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Sunday, April 27, 2014

Art.32 of Constitution - direction to register FIR under sec.376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the arrest of the accused and for their prosecution after investigation of the case by the Central Bureau of Investigation as the police failed to do - in reply it was found that case was registered and accused were arrested - Apex court closed the case = NISHU ... PETITIONER(S) VERSUS COMMISSIONER OF POLICE, DELHI & ORS. ... RESPONDENT (S) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41458

 Art.32 of Constitution - direction to register FIR under sec.376-C, 376-D, 376(2)(n) of the Indian  Penal  Code;  for  the arrest of the accused and for their prosecution after investigation  of  the
case by the Central Bureau of  Investigation as the police failed to do  - in reply it was found that case was registered and accused were arrested - Apex court closed the case =

This writ application under  Article  32  of  the  Constitution  seeks
directions from the Court  for  registration  of  first  information  report
under Sections 376-C, 376-D, 376(2)(n) of the Indian  Penal  Code;  for  the
arrest of the accused and for their prosecution after investigation  of  the
case by the Central Bureau of  Investigation.   Appropriate  action  against
the officers of  the  Delhi  and  Haryana  police  by  way  of  departmental
proceedings  for  their  refusal/failure  to  register  the  FIR  under  the
aforesaid sections of the Indian Penal Code as well  as  the  provisions  of
The Protection of Children from  Sexual  Offences  Act,   2012  (hereinafter
referred to as ‘the POCSO Act’) has also been prayed for.=
initially FIR  No.  319/2013  dated  26.10.2013  was  registered  at  police
station Kalanaur, District Rohtak under Sections 363, 366A and 120-B of  the
Indian Penal Code on the written complaint of the father of the  petitioner.
 On the  basis  of  the  investigations  carried  out  by  the  police,  the
petitioner  was  recovered  from  village  Sirol,  Sector-18,  Gurgaon   and
produced before  the  Duty  Magistrate  (Judicial  Magistrate  First  Class)
Rohtak on 9.11.2013.  Her statement, which was to the effect that  ‘she  had
herself  left  the  house’,  was  recorded  by  the  learned  Magistrate  on
9.11.2013.  The respondents 2 and 3 have further  stated  that  subsequently
the petitioner desired to make a further statement which was refused by  the
learned Magistrate, Rohtak on two occasions i.e. 13.11.2013 and  29.11.2013.
 As the petitioner persisted with the said request  another  statement  made
by her was recorded under Section 164 Cr.P.C. by the learned  Magistrate  on
30.11.2013 wherein she had implicated the accused persons in the  commission
of rape during the period of her alleged confinement.   In view of the  said
statement of the petitioner, Section 376-D of  the  Indian  Penal  Code  and
Sections 4/6 of the POCSO Act were added to the FIR No. 319/2013  which  was
already registered.  According to the Superintendent of Police,  Rohtak  all
the nine accused persons have been arrested and are in custody.=
   Shri Rakesh K. Khanna, learned Additional Solicitor General  appearing
for the first respondent has submitted that no order  or  direction  to  the
first respondent would be justified in view of the fact that  the  case  has
been registered by the Haryana Police  and  has  been  investigated  by  the
authorities of the State of Haryana.  Shri  Ankit  Swarup,  learned  counsel
for  the  respondents  2  and  3  has  submitted  that  on   completion   of
investigation chargesheet has been filed against all the  nine  accused  who
are in custody and  are  presently  lodged  in  Rohtak  Jail.   It  is  also
submitted that charges have been framed  by  the  Trial  Court  against  the
accused inter alia under Section   376-D IPC and Section 4/6  of  the  POCSO
Act; in  fact,  according  to  the  learned  counsel,  the  trial  has  also
commenced in the meantime.

8.    In view of what has been  stated  by  the  Superintendent  of  Police,
Rohtak in the counter affidavit filed on 8.1.2014  and  as  chargesheet  has
been filed against all the nine accused and the trial has commenced  in  the
meantime it will be wholly inappropriate to exercise our jurisdiction  under
Article  32  of  the  Constitution.   The  allegations   and   apprehensions
expressed in the writ petition are not borne out by  the  subsequent  facts,
as stated on behalf of the respondents 2 and 3, which are not disputed.   In
view of the above, we will have no occasion  to  pass  any  order  save  and
except that the  trial  against  the  accused  persons,  which  has  already
commenced, be concluded by the Trial Court with utmost expedition.  We  make
it clear that we have not expressed any opinion on the merits  of  the  case
of the respective parties.  Beyond the above, no further direction  will  be
called for or justified.

9.    The writ petition consequently stands disposed of in the above terms.
2014 ( April.Part ) judis.nic.in/supremecourt/filename=41458
P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

                            NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION
                  WRIT PETITION (CRIMINAL) NO. 211 OF 2013


NISHU                             ...    PETITIONER(S)

                                   VERSUS

COMMISSIONER OF POLICE,
DELHI & ORS.                            ...  RESPONDENT (S)


                               J U D G M E N T

RANJAN GOGOI, J.

1.    This writ application under  Article  32  of  the  Constitution  seeks
directions from the Court  for  registration  of  first  information  report
under Sections 376-C, 376-D, 376(2)(n) of the Indian  Penal  Code;  for  the
arrest of the accused and for their prosecution after investigation  of  the
case by the Central Bureau of  Investigation.   Appropriate  action  against
the officers of  the  Delhi  and  Haryana  police  by  way  of  departmental
proceedings  for  their  refusal/failure  to  register  the  FIR  under  the
aforesaid sections of the Indian Penal Code as well  as  the  provisions  of
The Protection of Children from  Sexual  Offences  Act,   2012  (hereinafter
referred to as ‘the POCSO Act’) has also been prayed for.

2.    The facts, in short, are as follows.

      The petitioner, who is represented by  her  father,  claims  to  be  a
minor (17-1/2 years) and a resident of  village  Sundana,  Tehsil  Kalanaur,
District  Rohtak.   According  to  the  petitioner,  she  was  kidnapped  on
25.10.2013 by a group of  nine  persons  who  had  kept  her  confined  upto
8.11.2013.   It is alleged that during the  aforesaid  period,  the  accused
persons, in different combinations, had repeatedly raped her  and  that  one
of the accused, named, Pradeep  is  a  constable  in  Haryana  Police.   The
petitioner claims that after her recovery from  village  Sirol,  Sector  18,
Gurgaon,  Haryana  on  8.11.2013  she  was  produced  before  the   Judicial
Magistrate First Class, Rohtak for recording  her  statement.   As  she  was
under threat and intimidation she did  not  level  any  allegation  of  rape
against the accused.   The  petitioner  alleges  that  despite  her  medical
examination by the doctor on 10.11.2013, a copy of  the  report  of  medical
examination was not furnished to her; neither was any FIR under Section 376-
D of the Indian Penal Code or the provisions of  the  POCSO  Act  registered
against the accused persons who have been named  in  para  18  of  the  writ
petition. It may be noted at this stage that  the  aforesaid  writ  petition
was  filed  on  29.11.2013  seeking  the  reliefs  earlier  noted  alongwith
direction for payment of compensation to the petitioner and her family.

3.    The respondent No. 1 i.e. Commissioner of Police, Delhi has  filed  an
affidavit  stating  that  inquiries  have  revealed  that  initially  a  FIR
(319/2013) under  Sections  363/366A  dated  26.10.2013  was  registered  in
Police Station Kalanaur, District Rohtak, Haryana on the  written  complaint
of the father of the petitioner.  It is further stated that on the basis  of
the statement made by the victim  before  the  learned  Judicial  Magistrate
First Class, alleging commission of rape by the  accused  named  by  her,  a
case has been registered and the accused persons  have  been  arrested.   As
the  matter  is  under  investigation  by  the  Haryana  Police,  the  first
respondent has contended that no order/direction  is  warranted  insofar  as
the said respondent is concerned.

4.    Respondents 2 and 3 have filed an affidavit on  8.1.2014  through  the
Superintendent of Police, Rohtak.  In the said affidavit it is  stated  that
initially FIR  No.  319/2013  dated  26.10.2013  was  registered  at  police
station Kalanaur, District Rohtak under Sections 363, 366A and 120-B of  the
Indian Penal Code on the written complaint of the father of the  petitioner.
 On the  basis  of  the  investigations  carried  out  by  the  police,  the
petitioner  was  recovered  from  village  Sirol,  Sector-18,  Gurgaon   and
produced before  the  Duty  Magistrate  (Judicial  Magistrate  First  Class)
Rohtak on 9.11.2013.  Her statement, which was to the effect that  ‘she  had
herself  left  the  house’,  was  recorded  by  the  learned  Magistrate  on
9.11.2013.  The respondents 2 and 3 have further  stated  that  subsequently
the petitioner desired to make a further statement which was refused by  the
learned Magistrate, Rohtak on two occasions i.e. 13.11.2013 and  29.11.2013.
 As the petitioner persisted with the said request  another  statement  made
by her was recorded under Section 164 Cr.P.C. by the learned  Magistrate  on
30.11.2013 wherein she had implicated the accused persons in the  commission
of rape during the period of her alleged confinement.   In view of the  said
statement of the petitioner, Section 376-D of  the  Indian  Penal  Code  and
Sections 4/6 of the POCSO Act were added to the FIR No. 319/2013  which  was
already registered.  According to the Superintendent of Police,  Rohtak  all
the nine accused persons have been arrested and are in custody.

5.    We have heard Mr. R.K. Kapoor, learned  counsel  for  the  petitioner,
Mr.  Rakesh  K.  Khanna,  learned  Additional  Solicitor  General  for   the
respondent No. 1 and Mr. Ankit Swarup, learned  counsel  for  respondents  2
and 3.

6.    Learned counsel for the  petitioner  has  vehemently  urged  that  the
petitioner, after being recovered from village  Sirol,  Sector-18,  Gurgaon,
Haryana on 8.11.2013, was unlawfully detained in  the  police  station  till
her statement was recorded by the learned Judicial  Magistrate  First  Class
on 9.11.2013.  It is further submitted that offences  under  the  POCSO  Act
have been committed against the petitioner in addition to the offence  under
Section 376-D of the Indian Penal Code.   Despite  the  seriousness  of  the
matter the investigation, it is alleged, has not been conducted  impartially
which would justify appropriate intervention of the Court.

7.    Shri Rakesh K. Khanna, learned Additional Solicitor General  appearing
for the first respondent has submitted that no order  or  direction  to  the
first respondent would be justified in view of the fact that  the  case  has
been registered by the Haryana Police  and  has  been  investigated  by  the
authorities of the State of Haryana.  Shri  Ankit  Swarup,  learned  counsel
for  the  respondents  2  and  3  has  submitted  that  on   completion   of
investigation chargesheet has been filed against all the  nine  accused  who
are in custody and  are  presently  lodged  in  Rohtak  Jail.   It  is  also
submitted that charges have been framed  by  the  Trial  Court  against  the
accused inter alia under Section   376-D IPC and Section 4/6  of  the  POCSO
Act; in  fact,  according  to  the  learned  counsel,  the  trial  has  also
commenced in the meantime.

8.    In view of what has been  stated  by  the  Superintendent  of  Police,
Rohtak in the counter affidavit filed on 8.1.2014  and  as  chargesheet  has
been filed against all the nine accused and the trial has commenced  in  the
meantime it will be wholly inappropriate to exercise our jurisdiction  under
Article  32  of  the  Constitution.   The  allegations   and   apprehensions
expressed in the writ petition are not borne out by  the  subsequent  facts,
as stated on behalf of the respondents 2 and 3, which are not disputed.   In
view of the above, we will have no occasion  to  pass  any  order  save  and
except that the  trial  against  the  accused  persons,  which  has  already
commenced, be concluded by the Trial Court with utmost expedition.  We  make
it clear that we have not expressed any opinion on the merits  of  the  case
of the respective parties.  Beyond the above, no further direction  will  be
called for or justified.

9.    The writ petition consequently stands disposed of in the above terms.




                                       ...…………………………CJI.
                                        [P. SATHASIVAM]




                                        .........………………………J.
                                        [RANJAN GOGOI]





                                                       …..........……………………J.
                                        [N.V. RAMANA]
NEW DELHI,
APRIL 24, 2014.
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