Case: Mohd. Haroon &amp; Others Vs. Union of India &amp; Another

in exceptional situations where it becomes necessary to provide credibility or instill confidence in investigation or where such an order may be necessary for doing complete justice in enforcing the fundamental rights. Apart from this, immediately after the occurrence, Writ Petition (Crl.) No. 155 of 2013 came to be filed in this Court even in the first week of September, 2013. Pursuant to the same, this Court, after taking note of the importance of the issues, viz., many people lost their lives and properties, sufferings of both communities and children, issued various directions to the State and the Central Government. We have already extracted those orders in the earlier part of our judgment. 124) It is relevant to note that based on various orders of this Court, even after the incident, the State itself has constituted a Special Investigation Cell (SIC). It is also brought to our notice that a total of 566 cases are being investigated by the SIC and after noting that many cases were false and many persons were wrongly named in the FIRs, 549 names have been removed. A total of 48 registered cases have been found false and have been removed from the records. It is also brought to our notice that names of 69 persons in murder cases have been found false and those names have also been removed from the array of parties. The details furnished by the State also show that after constitution of the SIC in September, it inquired about all those persons who had fled from their villages and had taken refuge in various relief camps and noted their problems by taking list of such persons staying in camps and getting their mobile numbers. The SIC also recorded the statements of the complainants and witnesses. We have already referred to the total number of arrested persons in communal violence in Muzaffarnagar and adjoining areas, list of total surrendered accused in the investigated cases, number of persons against whom action was taken due to communal violence, details regarding political persons, difficulties faced by the District Police in making arrests, details regarding recovery of AK-47 and 9 MM cartridges in village Kirthal P.S. Ramola, District Baghpat. They also placed the details about the steps taken in respect of case Crime No. 148 of 2013 (Fagana, Muzaffarnagar) and 403/2013 (Janath, Muzaffarnagar). In the list of persons, SIC also noted community-wise affiliation of their political parties etc. 125) In respect of cases of rape, the State has assured this Court that they are taking effective steps to apprehend all the accused and in providing security cover to the rape victims. 50 teams of police personnel have been constituted in order to arrest the accused persons in rape and other cases. The State has also filed details and progress of rape and molestation cases, statement of rape victims under Section 164 of the Code etc. 126) We have already noted that action had been taken against 11 persons under the provisions of the National Security Act as well as persons belonging to various political parties. The State has also furnished the details regarding 24 missing persons out of which 3 have been traced and is taking effective steps for tracing the remaining missing persons. 127) In respect of murder cases, the State has filed a separate chart showing the list of accused persons, verification of persons concerned who were involved, list of surrendered accused in murder cases as well as various other steps for apprehending the remaining accused. The State has also highlighted that through their public prosecutors/ counsel, it is taking effective steps for cancellation of bail in those heinous crimes in which persons involved have secured bail. 128) In the light of various steps taken by the State, facts and figures, statistics supported by materials coupled with the various principles enunciated in the decisions referred above, we are of the view that there is no need to either constitute SIT or entrust the investigation to the CBI at this juncture. However, we are conscious of the fact that more effective and stringent measures are to be taken by the State administration for which we are issuing several directions hereunder. Victim Compensation in Rape Cases: 129) As a long term measure to curb such crimes, a large societal change is required via education and awareness. The Government will have to formulate and implement policies in order to uplift the socio-economic conditions of women, sensitization of police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against women. 130) No compensation can be adequate nor can it be of any respite for the victims but as the State has failed in protecting such serious violation of fundamental rights, the State is duty bound to provide compensation, which may help in victims rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. 131) In 2009, a new Section 357A was introduced in the Code which casts a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357A, the onus is put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case. 132)

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is seen from the above particulars that a total number of six cases of rape were registered at the police station Fugana of District Muzaffarnagar. The cases were registered after more than 20 days from the date of incident. According to the State, investigation in all the six cases is almost complete. After taking the statement of victims under Section 161 of the Code, scene of crime has been visited by the investigating officer along with other officers. Medical examination of all the victims has been done and statements of all the victims have been recorded under Section 164 of the Code. It is further seen that although 41 persons were named in all the six cases, investigation and the statement of victims under Section 164 of the Code refers only to 22 persons. Only one accused had been arrested in the case of C.C. No. 179 of 2013 and proclamation under Section 82 of the Code has been issued against rest of the 21 accused persons. It is also seen that raids are being conducted by local police to arrest the remaining accusedThe particulars furnished further show that a total seven cases of molestation were registered during the communal violence. After investigation and recording the statement of complainant and thed victims, it was found that there was no case of molestation. Charges of molestation in all the seven cases were found false. Out of seven cases, in five cases, other charges of dacoity and injury were also found false as the complainants denied occurrence of any such incident. In rest of the three cases, act of dacoity was claimed by the complainant. Orders of arrest in Crl. No. 299 of 2013 have been given against five persons. In Crl. No. 254 of 2013, complainant stated involvement of 19 out of 22 named persons of committing dacoity and arson. Four fresh names were also given. Investigation is going on to find out the authenticity of involvement of accused person in this case. Similarly, in Crl. No. 312 of 2013, complainant had named 14 persons but in statement under Section 161 of the Code, denied the charges of molestation. The scene of crime showed arson in the house. Though the complainant has not mentioned any act of arson in the house, the investigating officer has added the relevant Section in his investigation. Investigation is going on to find the involvement of four named personsIn addition to the same, the State has also filed details of molestation cases, such as number of persons involved, offences, police station, summary of FIRs, progress of the case, etcRegarding the allegation that in the relief camp rape has been committed, based on the information, Case No. 537 of 2013 under Sections 376(g) and 506 IPC has been registered against Sachin and Sushil and the investigation of the same has been initiated by Kawarpal Singh Inspector in charge. During the investigation, both alleged accused Sachin and Sushil have been arrested and sent to the jail on 03.11.2013. Both the accused are in jail. In the investigation, proper and sufficient evidence have been found against both the accused andt No. 73 of 2013 dated 08.12.2013 has been presented to the court concernedApart from the above particulars, the State has also placed the actual statement of rape victims made under Section 164 of the Code before the court concerned. We have also perused the sameWith regard to various allegations raised in Writ Petition (Criminal) No.11 of 2014 relating to the rape victims, a request for recording fresh statement under Section 164 of the Code was made. Responding to this, the State has informed that the statement made by Petitioner No. 4 under Section 164 of the Code had not supported her version in FIR No. 141 of 2013 and Case Crime No. 296 of 2013. During the course of arguments, learned senior counsel for the State agreed to record the statement of Petitioner No.4 before a lady Magistrate if the petitioner is willing to appear. It is clarified by the State that pursuant to the above statement, the I.O. concerned got in touch with Petitioner No.4 on 17.02.2014 and explained the circumstances to her for making a fresh statement under Section 164 of the Code to a lady Magistrate. However, according to the, Petitioner No.4 declined to make a fresh statement under Section 164 of the Code before the lady Magistrate as requested. In addition to the same, counsel for the State has also brought to our notice the statement of Petitioner No.4 and video proceedings which are available with the State for perusal as and when desired by this CourtRegarding the lack of security cover to the rape victims, on behalf of the State, it is brought to our notice that the State of U.P. has provided security cover to all the rape victims, except Petitioner No.4 in whose case Final Report has been filed. It is also brought to our notice that Petitioner No.1 and her husband had been provided security earlier. It is also stated that all the rape victims refused security cover being provided by a lady constable and on seeing the sensitivity of the matter, the State has provided them with one male and one female security personnelon of FIR on the complaint sent by Petitioner No.7, the State has informed this Court that FIR No. 18 of 2014 being Case Crime No. 37 of 2014 under Sections 376D and 506 of the IPC at Police Station Fugana stands registered even on 18.02.2014. It is also brought to our notice that the following accused persons, viz., Kuldeep, Maheshveer and Sikandar have been made accused in the said case crime and investigation had already been commenced. As on date, Petitioner No. 7 has also been provided with one male and one female security personnelIn respect of arrest of accused persons in cases related to the offence of rape, the State has highlighted that so far 50 teams of police personnel have been constituted. Each team is led by ar and has23constables. Each team has been allotted34accused and has been given a specific time frame to affect these arrests since during the raids, it has been found that the accused persons are not staying intheirnative villages. These teams will track the location and have a focussed strategy of arresting targetted persons. In addition to the same, it is highlighted that two companies of the State Paramilitary Force have been earmarked for assisting these arresting squads. Additional SP, Crime, Muzaffarnagar has been madee of arrest operations. It is also assured to this Court that despite resistance to arrests, police has successfully conducted raids on the houses and probable places of hiding in villages on regular basisAction taken in murder and other offences:Regarding murders which occasioned during the violence, the State has filed a compilation containing list of named accused who were found false in murder cases. The particulars furnished by them show that about 70 persons (54 Hindus and 16 Muslims) were shown as accused and after investigation it was found that they were falsely implicated. In the Action Taken Report dated 08.02.2014, under the caption, the State has furnished information that in Muzaffarnagar, Shamli, Bagpat, Saharanpur, Meerut, 857 persons were implicated and after investigation they identified the total true accused as 337, out of which 94 persons were arrested, 14 surrendered, 6 reported dead ande warrants are pending against 198, Section 82 proceedings pending against 119, Section 83 proceedings pending against 3 and 6 persons were detained under the National Security Act. The details furnished further show that a total of 59 cases are being investigated by SIC. In these cases, 741 persons were named and 116 persons were brought to light. Of these, evidence has been found against 337 persons. Requisition of arrest has been sent against 289 accused. 94 accused have been arrested and 14 have surrendered before the Court. 6 accused died during investigation.e warrants against 193 accused have been issued and action under Section 82 of the Code has been taken against 116 accused. Action under Section 83 of the Code has been taken against 3 accused.Chargesheetwas filed against 55 accused. 70 persons were found false. Cases against 450 persons named/brought to light are under investigationIn addition to the same, the State has also furnished details showing the names of the accused found true in murder cases. It shows that a total number of 322 accused were found true, which consists of 286 from Hindu community and 36 from Muslim community. The chart also shows the names and residential particulars, crime number, police station, other details about action against those accused. The State also filed list of surrendered accused in murder cases which comes to total 13 persons (4 from Hindu community and 9 from Muslim community), all from Muzaffarnagar district. The chart also shows the names and residential particulars, case number, police station, offences under various enactments, date of surrender, etcCancellation of Bail:Regarding cancellation of bail orders, on hearing the counsel for the petitioners, this Court sought details of cancellation of bail and action undertaken by the State with regard to those accused who have been granted bail either by the Court of Magistrate or Sessions Court. In response to the same, the State has furnished that against 26 accused persons, the State has moved for cancellation of bail before the Court of Sessions. In addition to the same, the State has also placed a chart showing the details of cases in which the State has moved before the Court of Sessions. The details furnished show that in 26 cases in which the accused persons were charged with various offences under IPC read with Criminal Amendment Act, though court concerned has granted bail, the State has moved an application for cancellation of the same. The State Authorities are directed to pursue the same effectively. It is also brought to our notice that in another set ofpetitionswhere the accused persons have been granted bail by the competent court, the State has already given approval to file application for cancellation of bail before the High Court and the Government counsel has been instructed that necessary action may be taken for moving such applications. The details of moving applications for cancellation of bail against 57 accused persons to be filed before the High Court are furnished before this Court for our perusal. The Government counsel has also brought to our notice such government orders instructing for moving such applications for cancellation. During the course of hearing, the counsel for the State has also brought to our notice Government Order dated 09.01.2014 for cancellation of the bail of Azad and others in Case Crime No. 415 of 2013During the course of hearing, various counsel appearing for the petitioners submitted that bail has been granted to some accused persons as the State had not strongly opposedtheirbail applications. By drawing our attention to certain documents placed before us, the counsel for the State has pointed out that the Additional Public Prosecutor had opposed the grant of bail then and there69) Regardingaction taken against persons belonging to various political parties, it is highlighted that the State Government has taken strict action against all the accused persons irrespective oftheirpolitical affiliation. Learned counsel for the State has pointed out that even the State Government invoked the provisions of National Security Act wherever required. It is pointed out that the provisions of National Security Act were invoked against 11 persons. Mr. Sangeet Som, MLA, BJP and Mr. Suresh Rana, MLA, BJP were amongst those 11 persons. The chart produced by the State for our consideration shows that against 11 persons hailing from Districts Muzaffarnagar, Shamli and Baghpat detention under National Security Act was claimed and the appropriate Board approved five detention orders and disapproved 6In addition to the same, the State of U.P. has moved application for cancellation of bail in relation to Mr. Kadir Rana, M.P. BSP, Mr. Suresh Rana, MLA, BJP, Mr. Kunwar Bhartendu, MLA, BJP and Mr. Shyam Lal. The State has also assured that against Mr. Sangeet Som, MLA BJP an application for cancellation of bail will be moved by the State of UP before the Allahabad High Court. It is also brought to our notice that against Mr. Sangeet Som, a case Crime No. 888/13 under Sections 153A, 420, 120B and 66AE of the IT Act read with 7th Criminal Law Amendment Act was lodged in which it was alleged that the accused had uploaded a false and inflammatory video clipping intended to incite communal violence in the State. In this regard, it is submitted that the said clipping was uploaded on the socialk which has its server in the US. It is submitted that the request for providing the details of the IP address of the computer which has been used to upload the said video is being made to the said company following the provisions of Section 166A of the Code. Letter dated 26.11.2013, written by the Under Secretary, Government of India to the Home Department, State of U.P. is also placed before usaction initiated for Missing Persons:With regard to the allegations regarding missing persons, the State has placed materials to show that there were total 24 reported missing persons, out of which 3 have been traced and have returned totheirhouses and 2 dead bodies have been found. Remaining 19 persons are still missing and the State administration has assured that necessary steps have been taken for the same. If any person is declared dead in terms of Registration of Births and Deaths Act, 1969 and the Indian Evidence Act, the State will consider for paying compensation to the kith and kin ofAlmost all the petitioners, either victims, NGOs, persons hailing from that region, prayed for an independent investigation of the entire incident relating to communal violence and the subsequent action either by the Special Investigation Team (SIT) consisting of officers from outside U.P. or by the independent Agency like CBI. We have already referred and adverted to the grievance of various group of persons, organizations as well as the stand taken by the Union of India and specific stand taken by the State of Uttar Pradesh including having taken appropriate action against the culprits, rehabilitation measures for the victims, compensation for the loss of properties, both movable and immovable, for injuries, both simple and grievous, and fatal cases. The State has also highlighted the steps taken in respect of rape victims due to the communal violence and rehabilitation measures for those victims. In addition to the same, the State has also highlighted the cases filed against the persons concerned irrespective oftheirpolitical affiliations, cases filed against political persons, either MLA/MPs and the status as on dateIt is not in dispute that subsequent to the incident that took place on 07.09.2013 and afterwards, in and around Muzaffarnagar, a large number of persons, particularly, villagers from within and neighbouring districts, fled fromtheirhomes out of fear and took shelter in relief camps in various villages of two districts of Muzaffarnagar and Shamli. It is also seen that total 58 camps were made functional of which 41 camps were established in the district Muzaffarnagar and 17 in the district ShamliThe incidents of communal disturbance flared up sometimes on flimsy grounds blaming one community to other. Whatever may be, after the Mahapanchayat that took place on 07.09.2013, certain incidents such as eve teasing of other community girls followed by murders had taken place. Further, inasmuch as thousands of people gathered at a particular place in order to take revenge or retaliate, it is expected by the State intelligence agencies to apprise the State Government and the District Administration in particular, to prevent such communal violence. Though the Central Government even on day one informed this Court through the Attorney General for India that all necessary help, both financially and for maintaining law and order, had been provided to the State, there is no authoritative information to this Court whether there was any advance intimation to the State about the communal violence. Likewise, though the State has enumerated several aspects in the form of eleven compliance reports, there is no information to this Court whether the District Administration was sounded about the proposed action between the two communities. Had the Central and State intelligence agencies smelt these problems in advance and alerted the District Administration, the unfortunate incidents could have been prevented. Thus, we prima facie hold the State government responsible for being negligent at the initial stage in not anticipating the communal violence and for taking necessary steps for its preventionAt this juncture, viz., after a period of six months, whether an agency other than the State is to be directed to investigate and take appropriate steps. We have already noted various circumstances under which the court can entrust investigation to agency other than the State such as SIT or CBI. We have to keep in mind, as observed by the Constitution Bench referred to supra, that no inflexible guidelines can be laid down to decide whether or not such power should be exercised. However, this Court reiterated that such order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the State police. In other words, this extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility or instill confidence in investigation or where such an order may be necessary for doing complete justice in enforcing the fundamental rights. Apart from this, immediately after the occurrence, Writ Petition (Crl.) No. 155 of 2013 came to be filed in this Court even in the first week of September, 2013. Pursuant to the same, this Court, after taking note of the importance of the issues, viz., many people losttheirlives and properties, sufferings of both communities and children, issued various directions to the State and the Central Government. We have already extracted those orders in the earlier part of our judgmentIt is relevant to note that based on various orders of this Court, even after the incident, the State itself has constituted a Special Investigation Cell (SIC). It is also brought to our notice that a total of 566 cases are being investigated by the SIC and after noting that many cases were false and many persons were wrongly named in the FIRs, 549 names have been removed. A total of 48 registered cases have been found false and have been removed from the records. It is also brought to our notice that names of 69 persons in murder cases have been found false and those names have also been removed from the array of parties. The details furnished by the State also show that after constitution of the SIC in September, it inquired about all those persons who had fled fromtheirvillages and had taken refuge in various relief camps and notedtheirproblems by taking list of such persons staying in camps and gettingtheirmobile numbers. The SIC also recorded the statements of the complainants and witnesses. We have already referred to the total number of arrested persons in communal violence in Muzaffarnagar and adjoining areas, list of total surrendered accused in the investigated cases, number of persons against whom action was taken due to communal violence, details regarding political persons, difficulties faced by the District Police in making arrests, details regarding recovery ofAK47and 9 MM cartridges in village Kirthal P.S. Ramola, District Baghpat. They also placed the details about the steps taken in respect of case Crime No. 148 of 2013 (Fagana, Muzaffarnagar) and 403/2013 (Janath, Muzaffarnagar). In the list of persons, SIC also notede affiliation oftheirpolitical parties etcIn respect of cases of rape, the State has assured this Court that they are taking effective steps to apprehend all the accused and in providing security cover to the rape victims. 50 teams of police personnel have been constituted in order to arrest the accused persons in rape and other cases. The State has also filed details and progress of rape and molestation cases, statement of rape victims under Section 164 of the Code etcWe have already noted that action had been taken against 11 persons under the provisions of the National Security Act as well as persons belonging to various political parties. The State has also furnished the details regarding 24 missing persons out of which 3 have been traced and is taking effective steps for tracing the remaining missing persons84) Inrespect of murder cases, the State has filed a separate chart showing the list of accused persons, verification of persons concerned who were involved, list of surrendered accused in murder cases as well as various other steps for apprehending the remaining accused. The State has also highlighted that throughtheirpublic prosecutors/ counsel, it is taking effective steps for cancellation of bail in those heinous crimes in which persons involved have secured bailIn the light of various steps taken by the State, facts and figures, statistics supported by materials coupled with the various principles enunciated in the decisions referred above, we are of the view that there is no need to either constitute SIT or entrust the investigation to the CBI at this juncture. However, we are conscious of the fact that more effective and stringent measures are to be taken by the State administration for which we are issuing several directions hereunderVictim Compensation in Rape Cases:As a long term measure to curb such crimes, a large societal change is required via education and awareness. The Government will have to formulate and implement policies in order to uplift thec conditions of women, sensitization of police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against womenNo compensation can be adequate nor can it be of any respite for the victims but as the State has failed in protecting such serious violation of fundamental rights, the State is duty bound to provide compensation, which may help inrehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace88) In2009, a new Section 357A was introduced in the Code which casts a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357A, the onus is put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due to the commission of such heinous crime, rehabilitation becomes a must in each and every case.