1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Suo Moto Vs. State of Rajasthan (D.B.CIVIL WRIT PETITION NO.2856/2005) *** DATE OF ORDER: FEBRUARY 5th, 2007 P R E S E N T HON'BLE MR.JUSTICE N.N.MATHUR HON'BLE MR.JUSTICE GOPAL KRISHAN VYAS Suo Moto Mr.N.M.Lodha, Additional Advocate General BY THE COURT : (PER HON'BLE MR.MATHUR J.) REPORTABLE/- 1. Jodhpur the historic City with its appeal of magnificent forts, gleaming sands, bustling City, City Palace with all colours of life, a tradition for “Atithi Devo Bhave” beckons tourists from places near and far. It was this mystical charm attracted a 47 years old Mrs.Petra Wust a German national and an employee with Lufthansa Airlines, and she arrived at Jodhpur on the evening of 11th May, 2005. She checked into a Hotel namely Haveli Guest House inside the walled City. She went out for dinner to a Five Star Hotel and while returning hired Auto- Rikshaw. The Auto-Rickshaw Driver and his associate, instead of 2 dropping her in Hotel, drove to a village on the out-skirts of the city and the bank of the Jojari river alleged to have raped. Her screams attracted the villagers on the spot. The two accused fled away. The villagers took the terrified woman to Police Station, where she narrated ordeal. The police immediately swung into action and the Auto Driver was soon nabbed at a Check Post. The other accused was also arrested. The investigation was taken up by young I.P.S. Officer Shri Prafulla Kumar, A.S.P. He also recorded the statement of the victim. She was shattered psychologically, physically and as such no longer wanted to stay back in India even for a day. The news of the incident flashed in various news papers of 13th May, 2005. Considering that the constitutional courts vested with powers under Article 226 of the Constitution of India can no more be a silent spectator in the matter of violent crimes against women and wait for its turn for dispensation of justice, this Court took suo moto cognizance of the incident and by ad-interim order while directing for speedy investigation also directed the State Government and police authorities to extend psychological, physical and economical assistance to the victim and make her stay comfortable to ensure that she does not leave the country and co-operate in investigation and trial of the case. The Court gave a specific direction to bear the expenses of the victim for her over stay on account of 3 the incident. The operative part of order dated 13th May, 2005 reads as follows:- “In order to combat the increasing crime against women and to ensure protection and preservation of their human rights the Criminal Justice System needs to be addressed from the point of view of systematic Victim Support Service. There is need to promote proactive role of police as well as the trial courts. Thus, in order to expedite the investigation, to provide protection to the victim, ensuring production of material witnesses during trial without delay, expeditious conclusion of the trial and payment of compensation to the victim, after noticing the incident, by order dated 13.5.2005, we ordered as follows:- The rape is serious crime whether it is of a foreign tourist or any other woman. However, it leaves a question mark on the safety of the foreign tourist in the City of Jodhpur. It is likely to create panic amongst the tourists visiting Jodhpur and the other parts of the country. In the peculiar facts and circumstances of the case, we consider it appropriate to take cognizance of the incident and direct as follows:- (i) The Registry is directed to register a Suo Moto petition under the label of “Public Interest Litigation”. (ii) The State of Rajasthan through Secretary Department of Home, the Director, Tourism and Superintendent of Police (City) Jodhpur be impleaded as party respondents. (iii) A notice be issued to the said respondents returnable within a period of one week. By ad interim order, the further directions are given as follows:- (a) The Superintendent of Police, City Jodhpur is directed to ensure that the investigation of the case is concluded at the earliest. 4 (b) All the agencies concerned with the investigation, including Director F.S.L. Are directed to co-operate with the investigation. F.S.L. Report must reach on or before 16.5.2005. (c) In event of filing of charge-sheet, the learned Sessions Judge is directed to ensure that the trial of the case is concluded expeditiously as far as possible within a period of one month from the date of filing of charge-sheet. (d) The Superintendent of Police, City Jodhpur is directed to ensure the safety of the victim. (e) The State of Rajasthan is directed to bear all the expenses of the victim for her overstay on account of the incident. She will be paid lodging and boarding expenses for visiting Jodhpur for investigation or trial in connection with aforesaid incident. (f) The question with respect to the payment of compensation shall be decided after hearing counsel for the State on the next date of hearing. (g) The Principal Secretary, Department of Home, State of Rajasthan is directed to ensure the compliance of the order. (h) A copy of the order be sent to the Principal Secretary, Department of Home, State of Rajasthan today itself by fax. (i) A copy of the order be also served on the victim.” 2. The incomplete charge-sheet under Section 173(8) Cr.P.C. awaiting F.S.L. Report in the case was filed on 14th May, 2005. The investigation was complete within 48 hours. It will be 5 relevant to give the chronology of events during investigation in order to show that ordinarily there should not be any reason for delay in such cases:- 12.5.2005 At 05.45 A.M.- Both the accused were sent for potency test and biological sample namely semen, blood, saliva, pubic hair, scalp hair, nail scrapping. 8.30 A.M.- Examination of scene of crime, lifting of broken pieces of glass, photography, recording of statements of eye-witnesses, who had rescued the victim and provided wearing. 11.15 A.M.- Examination of the scene of crime near Taj Hari Hotel from where the victim boarded the Auto. 01.00 P.M.-02.30 P.M.- Reinterrogation of the accused. 03.30 P.M.- Verification of the scene of crime by both the accused. 04.50 P.M.- Both the accused remanded to 15 days judicial custody for identification parade,precaution was taken not to reveal the identity of the accused. 07.00 P.M.- Sealed biological and physical samples sent to F.S.L. Jaipur for forensic examination. 08.00 P.M.- Statements of A.S.I. Chandi Dan who nabbed accused Shankar and A.S.I. Bagru Ram who nabbed Rakesh taken. 13.5.2005 10.30 A.M.- Statement of victim under Section 164 Cr.P.C. recorded before a Magistrate. 6 11.30A.M.- Identification parade of the accused before the victim in jail. The victim identifies the two F.S.L. Receipt obtained. Identification of the articles recovered from the accused by the victim before magistrate. 11.55 A.M.- Challan presented before the Chief Judicial magistrate. Investigation pending u/s 173(8) awaiting FSL Report. 15.5.2005 (a) F.S.L. Report. Report showed presence of human semen in Victim's vaginal swab, smear, and pubic hair. Pieces of glass from scene og crime and autorickshaw matched. 16.5.2005 Samples sent for D.N.A. Examination. 18.5.2005 Complete Charge sheet presented. Chronology of Trial 13.5.2005 Chargesheet filed before C.J.M. Court. Committed to Sessions Court the same day. 14.5.05 – 15.5.05 Court Holiday. 16.5.2005 Case transferred to Fast Track Court from Sessions Court. Charges read out to the accused. Advocate D.N.Yadav present from defence side. Summons of witness Petra Wust (victim) and Ashok Kumar R.J.S. issued and served. 17.5.2005 Examination in chief of victim Petra Wust completed in presence of Public Prosecutor Pokar Ram and Devi Singh Bhati and defence lawyer D.N.Yadav. Complete statement of Ashok Kumar recorded. 7 18.5.2005 Cross examination of Petra Wust completed. Complete chargesheet filed. 19.5.2005 Examination in Chief of Prosecution witness A.S.I. Ramdev, A.S.I. Rawataram and eye witnesses Bhinya Ram and Hemaram. Defence lawyer changed and Advocate Rajendra Saraswat appeared from Defence. 20.5.2005 Cross Examination of the above mentioned witnesses. In addition, Chief and Cross examination of A.S.I. Durgaram, A.S.I. Chandidan, Ct. Sohan Ram, Govind Singh Charan A.D.M. And Ladunath completed. 21.5.2005 Evidence of witness Ct.Sukhdev Ram, HC Ganpatlal, S.I. Pana Choudhary completed. Chief Examination of Dr.P.C.Vyas and Ram Singh S.I. Taken. 23.5.2005 Examination in chief of witness S.H.O. Bhanwar Dan and eye witness Badri Ram recorded. 24.5.2005 Cross examination of Bhanwardan, Badri Ram, HC Mahavir Singh and Ram Singh S.I. Completed and part examination in Chief of I.O. Prafulla Kumar. 25.5.2005 Completed examination in Chief of Prafulla Kumar. Cross Examination of Dr.P.C. Vyas. 26.5.2005 Cross examination of I.O. Prafulla Kumar completed. Statement of both accused recorded. 27.5.05 – 29.5.05 Time taken by the defence lawyer. 30.5.2005 Defence argument presented and completed. 8 31.5.2005 One defence witness presented. Trial complete. 3. The Additional Sessions Judge (Fast Track), Jodhpur by judgment dated 1.6.2005 convicted both the accused persons of offence under Sections 376(g), 365, 366 & 394 I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs.5000/-. They were also convicted of allied offences. On the same day dealing with the issue involved referring to the significance of speedy & fair investigation and trial and various facets of the aspects of victimology, this Court in Suo Moto vs. State reported in RLW 2005(2) Raj.1385 issued wide ranging directions as follows:- “i. The State of Rajasthan is directed to pay compensation in the sum of Rs.3 lacs to the victim German tourist referred-to above. The compensation shall be made over to the Embassy for Germany in India for payment to the victim. The payment to the German Embassy shall be made within a period of three months from today; ii. The State Government is directed to set up an Special Cell at the State Level to bring coordination and effective control among supportive agencies for quick and scientific investigation in cases of Sexual Violence. The Officer heading the Cell and Superintendent of Police the incharge of the District shall ensure that as far as possible, the investigation in such cases is concluded within a period of one week. All the district superintendents of Police in the State will submit a quarterly report about the investigation of cases of Sexual Violence in their respective district to the Special Cell as directed above. The incharge of the Special Cell will submit consolidated report to the Registrar (Fast Track) of this Court, who, in turn, shall place the same 9 before the Hon'ble Administrative Judge (F.T.) for perusal and necessary directions. The first such report must reach to the Registrar (Fast Track) in the first week of August, 2005; iii. The Registrar General of this Court is directed to issue appropriate directions to all the Sessions Judges in the State of Rajasthan to ensure that the trial in cases of Sexual Violence is completed within a period of four months (As recommended by Mallimath Committee) from the date of filing the chargesheet. The respective Sessions Judges will submit a quarterly report about the conduct of trial of cases pertaining to Sexual Violence to the Hon'ble Administrative Judge (Fast Track) through the Registrar (Fast Track) for perusal and necessary directions. The first such report shall be submitted to the Registrar (Fast Track) in the first week of August, 2005; iv. The State Government is further directed to prepare an Scheme within a period of one month and give effect-to the same ensuring that - a. As soon as case of Sexual abuse or violence is reported, necessary financial, medical, psychological and social assistance is provided to the victim; b. The atmosphere of camaraderie is built so that victim is helped to get out of trauma, both physical and mental; c. Where there is a risk of non-availability of witnesses, as in a case of foreign tourist or being intimidated, steps be taken to get her statement recorded immediately before the trial Judge in accordance with the law, before she leaves the Country. Appropriate provision be made for payment of overstay of such victim at a reasonable cost; v. The Courts trying the offence of Sexual Violence will ensure that - a. The victim is not harassed by strategies adopted by the accused persons to recall and restate the trauma faced by her for more than once; 10 b. The statement of the victim shall be recorded positively on the date fixed except for the special recorded reasons; c. The victim appearing as a witness will be provided accommodation in the Court and she will not be required to wait for long, in any case not beyond two hours; d. The statement of the witness shall be recorded in an atmosphere conducive to the women speaking freely about the Sexual Violence she faced. Any disrespectful language to victim used by a Court officer including the lawyer shall be construed as a misconduct to be appropriately dealt with by the respective authorities; vi. The Department of Tourism is directed to provide an Scheme for safety and security of the tourists visiting Rajasthan. The Commissioner, Department of Tourism, will ensure the safety and security of the tourists visiting Rajasthan. He shall submit a compliance report within a period of two months from today; vii. The State Government is directed to organize a Workshop in consultation and in joint venture of the High Court, for Fast Track Court Judges, Police Officers, other supportive Agencies to sensitize them of Sexual Offences within a period of three months from today; viii. We record our appreciation for quick and scientific investigation conducted by the Rajasthan Police under the leadership of Shri Kalyan Mal Sharma, I.G.P., Jodhpur. The Director General of Police, Rajasthan, Jaipur is directed to record appreciation of the officers concerned in the investigation in their service record; ix. We also record our appreciation for Shri Madan Lal Sharma, then I.G.P., Rajasthan, for the mechanism provided by him in ensuring the production of witnesses during trial in various Fast Track Courts in the State. The Director General of Police, Rajasthan, is directed to 11 communicate the appreciation to Shri Madan Lal Sharma; x. We record our appreciation for the enquiry magistrate and the trial Judge for quick trial. The appreciation be recorded in their service record; xi. Any observations made in the instant order will not have any reflection on merits of the case in the event of appeal being filed by the accused persons against the conviction & sentence; xii. A copy of this order be forwarded to the Chief Secretary Government of Rajasthan, the Director General of Police Rajasthan Jaipur, the Commissioner Tourism Rajasthan Jaipur, the German Embassy in India at Delhi, the Registrar General of this Court and the National Human Rights Commission New Delhi for necessary action and compliance.” 4. Again this Court while noticing the compliance of order dated 1.6.2005 emphasized in change of governance in various segments of criminal justice system i.e. police, prosecution and the courts by improving the system, adequate infrastructure with steady progress in information, research, training, monitoring, planning and above all co-ordination. The Court also directed the State Government to take initiative and provide adequate infrastructure for different segments of criminal justice system. The Court also asked the State Government to prepare a scheme providing adequate infrastructure to the different agencies from grass root level to top with proper mechanism of monitoring and co-ordination. The High Court also took initiative and at the first instance asked the 12 District Judges to constitute a core group of selected judicial officers in their districts to examine into the different aspects of courts' infra-structure. After receiving the reports from the District Judges further core groups at State level were constituted to study the reports and make report as to the infra- structure requirements in present judicial set up and courts. We may briefly refer to the reports of the Core Groups:- “CORE GROUP-I: Restructuring & Rationalizing the staff pattern in subordinate courts:- Core Group No.1, headed by Shri N.K.Purohit, District & Sessions Judge, Ajmer has has pointed out that in number of courts the staff is inadequate while in some courts, the staff is in excess. The Core Group has also considered the requirement of the staff on the basis of the criteria fixed by the Core Group for the purpose. After adjusting the excess staff against the deficit staff, following staff in the State of Rajasthan was found deficient:- (a) A deficiency of 453 LDC in all judgeships of the State has been reported. For this the core group has relied upon the norms based on the following:- a-1 Total number of cases (Civil/Criminal) pending in the court. The core group has considered that, taking a overall view, for handling 500 criminal or civil files, one clerk is required. a-2 leave reserve clerk should be provided in the courts and the strength of such leave reserve clerks may be determined in view of the number of courts in the judgeship(page 25 of the report). a-3 there is strong need for one clerk exclusively for typing the statement of the witness and the other misc.typing work. 13 a-4 The Core Group suggested norms for staff pattern of the copying section varying the strength of the courts (page 28 of the report). Like wise staff pattern for Record Section, Mal Khana has also been considered, apart from Establishment Section, Accounts Section and Nazarat Section of the District and other out-lying courts. (b) The Core Group was also of the view that the District Judges should be provided one Stenographer in addition to the present one PA provided to them, to cope up with the dictation work of the court and the office as well. (c) The Core Group was of the view that total 4 peons for the courts situated at the District Head-Quarter should be provided while for newly created courts, the strength of 9 peons is being provided which is found to be sufficient (page 26) in the report and have thus reported deficiency of 811 peons. Based on the above of the Core Group has recommended for creation of the following additional strength of the staff for the Subordinate Courts with the recurring financial liability of Rs.10.49 Crores per annum:- 1. Stenographer(Additional) 33 2. Stenographer 149 (Reserve/General Pool) 3. UDC 1 4. LDC 453 5. Class IV 811 Total 1447 While taking into consideration various aspects of the staff requirement reported by the Core Group, the Committee was of the view that the existing and proposed staffing pattern for the courts needs to be looked into by the Registry of the Hon'ble High Court in the administrative side first as the proposals for strength of staff are generated and justified by them when the same are sent to the Government for 14 financial sanction. Regarding recommendations pertaining to amendment in the rules for recruitment/ service conditions of employees, revision of rules for issuing certified copies and policy for rotation of staff, the committee was of the view that this aspect too should be appraised by the Registry of the High Court. Core Group-2: Improvement in present pattern of courts buildings:- Core Group-2 headed by Shri Mahesh Chand Bhagwati, District & Session Judge, Jaipur Distt. Jaipur has examined the aspect of requirement of court buildings for subordinate courts in the State and has given the following details in this regard:- 1. Number of courts in the State of Rajasthan - 747 (including District Consumer Forums,Family Courts and Tribunals) 2. Number of Courts having no buildings of their own - 246 3. Courts functioning in building in shattered condition – 97 4. Courts having no chambers of Presiding officers - 49 5. Courts having no room for staff to sit - 109 6. Courts having no steno room - 208 7. Courts with no room for APPs - 113 8. Courts having no litigants shed - 46 9. Places Mal Khana Room required - 41 10. Places where Record Room required - 27 The committee considered this report in the wake of the Rajasthan High Court letter dated 8.3.2006, wherein 237 new court buildings are to be constructed requiring financials provision for Rs.8270.18 lacs (without escalation charges). It has been reported that the State Government has 15 already appreciated the need and budgetary provision of Rs.15.99 Crore has been made keeping in view the overall fiscal position. Core Group-3: Equipments, furniture & machinery, etc. Core Group-3, headed by Shri P.K.Bhatia, District and Session Judge, Jaipur City, Jaipur has given its report regarding furniture, equipment and machinery etc. Various requirements such as sofa, furniture, type writers, safe boxes etc. suggested in the report entail financial expenditure of Rs.32 crores. The committee, while examining the details of the various items required, noted that the Core Group recommended for the requirement of 3663 Type- writers costing Rs.2.19 crores, Electronic Type- writers numbering 65 costing Rs.3.29 crores, and Tijori (Safe Boxes) numbering 2064 costing 5.16 crores has been shown for total number of 747 courts. The Committee was of the view that this requirement is required to be rationalized, keeping in view the fact that- (i) total number of courts are 747; (ii) the fact that the courts are proposed to be computerized in the near future; and (iii) Type-writers are likely to become obsolete. As such the availability, repair and maintenance of type-writers is not preferred item in the market place. The Committee was of the view that these demands need to be viewed and examined by the Registry of Hon'ble High Court in the Administrative side as the Registry too have been placing demands on such items from time to time after assessing the requirements of the subordinate courts. Core Group-4: Functioning requirement and re-organization, etc., relating the office of Registry. Core Group-4, headed by Shri Guman Singh, the then District & Session Judge, Jodhpur has given 16 certain suggestions regarding streamlining the working of the Judicial Section and the need of establishing live link between High Court and other State Agencies for exchange of information and coordination through internet and inter connectivity. The requirement of officers and staff for the registry of High Court has also been stated in the reply filed on behalf of the High Court in DB Criminal Civil Misc. 3rd Bail Application No.649/2005 in DB Criminal Appeal No.445/2002 and 5 other connected matters. A copy of the relevant pages (page 72-73) of the said report is annexed (Annexure-II). The total number of posts required to be created as per this report is 1380 as against the existing strength of 1036 with the recurring financial liability of Rs.13.16 Crores per annum. Hon'ble High Court in the aforesaid DB Criminal Appeal No.445/2002 vide its order dated 19.11.2005 about the aforesaid staff requirement of the High Court has observed as under:- “The material on record and in particular reports of the office are treated as a petition under Article 226 of the Constitution of India (PIL) for issuing appropriate directions. Let papers of this case be laid before the Hon'ble Chief Justice for constituting the Bench as may meet the pleasure of his Lordship.” Since the matter is sub-judice under the aforesaid observations of the Hon'ble High Court, the Committee has found itself not in a position to decide as to how it should look into the matter. Core Group-5: Reformation in Investigating System:- The core Group-5, headed by Shri C.P.Singh, then then Director, Litigation and the report submitted by him has been considered by the Committee. The Committee has prepared a detailed proposal of action taken in this regard which is annexed herewith (Annexure-III & IV). As a pilot project, video conferencing system between Central Jail and the Courts at Jodhpur has already been established and at Jaipur same is being made functional shortly. A 17 copy of the concept paper for up-linking the entire criminal justice system has been placed on record as Annexure-V.” 5. All the reports of the Core Groups were given to the State Government. The