Back
2018 Supreme(All) 583
ALLAHABAD HIGH COURT
BEFORE : DILIP B. BHOSALE, C.J. AND SUNEET KUMAR, J.
IN RE.-AN UNFORTUNATE INCIDENT IN UNNAO OF RAPE AND MURDER PUBLISHED IN VARIOUS NEWSPAPERS ....Petitioner
Versus
STATE OF U.P. ....Respondent
(Criminal Writ-Public Interest Litigation No. 1 of 2018, decided on 13th April, 2018)
Counsel :
Gopal Swarup Chaturvedi (A.C.) for the Petitioner; Raghvendra Singh (A.G.), Neeraj Tripathi (Additional A.G.), S.A. Murtaza (A.G.A.) and Ramanand Pandey (Additional C.S.C.) for the Respondents.
Headnote:(A) Criminal Procedure Code, 1973—Sections 41, 42—(Indian) Penal Code, 1860—Sections 363, 366, 376-D—Protection of Children from Sexual Offences Act, 2012—Sections 3, 4—Rape—Arrest—Police not arresting accused on pretext that no arrest to be effected merely on basis of FIR—and stating that after recording statements of witness including accused and prosecutrix under Section 161 Cr.P.C. IO will decide whether arrest is necessary—Procedure unknown to criminal jurisprudence—Further such procedure not being followed by Investigating Agency in State of Uttar Pradesh in all such cases—Bonafide of police officer doubtful—Accused directed to be arrested. [Paras 18, 19 and 21]
(B) Delhi Special Police Establishment Act, 1946—Sections 5, 6—Investigation—Direction to CBI—Can be given by writ Court even in absence of consent of State—However such extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations—Or where incident may have national and international ramifications—Or where such an order may be necessary for doing complete justice and enforcing fundamental rights—In instant case investigation not fair and further investigation necessary—Investigation directed to be conducted by CBI. [Para 23]
Result; Order Accordingly.
By the Court.—Heard Mr. Gopal S. Chaturvedi, learned Senior Advocate, Amicus Curiae and learned Advocate General.
2. On 11 April 2018, Mr. Gopal Chaturvedi, at 10.00 a.m. presented a letter in the open Court with news paper cuttings, drawing our attention to the incident at Unnao, where a minor girl was allegedly raped by a Member of Legislative Assembly, Mr. Kuldeep Singh Sengar. We immediately directed the office to register the letter as Public Interest Litigation. Our order dated 11.4.2018, reads thus:
“Mr. Gopal S. Chaturvedi, learned Senior Advocate, presented a letter addressed to the Chief Justice, requesting to take a suo motu cognizance of the incident that has taken place in district Unnao, where a girl was allegedly raped by a Member of Legislative Assembly, Mr. Kuldeep Singh Sengar of Bangarmau Constituency and his aides. He submits that though the offence came to be registered on the basis of First Information Report lodged by father of the girl, naming Mr. Kuldeep Singh Sengar as main accused, the Investigating Agency has not arrested him till today.
What is disturbing, as submitted by Mr. Chaturvedi, is that the father of the prosecutrix, for no reason, came to be arrested and was in custody, where, we are informed, he was mercilessly beaten and succumbed to the injuries yesterday, i.e. 10.4.2018. We fail to understand why the Investigating Agency instead of arresting accused persons, they arrested complainant, in connection with this case.
We direct the office to register the letter of Mr. Chaturvedi, learned Senior Advocate dated 11.4.2018 as PIL and place it before this Court tomorrow, as fresh matter. We also direct Mr. Ramanand Pandey, learned Additional Chief Standing Counsel for the State, to inform the Advocate General/Additional Advocate General to appear in the case. We request Mr. Gopal S. Chaturvedi to appear in the case as Amicus Curiae.
S.O. to 12.4.2018. as fresh matter.”
3. Yesterday when the matter was taken up, learned Advocate General, assisted by Additional Advocate General Mr. Neeraj Tripathi with two top police officers, including the one who led the SIT constituted by the Government of Uttar Pradesh, with the entire record of cases were present in the Court. We have heard Mr. Gopal Chaturvedi and Advocate General at considerable length and with their assistance gone through the material to which our attention was drawn.
4. At the outset, learned Advocate General has informed the Court that First Information Report (FIR) was registered by mother of the prosecutrix, bearing Case Crime No. 0316, on 20 June 2017, for the offences under Sections 363, 366 IPC, against Awdhesh Tiwari and Shubham. During investigation, one Brijesh Yadav alongwith the other named accused was taken into custody, and offence under Section 376-D IPC and 3/4 Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was added. The investigation in this case got over long back and accused have been charge-sheeted, thereafter, enlarged on bail. This FIR was in connection with the alleged incident of kidnapping and gang rape occurred during 11 June and 20 June 2017. It is not in dispute that the prosecutrix is minor - aged about 17 years and has studied upto sixth standard.
5. It appears, that according to the complaint and the prosecutrix, though they named Kuldeep Singh, MLA also in the said complaint, the police did not take down his name nor did they allow her to make any allegations/complaint against him. In other words, her complaint against Kuldeep Singh, was, however, not registered. Consequently, prosecutrix made a complaint to the Chief Minister, in her own hand writing, of the incidents that had occurred on 4 June 2017 and between 11th and 20th June 2017, making allegation of rape, in particular against Kuldeep Singh, who allegedly committed rape on that day (4.6.2017). The complaint was endorsed to the Superintendent of Police, Unnao, by the Special Secretary to the Chief Minister to make inves
