Satyama Dubey & Ors. v. Union of India & Ors.

JUDGMENT 1. The petitioners and all the intervening applicants in these matters have raised concern with regard to the manner in which a 19 years old girl hailing from Hathras, Uttar Pradesh is alleged to have been rap ed, brutally assaulted; due to which she lost her life and also the manner in which she was cremated. The Writ Petition (Crl) No.296/2020 was initially taken on board by this Court and notice was ordered to the respondents returnable in a week. In the meanwhile, the remaining petitions and the applications were filed in respect of the same incident to seek for varied reliefs which are all ultimately in pursuit of a fair investigation and bring to justice the culprits. 2. The details of the other applications and writ petitio ns are as follows: SATYAMA DUBEY & ORS. v. UNION OF INDIA & ORS. Petition/Intervening Applications Applicant/Petitioner Prayers Cr. M.P. No. 10597 of 2020 Ramu alias Ram Kumar Intervention Application seeking indulgence of Court for ordering CBI investigation or formation of SIT to investigate the matter under a sitting or retired Justice of SC or HC. Further, transfer of trial to Delhi is prayed for. I.A. No. 10 1799 of 20 20 All India W om en Conference (NG O) thro ugh its G eneral Secretary M s. Kuljeet Kaur Pray er for im pleadm ent as necessary party in the array of petitioners Crl. M .P. No. 102 148 of 2020 Citizens for Justice and Peace through Secretary Seeking intervention and direction s for: 1.Transfer of the inv estigation to CBI 2.Protection of witnesses by central para m ilitary forces 3.Appointm en t of a retired Judg e of SC to investigate the circum stances wh ich led to the crem ation of the victim . Crl. M .P. No. 105 463 of 2020 Radhika Vem ula &Ors. Praying for follo wing direction s: 1.Transfer of all co nnected cases of gang-rape and death from U.P. to D elhi Special Court 2.Constitution o f SIT for investigation into the g ang-rape an d death tragedy in order to av ert political interference 3.Restraining the respondents from co nducting polygrap h test, narco-analysis or brain m apping on the victim ’s family 4.Protection to victim ’s family and oth er witnesses. 5.Directing respondents to strictly im plem ent SC & ST (Prevention of Atrocities) Act, 19 89 523 I.A. No. 103488 of 2020 By Mem bers of Delhi High Court and Supreme Court Bar Association Seeking orders for: 1. Constitution of SIT to investigate the gang-rape and murder case under the Court’s own m onitoring 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. Appointm ent of a Senior Advocate as special prosecutor u/s 15 of the SC/ST Act, 1989 I.A. No. 106081 of 2020 Satendra Kum ar Application seeking impleadment as respondent in WP (Crl.) No. 296 of 2020 or in the alternative seeking permission to intervene in the said m atter. Diary No. 55441/2020, etc. Letter p etitions received through E-Mail by citizens For Appropriate directions being sought for by SC in the gang-rape and m urder case D.No. 54893/2020, etc. Letter petitions received through e-m ail/by post For Appropriate directions being sought for by SC in the gang-rape and m urder case IA No. 105728 of 2020 Applicant/Shobha Gupta Intervention Application seeking permission to intervene to m ake appropriate submissions and suggestions as the m atter is of extrem e importance. Crl MP No. 105362 of 2020 Applicant/Rashtriya Dalit BachaoAndolan Through its President O.P Shukla and Others  Application for Impleadment as he him self belongs to the SC comm unity and direction to R to ensure dignified crem ation of all the victims of crime and no discrimination to be made toward SC, ST, OBC  Direction for investigation against the officials who were responsible for crem ation and illegal detention of the family m embers to be m onitored by this Hon’ble Court. SATYAMA DUBEY & ORS. v. UNION OF INDIA & ORS. Crl M P No. 105 452 of 2020 Applicant/M unnokaSam udayaSam rakshanaMunn ani through its President Application for intervention seeking an investigation in the case ag ainst the accused and into the alleged lapses in the adm inistration into the case. W P(Crl) No. 304 of 2020 Chandra Bhan Singh vs State of U P and Others Connected: W P(Crl) No. 308 of 2020 Sushma M otilal M aurya vs State of UP and Others Petitioner/Chandra Bhan Singh Connected : Petitioner/ Sushm a M otilal M aurya Pray er for ; 1. M andam us for investigation of the role of R3-R7 for m ishandling of body of the victim 2. Direction to the Investigating agency to get statem ent of the Mother, father and brother of the victim before the m agistrate and if the allegation m ade by the family are true to register FIR against the guilty. Connected: Direction to take cognizance, constitution of the HC m onitored Investigation, inquiry and suspension of the erring police, m edical etc trying to m anipulate the evidence, charges to be fram ed against police who were responsible for crem ation of the Victim. W P (Crl) No. 314 of 2020 Public m ail through its publisher vs Union of India and Others Petitioner /Public m ail through its publisher Praying for following directions: 1. M andam us 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 D elhi from Hathras 3. Direction to R to m ake special forum or fram e guidelines for such rape in future. W P (Crl) No. 316 of 2020 Chetan Janardhan Kamble Vs Union of India and Others Petitioner/ Chetan Janardhan K am ble Petition seeking direction to: 1. Register offence u/s 166-A, 193 ,201, 202, 203, 212, 217,153A and 339 of the IPC and 3(2) and 4 of the SC and ST Act 1989 against Govt officials involved in destruction of evidence 525 Petition/Intervening Applications Applicant/Petitioner Prayers Cr. M .P . N o. 10597 of 2020 Ramu alias R a m K umar Interventio n A pp lic atio n see king in du lgenc e of Court for orde rin g C B I investigat io n or formation of SIT to investigate the ma tter unde r a sitt ing or re tire d Justice of SC or H C . Further, transfe r of tria l to D elh i is prayed for. 3. For a brief narration shorn of unnecessary details and to note the nature of the relief sought, the petition in W.P.(Crl.) No.296/2020 is referred. In the Writ Petition filed under Article 32 of the Constitution of India the petitioners are praying that the Union of India and concerned authorities be ordered to conduct a fair investigation; if nee d 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, res ident of Hathras village in Uttar Pradesh was brutally gang-raped. The m anner in which she was assaulted is referred to in the petition. Though she was shifted to Safdarjung Hospital in Delhi, she breathed her l ast and she was cremated in the middle of the night without the pres ence of her family members. Considering the manner in which the entire in cident 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 interventi on applications are relating to the same incident though diff erent 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 SATYAMA DUBEY & ORS. v. UNION OF INDIA & ORS. stage, it was noticed that the Allahabad High Court, Lucknow Be nch having taken note of the incident hadpassed a detailed o rder dated 01.10.2020 and ordered registration of the suo moto petition being PIL(C)No.16150/2020. In that circumstance this Court was of the prima facie view that the petitions filed before this Court need not be entertained at this stage since the jurisdictional High Court was seized of the matter. However, Ms. Indira Jaising, learned Senior Counsel while intervening on behalf of the intervening advocates had raised concern wit h 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 reques ted 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 Hat hras, Uttar Pradesh have been provided protection under a three-fold pr otection 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 an d it is further stated that the Inspector (In-charge) of Police StationChandpa 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 briefi ngs to the police force and to inform the family members about t he 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 t he family as their private advocates. 8. The affidavit also indicates that the investigation by t he CBI would be conducted under the supervision of the Court in a time bound manner. The Director General of Police, State of Uttar Prade sh has also filed an affidavit indicating that the State Government it self has sought investigation by the CBI to be conducted under the supervision of the Court and on 10.10.2020 the CBI accepted the request of the State and has started investigation in respect of the crime, on 11.10.2020. The orders dated 01.10.2020 and 12.10.2020 passed by the High Court 527 and the fact that the High Court has been apprised that the investigation by the 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 Salve, learned S enior Counsel for DGP and Smt. Seema Kushwaha on behalf of the family members of the victim as also the other learned cou nsel 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 submiss ion made by Mr. Sidharth Luthra, learned senior counsel who sought to appear on behalf of the accused to contend that the legal right avail able 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 entruste d by the State Government itself to the CBI on 10.10.2020 and the CBI has s tarted investigation in respect of the crime on 11.10.2020. There fore, the apprehensions expressed by the petitioners/applicants that there would be no proper investigation if the Uttar Pradesh Police c onducted the same would not remain open for consideration at this stage and the grievance to that extent stands redressed. Though the petiti oners had sought and the respondent-State also through their affidavit had indicated that this Court can monitor the same, as already referred to above, a PIL(C)No.16150/2020 has been registered in the Allahabad High Court, Lucknow Bench, suo moto pursuant to its order dated 01.10.2020. From the order passed by the High Court it is noticed that the High Court has adequately delved into the aspects relating to the case to secure fair investigation and has also secured the presence of the fa ther, mother, brother and sister-in-law of the victim and appropriate orders are being passed, including securing reports from various qua rters. 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 proc eedings/ investigation. That apart, the incident having occurr ed 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 i n 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. SATYAMA DUBEY & ORS. v. UNION OF INDIA & ORS. 11. Insofar as the protection to the victim’s family and the witnesses, the limited purpose for which this Court had directed notice and sought for an affidavit; the affidavit as filed no doubt indicates that sufficient steps have been taken by the State Government to p rovide protection. Ms. Indira Jaising, learned Senior Counsel wouldhowever, 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. 12. 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 a ddress the normal perception and pessimism which cannot be said as be ing 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 d irect that the security to the victim’s family and the witnesses shall be provided by the CRPF within a week from today. 13. On the aspect relating to the investigation, since we have indicated that the High Court would look into that aspect of the matter, the CBI shall report to the High Court in the manner as would be directed by the High Court through its orders from time to time. On the request of Ms. Indira Jaising, learned senior counsel for appointment of a Special Public Prosecutor we see no need to pass any specific order. This is an aspect which could be considered by the High Court in the light of the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the circumstance wherein the family members of the victim have chosen to engage Ms. Seema Kushwaha and Mr. Raj Ratan, Advocates, they would consider these aspects and make request on behalf of the victim in accordance with law if such need arises. 14. Therefore, without expressing any opinion on the merits of the rival contentions, all aspects of the matter are l eft open to be considered by the High Court in PIL(C) No.16150/2020 relating to the incident regarding which the investigation is to be conducted by the CBI and also with regard to the grievance put forth alleging illegal cremation. 529 With regard to the protection to the victim’s family and wi tnesses,the respondent No.2 (Chief Secretary, State of U.P) in WP(Crl) No.29 6/ 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 t o provide the same and shall report the same to the High Court. 15. Insofar as the transfer of the case to Delhi as sought by the petitioners/applicants, Ms. Seema Kushwaha, learned counsel for the victim’s family indicated that the need for transfer would arise after the investigation is complete. On this aspect we are also of the view that it would be appropriate for investigating agency to complete the investigation and in any event since the local police have been d ivested of the investigation and the CBI is carrying out the investigation there would be no room for apprehensions at this stage. However, the iss ue 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. 16. Before parting, we take note of the submission of the learned Solicitor General about the name and relationship of the family members with the victim being depicted in the face of the order dated 12.10.2020 passed by the High Court in PIL(C) No.16150/2020. Sinc e 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. 17. In terms of the above observations and directions, the wr it petitions and applications stand disposed of. No costs. Kalpana K. Tripathy Petitions and applications dispo sed of. SATYAMA DUBEY & ORS. v. UNION OF INDIA & ORS.