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Art.32 of Constitution – direction to register FIR under sec.376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the arrest of the accused and for their prosecution after investigation of the case by the Central Bureau of Investigation as the police failed to do – in reply it was found that case was registered and accused were arrested – Apex court closed the case = NISHU … PETITIONER(S) VERSUS COMMISSIONER OF POLICE, DELHI & ORS. … RESPONDENT (S) = 2014 ( April.Part ) judis.nic.in/supremecourt/filename=41458

Art.32 of Constitution – direction to register FIR under sec.376-C, 376-D, 376(2)(n) of the Indian  Penal  Code;  for  the arrest of the accused and for their prosecution after investigation  of  the

case by the Central Bureau of  Investigation as the police failed to do  – in reply it was found that case was registered and accused were arrested – Apex court closed the case =

 

This writ application under  Article  32  of  the  Constitution  seeks

directions from the Court  for  registration  of  first  information  report

under Sections 376-C, 376-D, 376(2)(n) of the Indian  Penal  Code;  for  the

arrest of the accused and for their prosecution after investigation  of  the

case by the Central Bureau of  Investigation.   Appropriate  action  against

the officers of  the  Delhi  and  Haryana  police  by  way  of  departmental

proceedings  for  their  refusal/failure  to  register  the  FIR  under  the

aforesaid sections of the Indian Penal Code as well  as  the  provisions  of

The Protection of Children from  Sexual  Offences  Act,   2012  (hereinafter

referred to as ‘the POCSO Act’) has also been prayed for.=

initially FIR  No.  319/2013  dated  26.10.2013  was  registered  at  police

station Kalanaur, District Rohtak under Sections 363, 366A and 120-B of  the

Indian Penal Code on the written complaint of the father of the  petitioner.

 On the  basis  of  the  investigations  carried  out  by  the  police,  the

petitioner  was  recovered  from  village  Sirol,  Sector-18,  Gurgaon   and

produced before  the  Duty  Magistrate  (Judicial  Magistrate  First  Class)

Rohtak on 9.11.2013.  Her statement, which was to the effect that  ‘she  had

herself  left  the  house’,  was  recorded  by  the  learned  Magistrate  on

9.11.2013.  The respondents 2 and 3 have further  stated  that  subsequently

the petitioner desired to make a further statement which was refused by  the

learned Magistrate, Rohtak on two occasions i.e. 13.11.2013 and  29.11.2013.

 As the petitioner persisted with the said request  another  statement  made

by her was recorded under Section 164 Cr.P.C. by the learned  Magistrate  on

30.11.2013 wherein she had implicated the accused persons in the  commission

of rape during the period of her alleged confinement.   In view of the  said

statement of the petitioner, Section 376-D of  the  Indian  Penal  Code  and

Sections 4/6 of the POCSO Act were added to the FIR No. 319/2013  which  was

already registered.  According to the Superintendent of Police,  Rohtak  all

the nine accused persons have been arrested and are in custody.=

   Shri Rakesh K. Khanna, learned Additional Solicitor General  appearing

for the first respondent has submitted that no order  or  direction  to  the

first respondent would be justified in view of the fact that  the  case  has

been registered by the Haryana Police  and  has  been  investigated  by  the

authorities of the State of Haryana.  Shri  Ankit  Swarup,  learned  counsel

for  the  respondents  2  and  3  has  submitted  that  on   completion   of

investigation chargesheet has been filed against all the  nine  accused  who

are in custody and  are  presently  lodged  in  Rohtak  Jail.   It  is  also

submitted that charges have been framed  by  the  Trial  Court  against  the

accused inter alia under Section   376-D IPC and Section 4/6  of  the  POCSO

Act; in  fact,  according  to  the  learned  counsel,  the  trial  has  also

commenced in the meantime.

 

8.    In view of what has been  stated  by  the  Superintendent  of  Police,

Rohtak in the counter affidavit filed on 8.1.2014  and  as  chargesheet  has

been filed against all the nine accused and the trial has commenced  in  the

meantime it will be wholly inappropriate to exercise our jurisdiction  under

Article  32  of  the  Constitution.   The  allegations   and   apprehensions

expressed in the writ petition are not borne out by  the  subsequent  facts,

as stated on behalf of the respondents 2 and 3, which are not disputed.   In

view of the above, we will have no occasion  to  pass  any  order  save  and

except that the  trial  against  the  accused  persons,  which  has  already

commenced, be concluded by the Trial Court with utmost expedition.  We  make

it clear that we have not expressed any opinion on the merits  of  the  case

of the respective parties.  Beyond the above, no further direction  will  be

called for or justified.

 

9.    The writ petition consequently stands disposed of in the above terms.

2014 ( April.Part ) judis.nic.in/supremecourt/filename=41458

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 211 OF 2013
NISHU … PETITIONER(S)

VERSUS

COMMISSIONER OF POLICE,
DELHI & ORS. … RESPONDENT (S)
J U D G M E N T

RANJAN GOGOI, J.

1. This writ application under Article 32 of the Constitution seeks
directions from the Court for registration of first information report
under Sections 376-C, 376-D, 376(2)(n) of the Indian Penal Code; for the
arrest of the accused and for their prosecution after investigation of the
case by the Central Bureau of Investigation. Appropriate action against
the officers of the Delhi and Haryana police by way of departmental
proceedings for their refusal/failure to register the FIR under the
aforesaid sections of the Indian Penal Code as well as the provisions of
The Protection of Children from Sexual Offences Act, 2012 (hereinafter
referred to as ‘the POCSO Act’) has also been prayed for.

2. The facts, in short, are as follows.

The petitioner, who is represented by her father, claims to be a
minor (17-1/2 years) and a resident of village Sundana, Tehsil Kalanaur,
District Rohtak. According to the petitioner, she was kidnapped on
25.10.2013 by a group of nine persons who had kept her confined upto
8.11.2013. It is alleged that during the aforesaid period, the accused
persons, in different combinations, had repeatedly raped her and that one
of the accused, named, Pradeep is a constable in Haryana Police. The
petitioner claims that after her recovery from village Sirol, Sector 18,
Gurgaon, Haryana on 8.11.2013 she was produced before the Judicial
Magistrate First Class, Rohtak for recording her statement. As she was
under threat and intimidation she did not level any allegation of rape
against the accused. The petitioner alleges that despite her medical
examination by the doctor on 10.11.2013, a copy of the report of medical
examination was not furnished to her; neither was any FIR under Section 376-
D of the Indian Penal Code or the provisions of the POCSO Act registered
against the accused persons who have been named in para 18 of the writ
petition. It may be noted at this stage that the aforesaid writ petition
was filed on 29.11.2013 seeking the reliefs earlier noted alongwith
direction for payment of compensation to the petitioner and her family.

3. The respondent No. 1 i.e. Commissioner of Police, Delhi has filed an
affidavit stating that inquiries have revealed that initially a FIR
(319/2013) under Sections 363/366A dated 26.10.2013 was registered in
Police Station Kalanaur, District Rohtak, Haryana on the written complaint
of the father of the petitioner. It is further stated that on the basis of
the statement made by the victim before the learned Judicial Magistrate
First Class, alleging commission of rape by the accused named by her, a
case has been registered and the accused persons have been arrested. As
the matter is under investigation by the Haryana Police, the first
respondent has contended that no order/direction is warranted insofar as
the said respondent is concerned.

4. Respondents 2 and 3 have filed an affidavit on 8.1.2014 through the
Superintendent of Police, Rohtak. In the said affidavit it is stated that
initially FIR No. 319/2013 dated 26.10.2013 was registered at police
station Kalanaur, District Rohtak under Sections 363, 366A and 120-B of the
Indian Penal Code on the written complaint of the father of the petitioner.
On the basis of the investigations carried out by the police, the
petitioner was recovered from village Sirol, Sector-18, Gurgaon and
produced before the Duty Magistrate (Judicial Magistrate First Class)
Rohtak on 9.11.2013. Her statement, which was to the effect that ‘she had
herself left the house’, was recorded by the learned Magistrate on
9.11.2013. The respondents 2 and 3 have further stated that subsequently
the petitioner desired to make a further statement which was refused by the
learned Magistrate, Rohtak on two occasions i.e. 13.11.2013 and 29.11.2013.
As the petitioner persisted with the said request another statement made
by her was recorded under Section 164 Cr.P.C. by the learned Magistrate on
30.11.2013 wherein she had implicated the accused persons in the commission
of rape during the period of her alleged confinement. In view of the said
statement of the petitioner, Section 376-D of the Indian Penal Code and
Sections 4/6 of the POCSO Act were added to the FIR No. 319/2013 which was
already registered. According to the Superintendent of Police, Rohtak all
the nine accused persons have been arrested and are in custody.

5. We have heard Mr. R.K. Kapoor, learned counsel for the petitioner,
Mr. Rakesh K. Khanna, learned Additional Solicitor General for the
respondent No. 1 and Mr. Ankit Swarup, learned counsel for respondents 2
and 3.

6. Learned counsel for the petitioner has vehemently urged that the
petitioner, after being recovered from village Sirol, Sector-18, Gurgaon,
Haryana on 8.11.2013, was unlawfully detained in the police station till
her statement was recorded by the learned Judicial Magistrate First Class
on 9.11.2013. It is further submitted that offences under the POCSO Act
have been committed against the petitioner in addition to the offence under
Section 376-D of the Indian Penal Code. Despite the seriousness of the
matter the investigation, it is alleged, has not been conducted impartially
which would justify appropriate intervention of the Court.

7. Shri Rakesh K. Khanna, learned Additional Solicitor General appearing
for the first respondent has submitted that no order or direction to the
first respondent would be justified in view of the fact that the case has
been registered by the Haryana Police and has been investigated by the
authorities of the State of Haryana. Shri Ankit Swarup, learned counsel
for the respondents 2 and 3 has submitted that on completion of
investigation chargesheet has been filed against all the nine accused who
are in custody and are presently lodged in Rohtak Jail. It is also
submitted that charges have been framed by the Trial Court against the
accused inter alia under Section 376-D IPC and Section 4/6 of the POCSO
Act; in fact, according to the learned counsel, the trial has also
commenced in the meantime.

8. In view of what has been stated by the Superintendent of Police,
Rohtak in the counter affidavit filed on 8.1.2014 and as chargesheet has
been filed against all the nine accused and the trial has commenced in the
meantime it will be wholly inappropriate to exercise our jurisdiction under
Article 32 of the Constitution. The allegations and apprehensions
expressed in the writ petition are not borne out by the subsequent facts,
as stated on behalf of the respondents 2 and 3, which are not disputed. In
view of the above, we will have no occasion to pass any order save and
except that the trial against the accused persons, which has already
commenced, be concluded by the Trial Court with utmost expedition. We make
it clear that we have not expressed any opinion on the merits of the case
of the respective parties. Beyond the above, no further direction will be
called for or justified.

9. The writ petition consequently stands disposed of in the above terms.

 
……………………………CJI.
[P. SATHASIVAM]

 
………………………………J.
[RANJAN GOGOI]

 

 

………….……………………J.
[N.V. RAMANA]
NEW DELHI,
APRIL 24, 2014.
———————–
7

 

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