Judgment
1. The petitioners and all the intervening applicants in these matters have raised concern with regard to the manner in which a 19-year-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. Writ Petition (Crl.) No. 296 of 2020 was initially taken on board by this Court and notice was ordered 2020 SCC OnLine SC 888 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.
2. The details of the other applications and writ petitions are as follows:
Petition/Intervening applications Applicant/Petitioner Prayers Criminal MP 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. IA 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 Criminal MP No. 102148 of 2020 Citizens for Justice and Peace through Secretary Seeking intervention and directions for: 1. Transfer of the investigation to CBI. 2. Protection of witnesses by Central Paramilitary Forces. 3. Appointment of a retired Judge of SC to investigate the circumstances which led to the cremation of the victim. Criminal MP No. 105463 of 2020 Radhika Vemula & others Praying for the following directions: 1. Transfer of all connected cases of gang-rape and death from U.P. to Delhi Special Court. 2. Constitution of SIT for investigation into the gang-rape and death tragedy in order to avert political interference. 3. Restraining the respondents from conducting polygraph test, narco-analysis or brain mapping on the victim's family. 4. Protection to victim's family and other witnesses. 5. Directing respondents to strictly implement the SC
& ST (Prevention of Atrocities) Act, 1989. IA No. 103488 of 2020 By Members of the Delhi High Court and the Supreme Court Bar Association Seeking orders for: 1. Constitution of SIT to investigate the gang-rape and murder case under the Court's own monitoring. 2. Providing adequate protection to the witnesses. 3. Transfer of trial from U.P. to SC/ST Special Court in Delhi subject to consent from the victim's family. 4. Appointment of a Senior Advocate as special prosecutor under Section 15 of the SC/ST Act, 1989 IA 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 of 2020, etc. Letter petitions received through email by citizens For appropriate directions being sought for by SC in the gang-rape and murder case. D. No. 54893 of 2020, etc. Letter petitions received through email/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. Criminal 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 towards 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.
Criminal MPs Nos. 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 U.P. Police. Criminal 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 (Cri) No. 304 of 2020, Chandra Bhan Singh v. State of U.P. Petitioner/Chandra Bhan Singh Prayer for: 1. Mandamus for investigation of the role of R3-R7 for mishandling of body of the victim. 2. Direction to the investigating agency to get statement of the mother, father and brother of the victim before the Magistrate and if the allegations made by the family are true to register FIR against the guilty. Connected: WP (Cri) No. 308 of 2020, Sushma Motilal Maurya v. State of U.P. Connected: Petitioner/Sushma Motilal Maurya 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 (Cri) No. 314 of 2020, Public Mail v. Union of India Petitioner/Public mail through its publisher Praying for the following directions: 1. Mandamus to R to fix the responsibilities of the police officials who burnt the girl in midnight and to punish them. 2. Transfer the case to Delhi from Hathras. 3. Direction to R to make special forum or frame guidelines for such rape in future.
WP (Cri) No. 316 of 2020, Chetan Janardhan Kamble v. Union of India Petitioner/Chetan Janardhan Kamble Petition seeking direction to: 1. Register offence under Sections 166-A, 193, 201, 202, 203, 212, 217, 153-A and 339 IPC and Sections 3(2) and 4 of the SC and ST Act, 1989 against the government officials involved in destruction of evidence. 2. Investigation by Special Task Force (excluding CBI and U.P. Police). 3. Deposit all the evidence including videos collected at Safdarjung Hospital for examination by independent forensic lab. 4. Direction granting protection by CRPF to the witnesses and members of the family of victim pending investigation.
3. For a brief narration shorn of unnecessary details and to note the nature of the relief sought, the petition in WP (Crl.) No. 296 of 2020 is referred. In the writ petition filed under Article 32 of the Constitution the petitioners are praying that the Union of India and authorities concerned 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.
4. The case as put forth is that a 19-year-old girl, resident of Hathras Village in Uttar Pradesh was brutally gang-raped. 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.
5. 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.
6. 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 1-10-2020 2020 SCC OnLine All 1088 and ordered registration of the suo motu petition being PIL (C) No. 16150 of 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.
7. 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 sister-in-law 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 (In-charge) of Police Station Chandpa has been made in-charge 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.
8. The affidavit also indicates that the investigation by 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 CBI to be conducted under the supervision of the Court and on 10-10-2020 CBI accepted the request of the State and has started investigation in respect of the crime, on 11-10-2020. The orders dated 1-10-2020 and 12-10-2020 passed by the High Court and the fact that the High Court has been apprised that the investigation by CBI was in progress is stated therein.
9. In addition to hearing Mr Tushar Mehta, learned Solicitor General who appeared for the State, Mr Harish N. 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.
10. Though various contentions were urged, the undisputed fact is that the investigation has in fact been entrusted by the State Government itself to CBI on 10-10-2020 and 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.
11. Though the petitioners had sought and the respondent State also through their affidavit had indicated that this Court can monitor the same, as already referred to above, PIL (C) No. 16150 of 2020 has been registered in the Allahabad High Court, Lucknow Bench, suo motu pursuant to its order dated 1-10-2020 2020 SCC OnLine All 1088. 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 sister-in-law 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.
12. Insofar as the protection to the victim's family and the witnesses is concerned, 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.
13. 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.
14. On the aspect relating to the investigation, since we have indicated that the High Court would look into that aspect of the matter, 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.
15. 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 of 2020 relating to the incident regarding which the investigation is to be conducted by 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, Respondent 2 (Chief Secretary, State of U.P.) in WP (Crl.) No. 296 of 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.
16. Insofar as the transfer of the case to Delhi as sought by the petitioners/applicants is concerned, 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 the investigating agency to complete the investigation and in any event since the local police have been divested of the investigation and 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.
17. 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 2020 SCC OnLine All 1120 passed by the High Court in PIL (C) No. 16150 of 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.
18. In terms of the above observations and directions, the writ petitions and applications stand disposed of. No costs.
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