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Wednesday, February 18, 2015

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.

                                                                  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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