Mohd.haroon & Ors. V. Union Of India & Anr.

Mohd.haroon & Ors. V. Union Of India & Anr. [2014] Insc 198 (26 March 2014)

Court Judgment Information

• Year: 2014
• Date: 26 March 2014
• Court: Supreme Court of India
• INSC: [2014] INSC 198

Text of the Court Opinion

(Refortable) IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION 1 WRIT PETITION (CRIMINAL) No. 155 OF 2013 Mohd. Haroon & Ors. . Petitioner (s) Versus Union of India & Anr. . Respondent(s) 2 3 WITH

Writ Petition (Crl.) Nos. 158, 165, 170, 171, 179, 181 196, 206 of 2013, Writ Petition (Crl.) No. 11 of 2014 Contempt Petition (Crl.) No.of 2014 (D1372) In Writ Petition (Crl.) No. 155 of 2013 Transferred Case (Civil) Nos. 123, 124 and 125 of 2013, Transfer Petition (Civil) Nos. 1750, 1825, 1826, 1827, 1828, 1829, 1830 of 2013 AND Special Leave Petition (Civil) No. 35402 of 2013 4

P.Sathasivam, CJI.

1) These writ petitions and other connected matters relate to the riots that broke out on the fateful day of 07.09.2013. The riots erupted in and around District Muzaffarnagar, Uttar Pradesh as a result of communal tension prevailing in the city, which wrecked lives of a large number of people who fled from their homes out of anxiety and fear.

2) It is asserted in these petitions that the communal riot erupted in Muzaffarnagar, Shamli and its adjoining rural areas after a Mahapanchayat which was organized by the Jat community at Nagla Mandaur, 20 kms away from Muzaffarnagar city on 07.09.2013. In the said Mahapanchayat, over 1.5 lakh persons from Uttar Pradesh, Haryana and Delhi participated to oppose the incident which was occurred on 27.08.2013 in Kawal village under Jansath Tehsil of Muzaffarnagar because of which violence broke out between two communities and three youths were killed from both sides in the wake of a trivial incident which had occurred earlier and the whole incident was given a communal colour to incite passion.

3) It is the claim of the petitioners herein that the local administration instead of enforcing the law allowed the congregation not only to take place, negligently and perhaps with certain amount of complicity, but also failed to monitor its proceedings. It is asserted in the petitions that since 27.08.2013 more than 200 Muslims have been brutally killed and around 500 are still missing in the spurt of the incident in 50 villages of the Jat community dominated areas where the Muslim community is in minority. It is the stand of the petitioners that in the remote villages more than 40,000 persons have migrated under threat and have been forcibly asked to move out of the village otherwise they would be killed. It is further alleged that many thousand persons including infants, children, women and elderly are without food and shelter in various villages, and no facilities are being made available by the administration.

Besides this, huge illegal and unauthorized arms and ammunitions have been recovered in and around Muzaffarnagar. It is also pointed out that the displaced persons of all communities are compelled to live in shelter camps where adequate arrangements are becoming the problem of survival.

4) Consequently, several writ petitions, under Article 32 of the Constitution, were filed by various individuals/Supreme Court Bar Association/NGOs seeking for an inclusive protection for each victim whose fundamental rights have been infringed in the said riot by praying for numerous rehabilitative, protective and preventive measures to be adhered to by both the State and the Central Government.

5) There are various contra-allegations about the actual occurrence and reasons attributed to the cause by different community people. It is relevant to point out that an association representing Jat community has also approached this Court highlighting their stand. It is stated that on the pressure of the other group, innocent persons are being picked up and are being incorporated in the FIR without conducting any inquiry and they are being arrested for none of their faults. Thus, it is the stand of the petitioners in this petition that the State has failed in its duty to ensure the security in the area.

6) It is also pointed out that the State Government transferred the Jat community officers alone from the districts of Muzaffarnagar and Shamli to other parts of the State. It is their claim that in order to remove the apprehension from the minds of the Jat community people, it is desirable either to entrust the investigation to the CBI or to constitute SIT comprising persons from outside the State of Uttar Pradesh. They also predominantly prayed for registration of FIRs against all culprits including powerful persons.

7) Similar petitions were also filed in the High Court of Allahabad. In view of the similarity of the issues involved in these petitions, viz., reasons for such violence, rehabilitation measures, compensation for the loss of lives and properties, action against offenders/culprits, all the matters pertaining to the said incidents filed in the High Court of Allahabad were directed to be transferred to this Court by order dated 19.09.2013. Writ Petition pertaining to Rape Cases 8) Serious allegations have been made against the State Police for not providing adequate security to women which resulted in several rapes being committed during the said communal violence. The petition also highlights the inaction on the part of State Police against the real culprits and the indifferent attitude towards the victim’s rehabilitation and security.

9) Rape victims (Seven) filed Writ Petition (Criminal) No. 11 of 2014 for protection of their right to life under Article 21. All the 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. It is the assertion of the petitioners in this petition that their homes were destroyed and they were rendered homeless with no roof over their heads, they lost their earnings and it has become difficult for them to take care of their children and themselves.

10) It is further pleaded that 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. It is the stand of the petitioners 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. It was further submitted that in these circumstances, the delay on the part of the petitioners in lodging FIR is reasonable and does not, in any way, impact on the veracity of their complaints of gang rape.

11) It is further stated by the petitioners that after registration of FIR under Section 154 of the Code of Criminal Procedure, 1973, (in short ‘the Code’) and recording of statements under Section 161, the law prescribes that under Section 164(5A) of the Code, for all sexual offences including crime of rape, the police shall have the statement of the woman against whom the offence has been committed recorded before a Judicial Magistrate as soon as the commission of offence is brought to the notice of the police. It is stated that even though Petitioner Nos. 1, 3, 4, 5 and 6 had lodged the FIRs in September, 2013 and Petitioner No. 2 had lodged the FIR in early October, 2013, the police deliberately and with mala fide intention dragged the investigation. Their statements under Section 164(5A) of the Code were recorded as late as in December, 2013 after the delay of almost three months.

12) It is also highlighted that Section 164A of the Code provides for medical examination of the rape victim and casts a statutory duty upon the police to send the woman making the complaint of rape to a registered medical practitioner within twenty four hours from the time of receiving information regarding the commission of such an offence. In the case of the petitioners, in direct contravention of this legal provision, the police knowingly delayed their medical examination. The petitioners are all married women having children, hence, their medical examination almost 20-40 days after the incidents of gang rape is unlikely to provide any perpetrated evidence. It is further pointed out that the petitioners were gang raped on 08.09.2013 whereas the medical examination was conducted between 29.09.2013-18.10.2013. 13) In the case of Petitioner No.7, in spite of specific information, there is no reason as to why FIR was not registered. It was only during the hearing before this Court, on 13.02.2014, when the counsel for Petitioner No.7 handed over the copy of the complaint to the counsel for the State, an FIR was registered on 18.02.2014 14) Further, it is the grievance of the petitioners that FIRs of all the petitioners were registered under Section 376D of the Indian Penal Code, 1860 (in short ‘the IPC’) a specific provision relating to gang rape.

Though Section 376(2)(g) of the IPC is squarely applicable to the crimes of gang rape that have been committed against the petitioners during the communal violence in September, 2013, the police has specifically omitted to include Section 376(2)(g) of the IPC in order 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 motivated investigation by the police is clear and manifest and done with the sole purpose of shielding the accused.

15) It is further submitted that though Petitioner Nos. 1-6 named total 22 men as accused in six FIRs, only in February 2014, one accused, namely, Vedpal, who was named in FIR No. 120 of 2013 was arrested. Even after lapse of four and a half months, 21 named as accused by the petitioners of the heinous crime of gang rape during communal violence roam free. Neither those persons were arrested nor any proceedings have been initiated under Section 83 of the Code. The petitioners claimed in the petition that the accused are roaming free and enjoying the support of dominant community, Khap Panchayat, political parties and besides because of their closeness, they are also intimidating the victims. Thus, it is the stand of the petitioners that unless the police give protection to the victims and witnesses, it would be impossible for them to depose against the persons involved in the gang rape.

16) The petitioners have also disputed the claim of the State in disbursing compensation. It was asserted that they were not paid compensation much less the adequate compensation. Further, a prayer was made for transfer of cases of gang rape outside the State of U.P. in the larger interest of the society and in order to ensure fair investigation, prosecution and trial of the cases relating to Petitioner Nos. 1 to 7. Finally, they asserted in the petition that if the investigation is not transferred to SIT comprising the officers of integrity from the States other than U.P., there cannot be justice for sexual violence suffered by them due to inaction on the part of the State of U.P.

Details Regarding Petitions:

17) On the whole, the following writ petitions/intervention applications/special leave petition pertaining to the aforesaid incidents, have been filed in this Court:

(a) Writ Petition (Crl.) Nos. 155, 158, 165, 170, 171, 179, 181 196, 206 of 2013 and Writ Petition (Crl.) No. 11 of 2014 (b) Crl. M.P. Nos. 19442, 20245, 20247, 26156, 24202, 26705, of 2013 in Writ Petition (Crl.) No. 155 of 2013 and Crl. M.P. Nos. 1516-1518 of 2014 in Writ Petition (Crl.) No. 155 of 2013, Crl. M.P. No. 19878 of 2013 in Writ Petition (Crl.) No. 165 of 2013, Crl. M.P. Nos.19971, 20460 of 2013 in Writ Petition (Crl.) No. 158 of 2013, Crl. M.P. Nos. 1523 of 2014, 2965 2966 of 2014 in Writ Petition (Crl.) No. 170 of 2013, Crl. M.P. No. 23077 of 2013 in Writ Petition (Crl.) No. 171 of 2013, Crl. M.P. Nos. 24192 of 2013 in Writ Petition (Crl.) No.179 of 2013, Crl. M.P. No. 1124 of 2014 in Writ Petition (Crl.) No. 179 of 2013, Crl. M.P. No. 1895 of 2014 in Writ Petition (Crl.) No. 11 of 2014 and Crl. M.P. No.of 2014 in Writ Petition (Crl.) No. 155 of 2013 (c) Contempt Petition (Crl.) No.of 2014 (D1372) in Writ Petition (Crl.) No. 155 of 2013 (d) Special Leave Petition (Civil) No. 35402 of 2013 18) Apart from the above matters, we were also called upon to deal with the following cases from the High Court of Allahabad:

(a) Transferred Case (Civil) Nos. 123, 124 and 125 of 2013 (b) Transfer Petition (Civil) Nos. 1750, 1825, 1826, 1827, 1828, 1829, 1830 of 2013 Reliefs and Directions:

19) The reliefs and directions sought for in these matters are broadly classified as follows:

(a) Firstly, to 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.

(b) Secondly, to order a CBI Inquiry into the whole incident.

(c) Thirdly, to constitute Special Investigation Team (SIT) headed by impartial experts of criminal investigation from the States other than Uttar Pradesh to investigate the incidents having taken place from 27.08.2013 to 08.09.2013 in Muzaffarnagar and adjoining districts.

(d) Fourthly, to ensure proper and adequate rehabilitation of the victims whose houses have been burnt, properties got damaged and to provide immediate temporary shelters/transit camps, food and clothing.

(e) Fifthly, to issue direction to lodge FIR against all persons including the government officials who are responsible for failure to maintain the law and order within time.

(f) Sixthly, to direct to pay ex-gratia relief of Rs. 25,00,000/- each to the kin of the deceased and Rs. 5,00,000/- each to the injured from the Prime Minister’s Relief Fund as well as from the corpus of the State of Uttar Pradesh.

(g) Seventhly, 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 (h) Lastly, 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.

20) The prayers sought for by the petitioners in the aforesaid petitions are all in one way or other seeking for enforcement of fundamental rights guaranteed under the Constitution and it is the Constitutional obligation of this Court to intervene and admonish such violation of human rights and issue appropriate orders for rehabilitation while simultaneously issuing directions to ensure that no recurrence of this nature is witnessed by this country in times to come.

Interim monitoring orders issued by this Court:

21) On 12.09.2013, this Court, on going through various allegations levelled in the petitions, took on board the Writ Petition (Crl.) No. 155 of 2013 and the connected matters for examining the issues. Even at the preliminary hearing, Mr. Ravi P. Mehrotra, then standing counsel, accepted notice on behalf of the State of U.P. and its officers. After hearing the arguments of Mr. Gopal Subramanium and Mr. M.N. Krishnamani, learned senior counsel for the petitioners as well as Dr. Rajeev Dhawan, then learned senior counsel for the State of U.P., this Court issued the following directions:

“On going through various allegations levelled in the writ petitions, we are inclined to examine the matter. At present, we 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 and are given minimum amenities of food and water and to make adequate arrangements for their stay, till rehabilitation and restoration takes place in their respective places. It is further directed to provide necessary medical treatment to all wounded and needy persons and also while lifting them to hospitals, either at Meerut or Roorkee, if required hospitals at Delhi or any other suitable places.

The State of U.P., as well as the Central Government, is directed to file the compliance reports by their senior officers on the next date of hearing.

Learned counsel for the parties are permitted to file additional documents.

List on Monday (16.09.2013) at 2.00 p.m.” 22) Again, when this batch of cases was listed on 19.09.2013, after hearing counsel for the petitioners as well as the respondent-State, this Court, in the interest of justice and in view of the fact that this Court is monitoring the entire incident, directed that all cases pending on the file of the High Court at Allahabad be transferred to this Court and further made it clear that if there is any grievance pertaining to the aforesaid incident, they are free to approach this Court for necessary relief/directions. Further, this Court issued the following directions:

“.Though, Mr. Gopal Subramanium, learned senior counsel appearing on behalf of the petitioners in W.P.(Crl.) No. 155 of 2013 after taking us through the compliance report/affidavits filed by Respondent Nos. 1 and 2 submitted that the steps taken by the said respondents are inadequate, however, it cannot be claimed that they have not taken effective steps. However, on going through the details mentioned in the respective affidavits as well as the reply filed by the petitioners, we direct both the respondents viz., Union of India and State of U.P. to provide the required assistance/facilities as directed in our order dated 12.09.2013. During the course of hearing, 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. The above statement of both the respondents are hereby recorded.

In order to ascertain the further development and the steps taken by both the respondents, we adjourn the matter till next Thursday, i.e., 26th September, 2013. Respondent Nos. 1 & 2 are directed to file further report on that day.

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