)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No 909 of 1997 with CRIMINAL MISC. APPLICATION No 4533 OF 1997 with CRIMINAL MISC. APPLICATION No 4967 OF 1997 For Approval and Signature: Hon'ble THE CHIEF JUSTICE MR. K.SREEDHARAN and MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to see the judgements? Yes 2. To be referred to the Reporter or not? Yes 3. Whether Their Lordships wish to see the fair copy of the judgement? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- LOK ADHIKAR SANGH Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR GIRISH PATEL for Petitioner MR PG DESAI, PUBLIC PROSECUTOR for Respondent No. 1 MRS KA MEHTA with MR ANAND DAVE, MR PM THAKKAR WITH M/S THAKKER ASSOCIATES and MR ND NANAVATI with M/S NANAVATY ASSOCIATES, Advocates for the Police Officers. -------------------------------------------------------------- CORAM : THE CHIEF JUSTICE MR. K.SREEDHARAN and MR.JUSTICE M.S.SHAH Date of decision: 10/02/1998 CAV JUDGEMENT (Per Shah, J.) This public interest petition is filed by Lok Adhikar Sangh claiming to be a human rights organisation committed to the defence and protection of civil liberties and democratic rights of the people and particularly of the poor and the down trodden in the State of Gujarat. The petition is filed on behalf of Nitaben Goswami, Sarpanch of village Dadva in Bhavnagar District, and her husband Dineshpuri who are alleged to have been subjected to brutal and ruthless torture by anti-social elements sometimes in collusion with the police officers and sometimes with the connivance of police officers. The grievance in the present petition centres round the arrest of Nitaben during night hours and allegations of handcuffing and parading of Nitaben and her husband in the village by police officers of Bhavnagar District. THE ALLEGED INCIDENT AND THE BACKGROUND .RS 2 #. The facts leading to filing of the present petition, as averred on behalf of Nitaben and her husband, are as under :- 2.1 Nitaben Goswami and her husband Dineshpuri Goswami have been residing at village Dadva, Taluka Umrala of Bhavnagar District. In May, 1991, some anti-social and head strong persons from Dadva village started harassing Dineshpuri Goswami. On July 6, 1991, Nitaben was forcibly taken away and gang raped by the persons named in the petition and by their associates. The local police did not take any action in Criminal Complaint No. 91/91 registered with Umrala Police Station, but her tragic story was published in the newspapers and, therefore, the petitioner - Lok Adhikar Sangh took up her case and filed a writ petition against the State and the police authorities. This Court directed the learned Judicial Magistrate, Bhavnagar to hold inquiry under Section 202 of Cr.P.C. and also directed the police to provide protection to the couple. After inquiry, several accused were arrested and ultimately the criminal case was committed to the Sessions Court, Bhavnagar where the trial is pending. That is registered as Criminal Case No. 791 of 1992. Some of the police officers are also arraigned as accused in the above case, for the offence punishable under Section 202 IPC. 2.2 After the aforesaid petition, Nitaben and her husband continued to be harassed. During pendency of the criminal case before the Sessions Court at Bhavnagar, after the evidence of Nitaben was recorded, her husband was assaulted by some of the accused and their bail was cancelled. Even Nitaben's application for appointment of Special Public Prosecutor came to be granted by the Government after intervention of this Court. 2.3 Nitaben and her husband bravely faced all these sufferings, without succumbing to the various threats and pressures and Nitaben was ultimately elected as the Sarpanch of Dadva village and at present also she is holding the post of Sarpanch of that village. In the village, there is a temple of Randalma which is visited by a number of pilgrims and the temple has substantial income. According to Nitaben and her husband, the affairs of the temple are managed by the trustees who are the relatives of the accused in the gang rape case. Inspite of the income of this temple being substantial, the trustees have been disclosing meagre amount while submitting reports to the Charity Commissioner and other concerned officers. Nitaben in her capacity as the Sarpanch has been reporting to the Charity Commissioner time and again about the mismanagement of the temple funds and other activities by the trustees and their relatives and, therefore, the persons in the mismanagement of temple funds are annoyed against Nitaben and her husband. Last year, when the Charity Commissioner had issued notice of hearing to the parties concerned, the husband of Nitaben was involved in cases under the Atrocities Act and ultimately he was acquitted. The village people also made a representation to the Collector on January 16, 1996 protesting against the mismanagement of the affairs of the temple and harassment being meted out to Nitaben and her husband. 2.4 On July 4, 1997, Nitaben and her husband Dineshpuri Goswami received notice of hearing from the Charity Commissioner in respect of the pending inquiry. On the very same night, Mamlatdar Shri Gohil and Police Sub Inspector D K Solanki came to the village alongwith police party and requested Nitaben, Sarpanch of the village, to take care of the affairs of the temple in absence of the priest for a limited purpose and from that day onwards Nitaben sent all the temple offerings in cash by Money Orders to the Mamlatdar and attended to the problems of the pilgrims visiting the temple. On July 8, 1997, Circle Police Inspector M M Parmar together with PSI D K Solanki and other constables came to the village temple and at around 4.00 O'clock in the afternoon some of the people belonging to the other community, including those involved in the management of the temple, threw stones at the house of Nitaben. The Circle Police Inspector told Nitaben and Dineshpuri to leave the village with their children immediately in his jeep. 2.5 Nitaben and her husband proceeded towards Bhavnagar to express their grievance before the Collector. On July 9, 1997 they submitted their representation to the Deputy Collector and a copy was also submitted to the D.S.P. On July 10, 1997, Nitaben and Dineshpuri went on hunger strike in front of the Collector's Office, but nobody paid attention to them. On July 11, 1997, the police constable who was in charge of their protection, complained of illness and left and at around 4.00 P.M. a lady constable, Savitaben Chauhan, came to the place and started beating Nitaben who was at the relevant time running eighth month of her pregnancy. Nitaben was also kicked in the stomach. Dineshpuri lodged a complaint with the police station at Bhavnagar. Nitaben was also taken to the hospital for medical check up and treatment. 2.6 On the next day i.e. on 12th July, 1997, Nitaben and her husband were discharged and, therefore, Nitaben and her husband left for Ahmedabad. Since by the time, they reached Vallabhipur, it was evening they went to village Melana to stay at their friend Abhesing's place. A police party came to their friend's place at around 11.30 P.M. and arrested Nitaben and her husband Dineshpuri without informing them about the offence for which they were being arrested and were not produced before any Magistrate for almost 22 hours. 2.6 Thus, Nitaben and her husband Dineshpuri were arrested on July 12, 1997 at about 11.30 P.M. i.e. during the night hours, by PSI D K Solanki, lady constable Savitaben Chauhan and a few other police constables. Before their arrest, they were beaten and thereafter taken to Umrala Police Station in a jeep. In the jeep, they were threatened not to go ahead with their complaint lodged against Savitaben Chauhan or face dire consequences. At Umrala Police Station, they were put into lock-up and on July 13, 1997, at around 5.00 O'clock in the evening Nitaben and her husband were taken to their village Dadva. First they were taken to the police station of that village and then they were handcuffed. Their hands were tied up with ropes and they were made to wear hanging slates around their necks wherein it was written in Gujarati that whoever helps Nitaben and her husband would face the same consequences. Thereafter, they were paraded in the entire village by the police party consisting of PSI D K Solanki, constable Savitaben Chauhan and other police constables. Thereafter they were brought in the police jeep to Taluka Police Station at Umrala and from there they were taken to Vallabhipur at the residence of the learned Magistrate at about 9.00 P.M. They were then informed that they were arrested in respect of a police complaint filed by the accused involved in stone throwing and associates of the accused in the gang rape case and that they were charged with the offences punishable under Sections 296, 506 (2), 504 and 114 of the Indian Penal Code. That complaint (C.R. No. 38 of 1997) was lodged before the Umrala Police Station on July 7, 1997 alleging that on July 4, 1997 at about 6.30 P.M. they had threatened to kill Manjula, wife of priest Harnamsinh (complainant) with a sword and knife. [That is, when they (Nitaben and her husband) were under protection of one armed police constable and another unarmed police constable] 2.8 Even when they were taken to the residence of the learned Magistrate, they were surrounded by police and watched by a number of people including those involved in stone throwing and the relatives of the accused in the rape case. Hence, they could not say anything to the learned Magistrate about the treatment meted out to them. Immediate release from the police custody on bail was the first thing they were desperately looking forward to. Even after their release, those who bailed them out were also threatened by the police and other relatives of the accused in the rape case. Thereafter Nitaben and her husband Dineshpuri went to Ahmedabad and from there they sent their complaint dated July 17, 1997 to the District Superintendent of Police, Bhavnagar by post. #. On the basis of the above averments, it is submitted in the petition that there was gross violation of the fundamental rights of Nitaben and her husband Dineshpuri, at the hands of the police personnel of the State, especially their fundamental rights under Articles 14, 19 and 21 of the Constitution. Relying on the decisions of the Honourable Supreme Court in a number of cases, they have submitted that there were not only violation of human rights but also flouting of the directions given by the Apex Court regarding arrest, handcuffing etc. amounting to contempt of Court, apart from commission of crimes under the Indian Penal Code and gross misconduct. The petitioner, therefore, has prayed that the respondent Government be directed to take action against the police officers by initiating appropriate criminal proceedings, departmental proceedings and a high level judicial officer be appointed to investigate into the complaint of the victims. The petitioner also prayed for a direction to the State Government to pay compensation to Nitaben and her husband for the gross and fragrant violation of their fundamental rights under Articles 14, 19 and 21 of the Constitution. ORDERS OF THIS COURT AND INQUIRY BEFORE THE SESSIONS JUDGE AND LAW OFFICER OF THIS COURT #. On July 22, 1997, this Court directed that a copy of the petition be served on the learned Public Prosecutor and fixed the hearing of the petition on July 24, 1997. On that day, at the request of the learned Addl. P.P. the hearing was adjourned to July 25, 1997 on which day, the learned Addl. P.P. made submissions in the presence of the D.S.P. who was present in the Court. The matter was heard at length, but the Court recorded in the order its dissatisfaction with the submissions made by the learned A.P.P. and directed the authorities to file affidavit in reply by July 29, 1997. #. On July 29, 1997, the learned A.P.P. produced the report of the Deputy Superintendent of Police Mr Jotangia who submitted in his report that he had recorded statements of 28 persons all of whom stated that no such incident as parading of Nitaben and her husband in the village with garlands of chapels or slates or handcuffing was seen by them. The learned counsel for the petitioner had refuted the said finding and submitted that a large number of persons were willing to give their statements about the incident and had produced a statement of large number of people running into more than 100 in support of his submission. This Court recorded that the Dy.S.P. had not recorded the statement of the doctor who had treated Nitaben with history of assault nor of the victims nor had he recorded the statement of the journalist who has made the news report. This Court was constrained to observe about the partisan attitude of the Dy.S.P. in making inquiry and recording statements and after recording the finding that the district police machine had utterly failed to perform its public duty honestly and impartially, this Court entrusted the inquiry to the learned Sessions Judge, Bhavnagar in the following terms:- "It is absolutely necessary that this enquiry into the incident of assault, arrest, parading, handcuffing, chappal garlanding etc. be directed to be done by the learned Sessions Judge, Bhavnagar, who shall submit a report to this Court. It will be open to him to visit the village and record statements and/or to enquire in any other manner or at place(s) he thinks proper. If the witnesses think that their statements be recorded elsewhere and not in the village, that also will be open to the learned Sessions Judge to consider. In the interest of this enquiry, it is absolutely necessary that the Dy.S.P., P.S.I. and the lady Head Constable are kept away from the District. The State is directed to see that these officials are immediately so placed. It is hoped that the learned Sessions Judge would be able to spare time and complete the enquiry and make the report to this Court as expeditiously as possible and preferably by 26.8.1997. Adjourned to 28.8.1997. The arrest of the complainant lady-Nitaben Goswami in dark hours at 4.00 a.m. was not only contrary to the provisions of the Criminal Procedure Code, but she having been kept in custody till the end of the day was also not at all justified and all these show that the police was acting in partisan manner. It would be open to the Sessions Judge to take assistance of such Agencies as he thinks proper including CID (Crime) or any voluntary agency. The State shall see that all the necessary facilities are given to the learned Sessions Judge to complete the enquiry in time. A xerox copy of this paper-book and order to be sent to the Sessions Judge with the writ." #. Before the learned Sessions Judge submitted his report dated August 21,1997, an affidavit dated August 14, 1997 was filed by 12 residents of village Dadva. In that affidavit filed before this Court, it was stated that when the learned Sessions Judge had gone to the village on August 9 and 10, 1997, at that time more than 25 persons were prevented from meeting the learned Sessions Judge by a mob of more than 100 persons and there was continuous harassment and threats and even stone throwing and an environment of terror was created to discourage the village people from giving statements, but the police did not do anything and PSI Solanki had remained continuously present (even though he had already been suspended on August 5, 1997) and encouraged the people of the other community to resort to unlawful activities. It was further stated that even in the Sessions Court at Bhavnagar, 25 to 30 persons had gone from the village to give their statements, but there also they were prevented in and outside the Court premises by a mob, a few of them with lethal arms preventing the persons from appearing and giving statements before the learned Sessions Judge. It was further stated that although the police officers involved were required to be kept away from the district, all these officers were very much in the district and obstructed the course of investigation and justice. It is pertinent to note that on August 13, 1997, the petitioner had also filed Misc. Criminal Application No. 4533 of 1997 to direct the authorities to take adequate measures to allow people of Dadva village to take part in the inquiry conducted by the learned Sessions Judge in free, secure and peaceful environment and making grievance about the presence of PSI Solanki and also making the aforesaid grievances. It is stated in the said affidavit that when the learned Sessions Judges had visited the village in connection with the atrocities against Nitaben and her husband, they were surrounded by the members of the Darbar-Rajput community and when they went to the place where the learned Sessions Judge was recording the statement, the witnesses were threatened with dire consequences after the Court is over. The learned Sessions Judge had recorded the statements on August 9 & 10, 1997 for more than 3 hours. The members of Darbar community had formed a long queue before Nitaben's witnesses could go there. They were prevented from making statements before the Court. The youth from the Darbar Community had started telling people that those who appear before the Court in support of Nitaben will be severely beaten and will be shot, if necessary. Even on August 12, 1997, when they went to the Court at Bhavnagar as notified in the public notice, 30-40 people from Darbar Community were already there in front of the Court room and as soon as the people were called, half of them formed a long queue and half of them stood out and stood besides them with threatening gestures. Hence, Nitaben's witnesses could not give statements and they were followed whereever they went. Even PSI Solanki, under suspension for the incident in question, was visiting the village Dadva in simple dress and attending the meetings held by the Darbar Community every day in the evenings. Admittedly, PSI Solanki belonging to the Darbar-Rajput community had created the aforesaid atmosphere of intimidation and terror in the village so as to frighten the witnesses supporting Nitaben. Even lady constable Savitaben was remaining present and she was also present at the Bhavnagar Court on August 12, 1997, threatening Nitaben's witnesses outside the Court and even inside. #. The learned Sessions Judge submitted his report dated August 21, 1997 to this Court with the following observations and conclusions. (i) The statements of several persons were recorded at the primary school in village Dadva on August 9 and 10, 1997 after issuing a public notice to that effect in the newspaper dated August 6, 1997. Notice was also placed in the primary school that further inquiry will be held at Bhavnagar from August 11 to 14, 1997. On August 9, 1997, Dineshpuri Goswami and two of his witnesses had given their statements, but Nitaben had not given her statement. But on August 12, 1997, Nitaben and her husband Dineshpuri had met the learned Sessions Judge in his chamber requesting him to take the statements of their witnesses in a private place and that also without informing the date and place in public notice, requesting that other persons of the village should not come to know that the statements of her witnesses were to be recorded by the learned Sessions Judge. That request was rejected on the ground that it would be against the principles of law. Once again public notice was published in the newspaper dated August 17, 1997. The learned Sessions Judge also observed that inspite of several opportunities given to her, Nitaben did not give her statement. (ii) Nitaben and her husband have filed as many as 11 complaints against several persons from 1991 to 1995 at Umrala Police Station or at Bhavnagar Police Station and 5 cases were filed against Nitaben and her husband in the years 1995, 1996 and 1997. These persons are involved in so many criminal cases, but they have not made any complaint before the learned Magistrate at Vallabhipur when they were produced at 9.00 P.M. on July 13, 1997. (iii) Nitaben and her husband were arrested at village Melana during night hours and they were taken to Umrala Police Station at about 4.00 A.M. on July 13, 1997. It was not necessary to arrest a woman accused during night hours and it was also against the provisions of law. The dispute had taken place between Savitaben and Nitaben at Bhavnagar and cross complaints were filed by them and lady constable Savitaben was smarting under the grudge against Nitaben and her husband Dineshpuri. However, PSI Solanki had no interest in the alleged incident. (iv) Though statements of 38 persons were recorded and oral inquiry was made of 168 persons of different communities of village Dadva, out of them only three persons have come forward to support the story of the alleged incident. Dineshpuri, husband of Nitaben, had naturally supported the story of the alleged incident, but why Nitaben and other persons have not come forward to support the say of the alleged incident ? The say of the alleged incident, therefore, appears to be incorrect. #. Looking to the grievances of Nitaben and her witnesses, the Law Officer of this Court was directed to record the statements of Nitaben and her witnesses and accordingly the statements of Nitaben and 22 witnesses were recorded by the Law Officer of this Court on August 30, 1997. Obviously, in view of the grievance made by Nitaben on behalf of her witnesses and herself earlier before the learned Sessions Judge and thereafter before this Court, the statements of the above witnesses were recorded without any prior intimation to the respondents or to the other village people. All these witnesses from village Dadva supported the statements made in the petition that Nitaben and her husband Dineshpuri were handcuffed, tied up with ropes and were paraded with chapples and with slates hanging around their necks and that the entire incident took place in the presence of police personnel and that when this incident had happened there was a big crowd of 150 to 200 persons. They also stated that they could not give their statements before the learned Sessions Judge in view of the atmosphere of intimidation created by the other group. In view of the aforesaid grievances, on September 9, 1997, this Court issued Suo Motu notice for contempt of Court numbered as Misc. Criminal Application No. 4967 of 1997. AFFIDAVITS OF THE POLICE PERSONNEL #. Copies of the aforesaid statements recorded by the Law Officer of this Court were made available to the respondents through their respective counsel. Affidavits in reply have been filed by the District Superintendent of Police Anil Pratham, Dy. S.P. Jotangia, PSI D.K. Solanki and Constable Savitaben. The D.S.P. has stated that PSI D.K. Solanki, in-charge of Umrala Police Station was suspended on August 5, 1997, while constable Savitaben Chauhan, Dy.S.P. Jotangia and Circle Police Inspector, Botad M.M. Parmar have all been transferred out of Bhavnagar District. ##. According to the D.S.P., the preliminary inquiry in the allegations regarding arrest of Nitaben was entrusted to Jotangia, Dy.S.P. But since the report submitted by the said officer was not found to be satisfactory by this Court, the D.S.P. had entrusted the inquiry to R.J. Sawani, another Dy.S.P. in the district. In the meantime, since this Court had entrusted the inquiry to the learned District & Sessions Judge at Bhavnagar, the police had provided the bandobast at the time