caselaws
Supreme Court of India
Rashmi Behl vs State Of U.P & Ors on 17 February, 2015Author: M.Y.Eqbal
Bench: M.Y. Eqbal, Shiva Kirti Singh
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (Crl.) NO. 218 OF 2013
Rashmi Behl …..Petitioner(s)
versus
State of Uttar Pradesh and others …..Respondent(s)
J U D G M E N T
M.Y.Eqbal, J.
Petitioner, a young girl of 22 years who hails from the State
of Uttar Pradesh, has filed this writ petition under Article 32 of the
Constitution of India for the enforcement of her fundamental rights
guaranteed under Articles 14 and 21 of the Constitution of India inasmuch
as even though her FIR was registered on 21.1.2013 neither statements of
the petitioner or her witnesses had been recorded nor her medical
examination under Section 164A of the Criminal Procedure Code had been done
by the Uttar Pradesh Police despite repeated notices and reminders sent to
the authorities. Petitioner has alleged to the extent that she was
abducted, repeatedly assaulted and raped by her own father and his
accomplices for not accepting their demand to enter the flesh trade in
which her family is actively involved.
2. The writ petition before us shows that the ordeal of the petitioner
began in the year 2010 when the father and her family alleged to have
started coercing her to join the flesh trade/prostitution. Upon realizing
petitioner’s unwillingness, father and the family tried to sell her off to
an elderly man of about 65 to 70 years in Punjab. Upon becoming aware of
the nefarious designs of the accused persons, petitioner somehow managed to
escape from her parental home in Meerut and escaped to Haridwar, from where
she was brought back by some Samaritans to the office of DIG Meerut, where
she narrated her ordeal. Petitioner was sent to the custody of her parents
with a stern warning, which was not complied. As such, she was then given
into the custody of Ms. Asha Madho, who was an ex-teacher of the
petitioner. However, in the midnight of 1/2.9.2011 in the absence of the
custodian, her parents along with their relatives with police assistance
said to have forcibly took her away. Thereafter, petitioner complained to
the Police that she was held in captivity by her father and anything can
happen to her in such circumstances. Taking action on the said letter, the
SHO produced the petitioner before the City Magistrate on 5.9.2011, where
the petitioner stated that she was a major and should be allowed to stay
free as per her wishes and her custody should not be given to her father
and family. Father of the petitioner also moved an application before the
City Magistrate stating that his daughter was mentally unstable on which an
order was passed to refer the petitioner to a hospital for mental medical
examination, in which she was declared mentally sound. The City Magistrate
passed an order giving the custody of the petitioner to Ms. Asha Madho. It
was also ordered that Ms. Asha Madho will produce the petitioner before the
Court as and when required.
3. Aggrieved by the order, father of the petitioner preferred a Revision
Petition before the Additional District Judge, Meerut seeking custody of
the petitioner. Petitioner was produced before the court and when being
asked about her choice, she refused to go with her father and told the
court that her father had earlier raped her and wanted to sell her. By way
of a letter Ms. Asha Madho showed her unwillingness to take custody of the
petitioner on the ground of her own sickness and criminal background of
petitioner’s parents. Hence, the petitioner further showed her desire to
go along with Ms. Aparna Gautam, sister-in-law of Ms. Asha Madho. On
15.10.2011, the Additional District Judge partly allowed the revision
petition and set aside order dated 16.9.2011 regarding the custody of the
petitioner being given to Ms. Asha Madho and held that the petitioner
being an adult is free to reside wherever she decides to live.
4. It is alleged by the petitioner that after the Court had risen,
accused persons forcibly dragged her out of the Court and took her to
various places within Meerut and thereafter to Ludhiyana, Punjab, and
throughout this period the petitioner was repeatedly assaulted and raped by
her father and his accomplices. Subsequently, in November 2011, Mrs.
Aparna Gautam filed a writ of Habeas Corpus before the Allahabad High
Court. Consequently, the petitioner was produced before the High Court on
16.1.2012, where she gave details of assault, rape and abduction. On
30.1.2012, consequent to petitioner’s statement, learned Single Judge of
the High Court disposed of the writ petition setting her at liberty to go
anywhere including the opportunity to go along with Mrs. Aparna Gautam.
5. On several occasions the petitioner tried to lodge a FIR with regard
to abduction, repeated assault and rape while she was in illegal custody of
the respondents. On 16.1.2013, the petitioner wrote a complaint to the SSP
Meerut, Uttar Pradesh for registering her FIR against the respondents. On
21.01.2013, finally FIR No.31/2013 was registered against the respondents
under Sections 366, 323, 504 and 376 of IPC at Lisadi Gate Police Station,
Meerut instead of Civil Lines Police Station.
6. Mr. P.H. Parekh, learned senior counsel appearing for the petitioner,
contended that all the relevant sections applicable to the present case
have not been applied by the police and neither statement of the petitioner
had been recorded nor medical examination was done as per mandate of
Section 164A, Cr.P.C. Since no action had been taken by the police against
the named accused nor any security had been provided to the petitioner
despite grave and imminent threat to her life and liberty and she being not
in a position to approach Allahabad High Court by way of writ petition
under Article 226, the petitioner has approached this Court seeking
indulgence under Article 32 read with 142 of the Constitution of India.
7. We have elaborately heard learned counsel for the parties. Mr. P.H.
Parekh, learned senior counsel appearing for the petitioner, submitted that
the petitioner was first abducted from the house of the custodian Ms. Asha
Madho and second time from the court premises with the active connivance of
the police officials. The accused persons are influential people and
certain police officers (who are also named in FIR) are also actively
involved with the family. The influence of the father and family is so
much that although the petitioner was abducted from the Court premises
situated under the jurisdiction of Civil Line Police Station, Meerut, yet
the accused managed to get the FIR recorded not in the Civil Line Police
Station but at the Lisadi Gate Police Station, Meerut, within jurisdiction
of which most of the accused reside.
8. Mr. Parekh further contended that due to the influence of the accused
persons, the investigation in the case has not even begun, which has
resulted in disappearance of material evidence including medical
examination report under 164A of Cr.P.C. which ought to have been done
after being raped. Learned senior counsel further contended that accused
persons are roaming free influencing and delaying investigation and
threatening witnesses and have been on the look out of the petitioner since
the date of lodging of the FIR forcing the petitioner to be in hiding under
imminent threat to her life and liberty. On account of this, the
petitioner is hiding in Delhi, but is prevented from freely going out in
Delhi or going to place of lodging of FIR (Meerut) and it has forced her to
knock the doors of the Apex Court by hiding her in Delhi.
9. After the notice was served upon the respondents, learned counsel for
the State of Uttar Pradesh and other respondents appeared and the matter
was heard. From the side of the petitioner, it was submitted that no steps
have been taken for recording the statement of the petitioner under Section
164, Cr.P.C. Whereas learned senior counsel appearing for the State of
Uttar Pradesh contended that despite all efforts, the petitioner is not
making her appearance for the purpose of recording statements. Hearing
submissions, this Court vide order dated 30.1.2015 directed the
petitioner/prosecutrix to appear before the Chief Judicial Magistrate,
Saket Courts, Saket, New Delhi along with her photograph and one person to
identify her on 31.1.2015 so that her statement shall be recorded by the
Chief Judicial Magistrate, who shall forward the same to this Court.
10. In compliance of the aforesaid order, the petitioner appeared before
the Chief Judicial Magistrate and her statement was recorded and the same
was forwarded to this Court. We have gone through the statement made by
the petitioner before the Chief Judicial Magistrate. In her statement, she
has made serious allegations against her father allegedly committing rape
since 2007. She also stated that when she was residing with her Asha Madam,
her parents along with many persons including Police personnel (which did
not have any lady police) forcibly took her away from there to the Police
Station, from where she was handed over to her parents. She stated that
her parents used to misbehave with her. She has also stated that on
15.10.2011, after the decision of the Magistrate declaring her major and
could reside at her will, her aunt Anjana Malik and Ranjana Vasudeva
dragged her outside Court, where more than 15 persons were present
including her father Ravinder Behl, Safar Borga, Ravinder Singh, Advocate,
Tarun Behl, Reeta Behl, Roma Behl, Sanjay Aggarwal, Dharamveer Narang,
Inderjeet, Harvinder Singh, Harsh Behl, Rakesh Vasudeva and all of them
including police personnel took her dragging up to the main door of the
Court and put her in white colour Santro Car, which had been driven by
Pawan Malik.
11. In her statement she has alleged that she was kidnapped and taken to
the house of her aunt (Bhuwa) and then to the house of Harsh Behl, where
she was abused and her father forcing her for prostitution told that in
their business goods once sold is never taken back and they are bound to
hand it over dead or alive. Harsh Behl stated to her that they would have
also kidnapped Aparna Gautam if gathering would not have saved her.
Thereafter, Harsh Behl raped her. She has also alleged sexual assault by
Dharamveer Narang, Constable Dayashankar, DIG Prem Prakash, Manish Mishra,
Sunny Ahuja, Deshraj Ahuja, Tilak Narang and Toofan alias Raj Kumar. She
amended her statement saying that name of Manish Mishra was taken by
mistake as he was not present there and the name of the man was Dr. B.P.
Ashok. She has also alleged that on 17.10.2010 Inderjeet and Harvinder
raped her in the presence of Preety Khurana and Urmila Kathuria, who did
not save her despite repeated prayer. Thereafter, she was taken to
Ludhiyana, where as alleged by her, father used to rape her. Upon filing
of Habeas Corpus petition by Aparna Gautam, she was produced by her parents
in the High Court, where she stated that she did not want to go with her
parents since she was being raped by her father and his accomplices. She
has also alleged that when Aparna Gautam had gone to DIG with a request
letter to meet petitioner, DIG physically assaulted her and when she was
conversing with Media at the Commissioner Square, she was taken away by the
police and implicated her in false case and was also imprisoned. She has
submitted that many I.Os. have changed and despite various letters written
by her, no I.O. turned up even on 18.3.2014, when she was sitting in the
Chambers of her advocate in the Saket Courts. However, when her advocate
had gone to attend other case, her parents entered into the Chamber and
threatened her to keep quite. She stated that her Parvikar Aparna Gautam
is being harassed since she helped her.
12. As noticed above, as against the order passed by the City Magistrate
on 5.9.2011, before whom the petitioner has stated that she was a major and
should be allowed to stay free as per her wishes, the father of the
petitioner filed a revision petition before the Additional District
Judge,Meerut seeking custody of the petitioner on the ground that she was
mentally unstable. The Additional District Judge by setting aside the
order of the City Magistrate regarding custody of the petitioner being
given to Mrs. Asha Madho held that the petitioner being an adult is free to
reside where she decides to live. The City Magistrate, before passing the
aforesaid order, got the petitioner medically examined in which she was
declared mentally sound. The Additional District Judge in revisional order
had observed that the father of the petitioner made a false statement that
the petitioner was mentally unfit.
13. A perusal of the counter affidavit filed on behalf of Respondents
nos.1 to 4 – State of Uttar Pradesh, Director General of Police, Deputy
General of Police and Senior Superintendent of Police would show that after
the case was registered being Crime Case No.31/2013, one Rajbir Singh, SI
Lisadi Gate Police Station, Meerut, was entrusted with the case for
investigation. So far the serious allegations made by the petitioner
against the respondents including the police officials are concerned, it is
stated in the counter affidavit that those allegations are subject matter
of investigation. Admittedly, no action was taken against the persons who
have allegedly committed crime. On the basis of complaint, in March, 2013,
the investigation was entrusted to another SI Janak Singh Pundir, SIS Cell,
Meerut. Two months thereafter, the said I.O. Janak Singh was transferred
and in his place one Pramod Kumar Singh, S.I., Crime Branch, Meerut was
entrusted with the case for investigation in June, 2013. Again in August,
2013, the investigation was entrusted to another SI Yogender Dikshit, Crime
Branch, Meerut. It is stated in the counter affidavit that the
Investigating Officer was transferred from Crime Branch to Police Station
Durala, District Meerut. This itself shows that the allegations made by
the petitioner in the FIR followed by several complaints was never taken
seriously by the police authorities and in a routine manner the
investigation was entrusted to SI police one after another. Moreover, the
respondents in the counter affidavit tried to justify the reason for not
taking steps for the purpose of recording the statement of the petitioner
victim under Section 164, Cr.P.C. and also failure in medically examining
the petitioner as required under Section 164A of the Code of Criminal
Procedure.
14. One cannot ignore the fact that still, a class of women is
trapped as victims of circumstances, unfounded social sanctions,
handicaps and coercive forms in the flesh trade, optimised as
`prostitutes’. The victims of the trap are the poor, illiterate and
ignorant sections of the society and are the target group in the flesh
trade; rich communities exploit them and harvest at their misery and
ignominy in an organised gangsterism, in particular, with police
nexus. It is of grave social concern, increasingly realised by
enlightened public spirited sections of the society to prevent gender
exploitation of girl children.
15. Having regard to the facts, sequence of events and inordinate delay
in the investigation of the case, it would show that the investigation by
the State police authorities is not being conducted in a proper direction.
More than two years have passed but the police failed to conclude the
investigation, which itself goes to show that police have not acted in a
forthright manner in investigating the case. Prima facie the police has
acted in a partisan manner to shield the real culprits and the
investigation of the case is not being conducted in a proper and objective
manner. Since local police is allegedly involved as per the statement of
the petitioner recorded under Section 164, there may not be fair
investigation. In R.S. Sodhi vs. State of U.P., 1994 Supp (1) SCC 143,
this Court in such a case observed that however faithfully the local police
may carry out the investigation, the same may lack credibility since the
allegations are against them.
16. Taking into consideration the entire facts of the case and very
serious allegations made against all the respondents including police
officers, it is a fit case where the investigation has to be handed over to
an independent agency like CBI for the purpose of fair and unbiased
investigation.
17. We, therefore, allow this petition and direct the Central Bureau of
Investigation to investigate the case independently and in an objective
manner and to conclude the same in accordance with law.
…………………………….J.
(M.Y. Eqbal)
…………………………….J. (Shiva Kirti Singh)
New Delhi
February 17, 2015
ITEM NO.1B COURT NO.11 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Criminal) No(s). 218/2013
RASHMI BEHL Petitioner(s)
VERSUS
STATE OF U.P & ORS Respondent(s)
[HEARD BY HON’BLE M.Y.EQBAL AND HON’BLE SHIVA KIRTI SINGH, JJ.]
Date : 17/02/2015 This petition was called on for judgment
today.
For Petitioner(s) Mr. P.H. Parekh, Sr. Adv.
for M/s. Parekh & Co.
For Respondent(s) Mr. Dinesh Kr. Tiwari, Adv.
Mr. Amit Srivastava, Adv.
Mr. Pavitra Mohan Sharma, Adv.
Mr. Chandan Vir, Adv.
for Mr. Praneet Ranjan,AOR
Mr. Som Raj Choudhury, Adv.
for Mr. Abhisth Kumar,AOR
Ms. Ranjana Narayan, Adv.
for Mr. B.V. Balaram Das, AOR
Hon’ble Mr. Justice M.Y.Eqbal pronounced the judgment of the
Bench comprising His Lordship and Hon’ble Mr. Justice Shiva Kirti Singh.
The writ petition is allowed in terms of the Reportable
judgment, which is placed on the file.
(Parveen Kr. Chawla) (Indu Pokhriyal)
Court Master Court Master
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