A summary of the action plan has been placed before us as Annexure-II. The same is taken on record. The Committee has also prepared a detailed proposal of action taken with respect to the State. All the detailed proposal of action prepared by different core groups has been placed on record under Annexures III & IV. It is pointed out that a pilot project, video conferencing system between Central Jail and the courts at Jodhpur has already been established and at Jaipur same is being made functional shortly. A copy of the concept paper for up-linking the entire criminal justice system has also been placed on record as Annexure-V.
6. While the directions of this Court are required to be followed in letter and spirit, we have observed that some of the directions have not been followed in true spirit. We may refer to one of the Habeas Corpus Petition being D.B Civil Writ Petition No. 4773/2006 (Ramswaroop v. State of Rajasthan). The said writ petition was filed by one Ramswaroop for the production of his sister Sunita @ Santosh. She was a victim of rape. It is alleged that while she was serving as Office Assistant in the Department of DPEP, Hanumangarh, she was sexually exploited by the Head of the Office namely Onkar Singh R.A.S And his associates Dhanne Singh, Bachhu Singh, Gurudev Singh, Shiv Narain and Milkha Singh. The police registered a case being F.I.R No. 239/2006 at Police Station, Hanumangarh for offence under Section 376(2)(b) I.P.C Her statement under Section 164 Cr. P.C was recorded on 28.4.2006 by the Judicial Magistrate First Class, Hanumangarh. The police filed chargesheet against the said accused persons for offence under Section 376(2)(b) I.P.C An another F.I.R came to be filed on 15.8.2006 by the petitioner Ramswaroop stating inter alia that on 13.8.2006 Dharamvir, mother of Praveen and Babli W/o Dharamvir visited their house and pressurized them to enter into a compromise. When they refused to oblige them a threatening was given of ill consequences. On 15.8.2006 while Sunita @ Santosh was on way to her maternal uncle's house, she was kidnapped. The kidnappers were none else but two of the sons of accused in rape case.
7. Pursuant to the order of this Court Sunita @ Santosh was produced before this Court by the police. It revealed that the accused persons in the rape case had won over her by arranging a job in ICICI Bank and further she was comfortably housed at Jaipur. Thus, her initial reaction was against her own brother and father. This Court while sending her to Nari Niketan directed the Secretary, Department of Home Government of Rajasthan to file a compliance report as to the order of this Court dated 1st June, 2005 passed in Suo Moto Case. It may be recalled that direction was given by this Court to set up a special Cell at the State Level to bring coordination and effective control among supportive agencies for quick and scientific investigation in cases of Sexual Violence. The State Government was also directed to ensure that as soon as a case of sexual abuse or violence is reported, necessary financial, medical, psychological and social assistance is provided to the victim. The Court further directed that a atmosphere of camaraderie is built so that victim is helped to get out of trauma, both physical and mental. The usual ipsi dixit compliance was placed before us i.e circulating the orders of this Court. No efforts were made to ensure the compliance of the orders of this Court in true spirit. If the State authorities had taken care to follow the directions of this Court the unfortunate situation which has arisen of kidnapping Sunita @ Santosh would not have arisen. Full opportunity was given to the accused of the rape case to won over the victim. Thus, this Court in Ramswaroop's case while disposing of the petition vide order dated 20th September, 2006 observed as follows:—
“The prosecution agency in the rape case does not appear to be serious and giving full opportunity to the accused persons to tamper with the prime witness in a rape case.”
8. The court again emphasized that in such cases the State Authorities should be more vigilant and take effective steps to ensure that the prime witness is not tampered with. If timely financial, psychological and social assistance would have been provided to the victim the development which has taken place subsequently could have been avoided. The Court while disposing of the writ petition ordered as follows:—
“(1) The victim Mst. Sunita @ Santosh as per her desire, as already recorded is free to stay with her parents. The Superintendent of Police, Hanumangarh is directed to provide police protection to Mst. Sunita @ Santosh and her family members.
(2) The Superintendent of Police, Hanumangarh is directed to ensure that she remains free from any sort of attempt of the accused persons to temper her.
(3) In order to ensure that she gives statement before the Court free from any sort of influence of defence or the prosecution, following the directions given in Suo Moto's case, we direct the State of Rajasthan to restore her job in the office of DPEP at Hanumangarh. She will be allowed to continue the job in her own name as Santosh. The proceedings against her using the name of Sunita shall not proceed further without permission of this Court. The entire period of her absence will be taken as period in service. She will be paid arrears of the salary of the said period. Her services shall also be protected. In case, there is any serious difficulty to provide her job in the Department of DPEP at Hanumangarh, she may be provided job elsewhere without effecting the status and financial position and the convenience. In the event, the victim is not satisfied with the change, it will be open for her to approach this Court.
(4) The Collector, Hanumangarh will ensure the compliance of this order, including the restoration of her job and payment of arrears. If any correspondence is required to be undertaken with any other authority in the State, it will be his duty to undertake the same and complete the formalities.
(5) The Superintendent of Police, Jodhpur City is directed to provide police protection to corpus Sunita @ Santosh for her safe passage until her custody is handed over to the Superintendent of Police, Hanumangarh.”
9. It was reported that the above direction of this Court has not been complied with. A contempt petition has also been filed in that regard. The Collector, Hanumangarh has filed an affidavit stating that the directions of this Court have been complied with. The prosecutrix has been paid the arrears of salary in the sum of Rs. 26,000/-. The appointment in service has also been arranged for her. It is a matter of satisfaction for us that the State has promptly complied with the directions of this Court. In fact it is not simply compliance of the order of this Court but it is the matter of attitude. Such reaction of the State Government will go long way in administration of justice. At this stage, we make it clear that though the Suo Moto case popularly known as German Lady Rape Case has been highlighted from the point of expeditious trial, but in fact from our point of view the important aspect of the case is, the advancement of law on Victimology. The expression of the prosecutrix in the German Lady Case as appeared in one of the News Paper is a matter of great satisfaction for this Court. The attitude as exhibited by positive action of the State is a Mile-Stone on way to advancement of law of Victimology. The State has every reason to feel proud. The reaction of the victim in German Lay case is extracted as follows:—
“I am really scared. I just want to go back. However, I am very thankful to the police and judiciary. I want them(rapists) to be punished hard. I know it is easy to forgive but being the first of its kind a harsh punishment might be able to stop this.”
10. Questions were raised as to the treatment given to a foreign lady and denial in the identical circumstances to Indian Woman Folk. The compliance in Ramswaroop's case is a answer to such doubts expressed in certain corners. We are of the view that there is no purpose of enacting law after law and pronouncing judgment after judgments in defence of dignity and protection of human life particularly with respect to offences against women, if the implementation is in the hands of a justice system, particularly the role of the executive which is not sensitive or their reacting instinct has been killed.
11. At this stage, we may also refer to one of the leading case on Victimology i.e Birju Ram & Anr. v. State Of Rajasthan & Ors. reported in 2006 Cr. L.J 1794 : 2006 (3) RLW 2090, wherein the Court observed:—
“It emerges from the above narration that Mst. Bagtu and her family members have primarily suffered at the hands of extra constitutional Institutions like Jati or caste or community or village panchayat. The instant case, may be, one out of thousands of unreported suffering of women. Of course, media has covered, some incidence like Imrana, Gudia etc. These Jati Panchayats are guided by caste taboos. The Jati Panchayats gives verdict against women for breaking caste - taboos and directs bar-barious punishments. The Members of Assembly abets and become executors. The perpetrators of the crime do not allow the law to take its course. Public opinion is sought to be formed in favour of the caste taboos and against the women resulting into punishment of victim and protection of criminals. Anti-social people, criminal and brokers with the help of muscle power money enters in such Jati Panchayat and exploits the situation for their benefits monetary or otherwise. If such cases are closely analysed, the act constitutes an offence of kidnapping for ransom etc. punishable under Section 364-A, I.P.C People do not have a courage to stands against the Caste Panchayat. Even the so called social or political workers play their role under the pressure of Jati Panchayat for the sake of votes at all levels i.e Election of the Gram Panchayat, Assembly or Parliament. The Academicians also play role misdirecting the issue by asking a debate on personal law or customs. Arguments are advanced that these are social problems and will vanish with the economic developments. It is well settled that the customs or traditions in conflict with the basic rights of citizens, cannot be given preference. Some times the protection of such customs and traditions are given in the name of freedom of religion without understanding that it is not absolute. It is subject to public order, morality and health and other provision of the Constitution, which includes the gender equality and right of women to make a choice about her personal life. In the case of rape, physical integrity of women is destroyed. No amount of introduction of religious text and their purported interpretation can justify and inhuman action. The basic principle of justice in the civilized society is that a person committing crime is punished and not the victim. Indeed, the victim is compensated and rehabilitated. Apart from the fundamental right of a women of right to life, to live with dignity free from cruel degrading treatment, there is also a duty cast on every citizen by Article 51(e) of the Constitution to renounce practices derogatory to the dignity of women. It must be realized that the security of a women is essentially a law and order problem, which is the State subject. In discharge of its constitutional obligation, the State cannot take plea of helplessness in the name of tradition.
It is unfortunate that an individual or a caste group or personal relations or may be for other reason enjoy patronage and takes the criminal to such a level of notoriety that they consider that law cannot reach to them. It is only the vigilant State and strong judiciary by their pro-active role can send a message to the society that the patronage culture will no more be able to protect them.”
12. In this context, the question is to be posed, if the rule of law has not polluted by money or other clout? Governance generally means exercise of political, administrative and economic power in the management of public affairs. Only a Government, which is transparent, accountable, participatory, committed to rule of law, showing due regard to human rights and above all sensitive and functional can claim good governance. Rule of law envisages constitutional values, such as constitutionalism, absence of arbitrary power in the government, liberty of people, an independent judiciary. The relevance of the governance with reference to the human rights, powers of the State machineries to be exercised in a manner to prevent arbitrary exercise of powers, promote policies designed to enhance availability of food, education, children welfare and protection to the citizens. For the good governance one of the most important organ is the judicial system. The common man has faith in judicial system of this country irrespective of the fact that it carries the tag of failure to provide justice expeditiously. There are various reasons attributed among which management failure is prominent. The Government at the Centre or the State level need to assume responsibility to ensure that the courts are equipped with necessary infra-structure, including modernized technology equipments and requisite trained persons. The existing courts at various places presently set up lack of essence of basic infra-structure. In this context, it would be appropriate to refer to the observation of this Court made in D.B Civil Writ Petition No. 6073/1993 - Mahendra Lodha v. State:—
“We are alive of the fact that any appropriate direction in this regard will involve a burden on the State exchequer but at the same time, it cannot be forgotten that in a democratic polity, the role of judiciary is indispensable. The efficient functioning of the rule of law under the aegis of which our democratic Country can thrive, requires an efficient, strong well equipped, enlightened judiciary and to have it that way, the Nation has to pay the price. We are tempted to quote George Washington—
“True administration of justice is the finest pillar of good government.”
13. We may also refer to a decision of the Apex Court in P. Ram Chandra v. State reported in (2002) 4 SCC 578, wherein the Court reminded the State and the Central Government to its constitutional obligation to strengthen the judiciary qualitatively and quantitatively by providing requisite funds, manpower and infrastructure. The most important is to improve the management system of various segments of Criminal Justice System. There is also a need to bring co-ordination between different segments of Criminal Justice System i.e courts, prosecution and police.
14. In view of the aforesaid, we do not consider it necessary to further monitor the matter and dispose of the same as follows:—
(I) The State Government is directed to take effective steps in co-ordination with the High Court taking the benefit of the various reports of the Study Groups to equip the courts at the grass root level by providing the adequate infrastructure, if possible with the information technology more particularly keeping in view the directions of the Apex Court in P. Ram Chandra's case (supra).
(II) It is directed that the State Government will take steps to effectively deal with, to eliminate incidence of all forms of violence against women physical and mental, whether at domestic or societal levels, including those arising from customs, traditions or accepted practices.
(III) It is further directed that the State Government shall create and strengthen institutions and mechanisms/schemes for prevention of such violences, including sexual harassment at work places and customs like dowry, for rehabilitation of the victims of violence and for taking effective action against the perpetrators of such violence.
(IV) The mechanism will be evolved to regularly review all sorts of crimes against women, their incidence, prevention, investigation, detection and prosecution. Such a review will be taken at the State as well as District Level.
(V) Women's Cells in Police Stations, Women Police Stations, Family Courts, Counselling Centres, Legal Aid Centres and Nyaya Panchayats be strengthened and expanded to eliminate violence and atrocities against women.
(VI) It is also directed to review curriculum and educational materials to include gender education and human rights issues.
(VII) Steps be taken to remove all references derogatory to the dignity of women from all public documents and legal instruments.
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