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2015 Supreme(Mad) 2965

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N.PRAKASH, J.
M.Veerabatharappa - Petitioner
Vs
The Secretary to the Government Home Department State of Tamil Nadu Secretariat and Ors. – Respondents
W.P.No.1353 of 2015 and M.P.Nos.1,2 and of 2015
Decided On : 28.09.2015

Advocates:
Advocate Appeared:
For Petitioner Mr.C.Karl Marx For R1 to R5 Mr. C.Emalias, Addl.Public Prosecutor

Headnote:

Penal Code, 1860 – Sections 376(D) r/w 511, 341, 323 – POCSO Act – Sections 5, 6, 11 – Code of Criminal Procedure, 1973 – Section 164 – Gang Rape – Writ of mandamus – Petition has been filed praying for a writ of mandamus directing the respondents to transfer the investigation pending in Crime No.20 of 2014 on the file of All Women Police Station, Denkanikotta to the 5th respondent to conduct fresh investigation on both gang rape and ex-communication – To give adequate protection to the petitioners family in all possible manners from being ex-communicated – To include the necessary provisions in the FIR and to enforce all the relevant provisions of POCSO Act and Rules in this case – To provide adequate compensation and rehabilitative assistance to the victim child and the family; and to direct the 2nd respondent to register a case against the police officials for harassing the victim and the petitioner and being insensitive in such crimes. – Held, Even the application for default bail under Section 167(2) Cr.P.C. filed by the accused has been dismissed by the trial Court. On 16.03.2015, the police filed an alteration report in Cr.No.20 of 2014 under Sections 341, 323 IPC and Section 5(g) and 6 of POCSO Act, 2012 altering it to 376(D) r/w 511, 341 IPC, Section 11(1) (2) and 12 of POCSO Act. – The Final Report for offences under Sections 376(D) r/w 511, 341, 323 IPC ,11(i) (ii) and 12 of POCSO Act was filed on 23.03.2015 before the Special Court. – When the petitioners conduct itself is suspect and prima facie it appears that he has trumped up false charges of rape against his neighbours who are still languishing in jail, and further the local Police investigation appears to be swayed by public opinion, re-investigation is imperative. – This is not a fit case to transfer the investigation to the CBI, but it will serve the interest of justice if the Final Report is quashed and re-investigation is ordered to be done by the Crime Branch CID, which is an elite police force in the State of Tamil Nadu known for its professional competency. – When once Final Report is quashed, the accused will be entitled to be released on statutory bail under Section 167(2). – Moreover, the accused are in jail for the last nine months. – Final Report in Spl.S.C.No.15 of 2015 in Cr.No.20 of 2015 on the file of the Special Judge, (Fast Track Court) Mahila Court, Krishnagiri is quashed. – Deputy Superintendent of Police, Krishnagiri is directed to handover the case diary to CBCID for the purpose of reinvestigation. – Miscellaneous Petitions Closed

ORDER :

This petition has been filed praying for a writ of mandamus directing the respondents:

(a) to transfer the investigation pending in Crime No.20 of 2014 on the file of All Women Police Station, Denkanikotta to the 5th respondent to conduct fresh investigation on both gang rape and ex-communication;

(b) to give adequate protection to the petitioner's family in all possible manners from being ex-communicated;

(c) to include the necessary provisions in the FIR and to enforce all the relevant provisions of POCSO Act and Rules in this case;

(d) to provide adequate compensation and rehabilitative assistance to the victim child and the family; and

(e) to direct the 2nd respondent to register a case against the police officials for harassing the victim and the petitioner and being insensitive in such crimes.

2. It is the case of the petitioner that his daughter, aged about 13 years, suffers from speech and hearing impairment and that on 25.12.2014, she was raped by four persons and that the police had botched up the investigation and therefore, he has sought for the aforesaid prayers.

3. It may be apposite to extract, verbatim, the version given by the petitioner in his affidavit before this Court.

"3. I state that on 25.12.2014, I along with my wife and 2nd daughter have harvested ragi crop which we have grown in our land and at about 5 p.m., my wife and daughter left home and I stayed there as usual to protect the harvested crop from wild animals. My daughter came back and gave food to me but did not return to home. At around 7 p.m. my wife shouted towards the field calling my daughter to return home. I got stunned as my daughter has went back an hour earlier and she ought to have reached home in 5 minutes but not returned even after an hour. Hence, I went searching for my daughter with a torch light and found her in an unconscious state amidst the bush. I carried her to the House wherein I and my wife become stumbled to see blood stains in her clothes. On removing the clothes we noticed scars all over her body i.e. face, breast and thigh area and bleeding in her private parts. As we sprayed water in her face, she slowly returned to consciousness and started crying. Our daughter told us in action that four persons have waylaid her and has beaten her in the head with a log and had forcefully raped her. She suffered physical pain as well as mental aberration and showed several places in her body where the impression of teeth, scars are visible. As it was very late in the night and as there is no transportation at that time, I could not take her to the Hospital.

4. I state that the next day morning when we came out to go to Hospital, my daughter identified the four persons namely Muthappa, Madhappa, Rudhrappa and Chithalinga. I went to the General Hospital, Denkanikotta Taluk and there she was admitted as an inpatient on 26.12.2014. I and my daughter told the doctor that she has been raped by 4 persons. The Doctor told that the Hospital would inform the police and they would come to the Hospital and enquire. But no one enquired us and I was with my daughter expecting that the police would come and enquire as told by the Doctor."

4. The affidavit further proceeds to state that, since the police investigation was very tardy, several NGO's jumped into the fray in support of the petitioner, drawing the attention of the press and the Government, about which there will be a detailed discussion in the later part of this order. Suffice it to state that this incident had stirred the hornet's nest and the Collector and other revenue officials intervened in the matter. This petitioner filed this writ petition on 09.01.2015 and this Court had issued several directions. It may be relevant to extract the order that was passed on 30.01.2015.

"Heard Mr.N.G.R.Prasad, learned counsel for the petitioner and Mr.A.L.Somaji, learned Advocate General assisted by Mr.V.Jayaprakash Narayanan, learned Special Government Pleader appearing for R1 to R4.

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