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2019 Supreme(Raj) 449
IN THE HIGH COURT OF RAJASTHAN
KANWALJIT SINGH AHLUWALIA, GOVERDHAN BARDHAR, JJ.
Naresh Kumar Yadav - Appellant
Versus
State of Rajasthan, Thr. Home Secretary, Govt. Secretariat, Jaipur and Others - Respondent
Habeas Corpus Petition No. 53 of 2019
Decided On : 27-05-2019
For the Appellant :Mr. Sikander Ali with Mr. Gaurav Singh Tanwar, Advocates
For the Respondent:Ms. Alka Bhatnagar, Additional Govt., Advocate
The paramount welfare of the victim is the primary consideration in determining custody.
Headnote:
CUSTODY OF MINOR VICTIM OF RAPE - CHILD WELFARE COMMITTEE - VICTIM COMPENSATION SCHEME - WITNESS PROTECTION PROGRAMME - ACT SECTION LISTED - SUMMARY OF ACTS AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT - KEY LEGAL PROVISIONS, THEIR INTERPRETATIONS, AND HOW THEY INFLUENCED THE COURT'S DECISION - LEGAL FRAMEWORK APPLIED BY THE COURT IN REACHING ITS DECISION.
Fact of the Case:
A minor victim of rape was granted custody to her parents by the Child Welfare Committee. The victim expressed her desire to stay with the convicted rapist, Raj Kumar Yadav, who was sentenced to life imprisonment. The court took suo moto cognizance of the case and directed the victim to stay with Ms. Alka Bhatnagar, Additional Govt. Advocate, for a week to decide about her future course.
Finding of the Court:
The court found that the victim was in great distress and suffering from mental agony and pain. Her paramount welfare required that she be permitted to stay in a congenial atmosphere. The court appreciated the gesture shown by Ms. Alka Bhatnagar, Additional Govt. Advocate, who agreed to take the victim in her foster care.
Issues: 1. Whether the victim should be granted custody to her parents or allowed to stay with the convicted rapist. 2. Whether the victim is entitled to compensation under the Victim Compensation Scheme. 3. Whether the victim and her parents need protection from the convicted rapist.
Ratio Decidendi: 1. The court held that the paramount welfare of the victim required that she be permitted to stay in a congenial atmosphere. 2. The court directed the Secretary, Rajasthan State Legal Services Authority, to immediately pay compensation to the victim in pursuance of the judgment passed by the trial court. 3. The court directed the Superintendent of Police, Jaipur(Rural) District Jaipur, to ensure necessary vigil that no harm is caused to the life and liberty of the victim and her parents.
Final Decision: The court disposed of the petition by directing the victim to stay with her parents as ordered by the Child Welfare Committee. The court also directed the Secretary, Rajasthan State Legal Services Authority, to pay compensation to the victim under the Victim Compensation Scheme. The court further directed the Superintendent of Police, Jaipur(Rural) District Jaipur, to ensure necessary vigil that no harm is caused to the life and liberty of the victim and her parents.
1. The present writ petition has been filed under Article 226 of Constitution of India praying that custody of minor daughter be given to the petitioner.
2. A co-ordinate Bench on 01.03.2019 had issued notice directing State Government to produce victim(name withheld to protect her identity) in this court.
3. We are informed that during pendency of the present petition victim was recovered. Court of Magistrate had sent her to Balika Grah, subsequently, Child Welfare Committee had granted custody of the victim to the parents. In pursuance of earlier order dated 01.03.2019, on 21.05.2019 victim appeared before us and we passed the following order:-
"As per the police record, victim (name withheld to protect identity) was born on 06.07.2001. Today she has been produced before us by Mr. Dinesh Kumar, Deputy Superintendent of Police, Circle Officer, Kotputli.
Victim made a request to us that her parents and police officials be sent outside the court.
Accepting her request, we directed parents and police officials to go out of the court room.
Victim has stated that she intends to stay with Raj Kumar Yadav son of Sardar Singh who has been convicted for offence of rape under Section 376(2)(g) of Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs. 25,000. She has further stated that for a period of one week she may be permitted to stay alone to decide about her future course.
We are informed that in the present case, custody of the victim has been given to the parents by the Child Welfare Committee. At this juncture, without commenting upon the merits of the case, we find that victim produced before us is in great distress and is suffering from mental agony and pain. Her paramount welfare require that she be permitted to stay in a congenial atmosphere.
Ms. Alka Bhatnagar, ld. Additional Govt. Advocate, who has a long standing in the profession has agreed to take victim in her foster care. She has assured us that she will keep victim at her house and she shall be provided good clothes, food and home stay
We appreciate the gesture shown by Ms. Alka Bhatnagar, Additional Govt. Advocate. victim is permitted to accompany Ms. Alka Bhatanagar, ld. Additional Govt. Advocate.
Ms. Alka Bhatnagar, ld. Additional Govt. Advocate, shall produce Karishma before us on 27.05.2019.
We also direct SHO Police Station Mansarover, to depute two lady constables at the house of Ms. Alka Bhatnagar, ld. Additional Govt. Advocate.
Ms. Alka Bhatnagar, ld. Additional Govt. Advocate, shall communicate this order to SHO Police Station Mansarover.
Copy of this order be handed over to Ms. Alka Bhatnagar, Additional Govt. Advocate, under the seal and signature of Court Master."
4. In order dated 21.05.2019 reproduced above, we have withheld the name of victim. For a period of one week, victim stayed at the residence of Ms. Alka Bhatnagar, ld. Additional Govt. Advocate. She has been looked after well by Ms. Alka Bhatnagar, ld. Additional Govt. Advocate. We appreciate the services rendered by Ms. Alka Bhatnagar, ld. Additional Govt. Advocate.
5. Victim has narrated her woeful story. She has stated when the accused Raj Kumar Yadav came on parole under the threat she went and stayed with him. She further stated that she want to pursue her studies but since her parents are very poor, they are unable to afford her education. She has further stated that she apprehend danger to her life at the hands of Raj Kumar Yadav. Let the victim accompany her parents and stay with them as ordered by concerned child welfare committee.
6. A perusal of the record reveal that Raj Kumar Yadav son of Sardar Singh resident of Chaaja, Police Station Patan District Sikar(Raj.) was tried and convicted by the court of Special Judge POCSO Act Cases(Additional Sessions Judge No. 2) Sikar (Raj.). The trial Judge in Para 46 of the Judgment has already issued a direction to Rajasthan State Legal Service Authority to pay compensation to the victim under the Victim Compensation
