Mohammed Harron -vs- Union of india

 

 

 

MOHAMMED HAROON –VS- UNION OF INDIA

[(2014 5 SSC 252]

ABSTRACT

Petitioners belong to the minority community who were brutally gang raped and sexually assaulted by men belonging to the other communities during the communal violence in Muzzafarnagar and adjacent districts. Also, their homes were destroyed and they were rendered homeless with no roof over their heads. They lost their earnings due to which it became very difficult for them to take care of their children and themselves. Due to the stigma attached to the victims of sexual violence, the agony of gang rape and looming fear of future assault, the petitioners were unable to promptly report the crime of gang rape committed against them. Petitioners also added that they had been displaced from their villages, namely, village Fugana and village Lakh, hence, they could not go to the police station to lodge the complaint of gang rape.

FACTS OF THE CASE

Rape victims (Seven) filed instrument Petition (Criminal) No. 11 of 2014 for defense of their right to life under Article 21. All the petitioners belong to the minority community  were viciously gang raped and sexually maltreated by men happiness to the opposite communities throughout the communal violence in Muzzafarnagar and adjacent districts. It’s the assertion of the petitioners during this petition that their homes were destroyed and that they were rendered homeless with no roof over their heads, they lost their

earnings and it's become troublesome for them to require care of their youngsters and themselves. Due to the stigma connected to the victims of sexual violence, the agony of gang rape and looming worry of future assault, the petitioners were unable to promptly report the crime of gang rape committed against them. It’s the stand of the petitioners that they'd been displaced from their villages, namely, village Fugana and village large integer; hence, they might not attend the police headquarters to lodge the grievance of gang rape. It  was additionally submitted that in these circumstances, the delay on the part of the petitioners

in lodging FIR is affordable and doesn't, in any way, impact on the truthfulness of their complaints of gang rape.

It is additional explicit by the petitioners that once registration of FIR below Section 154 of the Code of Criminal Procedure, 1973 and recording of statements below Section 161, the law prescribes that below Section 164(5A) of the Code, for all sexual offences as well as crime of rape, the police shall have the statement of the lady against whom the offence has been committed recorded before a Judicial official as shortly because the commission of offence is delivered to the notice of the police. it's explicit that albeit Petitioner Nos. 1, 3, 4, 5 and half-dozen had lodged the FIRs in September, 2013 and Petitioner No. 2 had lodged the FIR in early October, 2013, the police deliberately and with jugal bone fide intention dragged the investigation. Their statements below Section 164(5A) of the Code were recorded as late as in December, 2013 once the delay of just about 3 months. It’s additionally highlighted that Section 164A of the Code provides for check-up of the rape victim associated casts a

statutory duty upon the police to send the lady creating the grievance of rape to a registered health care provider inside twenty-four hours from the time of receiving data relating to the

commission of such an offence. Within the case of the petitioners, in direct dispute of this legal provision, the police wittingly delayed their check-up. The petitioners are all married

ladies having kids; hence, their check-up virtually 20-40 days once the incidents of gang rape is unlikely to produce any perpetrated proof. Its additional detected that the petitioners were

gang raped on September 8, 2013 whereas the check-up was conducted between September 29, 2013 to October 18, 2013. It is the grievance of the petitioners that FIRs of all the petitioners were registered below Section 376D of the Indian Penal code, 1860 a particular provision about gang rape. Although Section 376(2)(g) of the IPC is squarely applicable to the crimes of gang rape that are committed against the petitioners throughout the communal violence in September, 2013, the police has specifically omitted to incorporate Section 376(2)

(g) of the IPC so as to dilute the case of the petitioners and to exclude the legal presumption that the law raises through Section 114A of the Indian Evidence Act, 1872 in favour of the petitioners. Therefore, the petitioners submitted that biased and driven investigation by the police is evident and manifest and through with the only real purpose of defending the suspect.

ISSUES

I. Whether the State is required to protect rights of the victims?

II. Whether the State is required to take measures for rehabilitation of victims?

Plea of the Plaintiff

In the case of Petitioner No.7, in spite of specific info, there's no reason on why FIR wasn't registered. It absolutely was solely throughout the hearing before this Court, on February 13, 2014, once the counsel for Petitioner No.7 bimanual over the copy of the grievance to the counsel for the State, FIR was registered on February 18, 2014. Further, it's the grievance of the petitioners that FIRs of all the petitioners were registered under Section 376D of the Indian Penal Code, 1860 a selected provision with reference to gang rape. Although Section 376(2)(g) of the IPC is squarely applicable to the crimes of gang rape that are committed

against the petitioners throughout the communal violence in September 2013, the police has specifically omitted to incorporate Section 376(2)(g) of the IPC so as to dilute the case of the

petitioners and to exclude the legal presumption that the law raises through Section 114A of the Indian Evidence Act, 1872 in favour of the petitioners. Therefore, the petitioners submitted that biased and driven investigation by the police is evident and manifest and finished the only purpose of protecting the defendant. It is more submitted that although Petitioner Nos. 1-6 named total 22 men as defendant in six FIRs, solely in Gregorian calendar month 2014, one defendant, namely, Vedpal, was named in FIR No. 120 of 2013 was in remission. Even once lapse of 4 and 0.5 months, 21 named as defendant by the petitioners of the flagitious crime of gang rape throughout communal violence cast free. Neither those persons neither were in remission nor are any proceedings initiated under Section 83 of the Code. The petitioners claimed within the petition that the defendant area unit roaming free and enjoying the support of dominant community, Khap panchayat, political parties and

besides thanks to their closeness, they are additionally discouraging the victims. Thus, it's the stand of the petitioners that unless the police provide protection to the victims and witnesses, it might be not possible for them to depose against the persons concerned within the gang rape. The petitioners have additionally controversial the claim of the State in disbursing

compensation. It absolutely was declared that they weren't paid compensation a lot of less the adequate compensation. Further, a prayer was created for transfer of cases of gang rape outside the State of U. P. within the larger interest of the society and so as to confirm honest investigation, prosecution and trial of the cases with reference to Petitioner Nos. 1 to 7.

Finally, they declared within the petition that if the investigation is not transferred to sit down comprising the officers of integrity from the States aside from U. P., there can't be justice for sexual violence suffered by them because of inaction on a part of the State of U. P. The prayers looked for by the petitioners within the said petitions area unit bushed a way or alternative seeking for social control of basic rights secure under the Constitution and it is the Constitutional obligation of this Court to intervene and admonish such violation of human rights and issue applicable orders for rehabilitation whereas at the same time issue directions

to confirm that no return of this nature is witnessed by this country in times to return.

Plea of the Defendant

Learned Attorney General apart from reiterating the stand taken in their affidavit assured this Court that the Government of India is fully committed to provide all required financial assistance as well as security measures for the immediate and permanent relief to the stranded and affected persons. Dr. Rajeev Dhawan, learned senior counsel appearing for the State of U.P., after taking us through the various steps taken by them also assured this Court

that apart from the steps taken by the State, they are taking further steps for providing food, water, shelter and medicines to all those affected persons. He also assured us that the State

Government is taking effective steps for peaceful resettlement of those stranded persons.

Rape victims (Seven) filed legal document Petition (Criminal) No. 11 of 2014 for defence of their right to life under Article 21. All the petitioners belong to the minority community were viciously gang raped and sexually mistreated by men. It’s the assertion of the petitioners during this petition that their homes were destroyed and that they were rendered homeless with no roof over their heads, they lost their earnings and it's become tough for them to require care of their kids and themselves. it's more pleaded that thanks to the stigma hooked up to the victims of sexual violence, the agony of gang rape and looming worry of future assault, the petitioners were unable to promptly report the crime of gang rape committed against them. it's the stand of the petitioners that they would have been displaced from their villages, namely, village Fugana and village hundred thousand, hence, they might not head to the police headquarters to lodge the grievance of gang rape. It absolutely was more submitted

that in these circumstances, the delay on the part of the petitioners in lodging FIR is affordable and doesn't, in any way, impact on the truthfulness of their complaints of gang rape. It is more declared by the petitioners that once registration of FIR under Section 154 of the Code of Criminal Procedure, 1973 and recording of statements under Section 161, the law prescribes that under Section 164(5A) of the Code, for all sexual offences as well as crime of rape, the police shall have the statement of the girl against whom the offence has been committed recorded before a Judicial justice as shortly because the commission of offence is dropped at the notice of the police. it's declared that even Petitioner Nos. 1, 3, 4, 5 and 6 had lodged the FIRs in September 2013 and Petitioner No. 2 of had lodged the FIR in early October 2013, the police deliberately and with jugal bonafide intention dragged the investigation. Their statements under Section 164(5A) of the Code were recorded as late as in

Gregorian calendar month, 2013 once the delay of just about 3 months. It’s additionally highlighted that Section 164A of the Code provides for medical of the rape victim, casts a statutory duty upon the police to send the girl creating the grievance of rape to a registered medical man among twenty-four hours from the time of receiving data relating to the commission of such an offence. Within the case of the petitioners, in direct resistance of this

legal provision, the police wittingly delayed their medical. The petitioners are all married ladies having kids; hence, their medical nearly 20-40 days once the incident of gang rape is unlikely to produce any perpetrated proof. It is more recognized that the petitioners were gang raped on September 8, 2013 whereas the medical was conducted between September 29, 2013 to October 18, 2013. Within the case of Petitioner No.7, in spite of specific data,there's no reason on why FIR wasn't registered. it absolutely was solely throughout the hearing before this Court, on February 13, 2014, once the counsel for Petitioner No.7 two handed

over the copy of the grievance to the counsel for the State, associate degree FIR was registered on February 18, 2014 Further, it's the grievance of the petitioners that FIRs of all

the petitioners were registered underneath Section 376D of the Indian Penal Code, 1860 a particular provision concerning gang rape. Though Section 376(2)(g) of the IPC is squarely applicable to the crimes of gang rape that are committed against the petitioners throughout the communal violence in September 2013, the police has specifically omitted to incorporate Section 376(2)(g) of the IPC so as to dilute the case of the petitioners and to exclude the legal presumption that the law raises through Section 114A of the Indian Evidence Act, 1872 in favour of the petitioners. Therefore, the petitioners submitted that biased and driven investigation by the police is obvious and manifest and through with the only real purpose of defending the defendant. it's more submitted that though Petitioner Nos. 1-6 named total

twenty-two men as defendant in six FIRs, solely in February 2014, one defendant, namely, Vedpal, United Nations agency was named in FIR No. 120 of 2013 was in remission. Even once lapse of 4 and 5 months, twenty-one named as defendant by the petitioners of the flagitious crime of gang rape throughout communal violence swan free. Neither those persons neither were in remission nor are any proceedings-initiated under Section 83 of the Code. The petitioners claimed within the petition that the defendants are roaming free and enjoying the support of dominant community, Khap panchayat, and political parties and besides owing to their closeness, they're additionally discouraging the victims. Thus, it's the stand of the petitioners that unless the police offer protection to the victims and witnesses, it would not be possible for them to depose against the persons concerned within the gang rape. The petitioners have additionally controversial the claim of the State in disbursing compensation.

It absolutely was declared that they weren't paid compensation abundant less the adequate compensation. Further, a prayer was created for transfer of cases of gang rape outside the State of  U. P. within the larger interest of the society and so as to confirm honest investigation, prosecution and trial of the cases concerning Petitioner Nos. 1 to 7. Finally, they declared within the petition that if the investigation isn't transferred to take a seat

comprising the officers of integrity from the States apart from U.P., there can't be justice forsexual violence suffered by them thanks to inaction on a part of the State of U. P.

JUDGEMENT

After hearing to the arguments and seeing the grievances of the case, the court direct the Union of India, Ministry of Home Affairs and State Government to provide adequate security forces to take all necessary measures to stop the genocide and to prevent further communal violence, To direct the State Government to take stern action against the persons responsible for rape and other heinous offences and also to provide rehabilitation of the victims and to appoint an independent Commission apart from the one constituted by the State Government for impartial inquiry into the incidents and submit a report for prevention of such incidents in future and rehabilitation measures for victims.

Ongoing through various allegations levelled in the writ petitions, the court direct the State of U. P. in association with the Central Government to take immediate steps and take charge of

all persons, who are stranded without food and water and set up relief camps providing all required assistance. It is also directed to ensure that all stranded are taken to places of safety.