NESEEHA C.S. v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: ## THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 11TH DAY OF APRIL 2014/21ST CHAITHRA, 1936 WP(C).No. 4829 of 2014 (R) ------------------------- ## PETITIONER(S)/PETITIONER: ---------------------- NESEEHA C.S. D/O.SUDHEER, CHOUTHIPARAMBIL HOUSE, VANIYAKKAD NORTH PARAVUR, NOW RESIDING AT GOVERNMENT GIRLS HOME KAKKANAD, ERNAKULAM. BY ADVS.SRI.RENJITH THAMPAN (SR.) SRI.P.A.AYUB KHAN ## RESPONDENT(S)/RESPONDENTS: -------------------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY DEPARTMENT OF HOME SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. SECRETARY, DEPARTMENT OF SOCIAL WELFARE, SECRETARIAT THIRUVANANTHAPURAM-695001. 3. CHILDREN'S WELFARE COMMITTEE, KAKKANAD, ERNAKULAM, REPRESENTED BY ITS SECRETARY PIN-682030. 4. ELECTION COMMISSIONER OF INDIA, NIRVACHAN BHAVAN, NEW DELHI. **W.P. (C ) NO. 4829 OF 2014** **2** 5. CHIEF ELECTORAL OFFICER, LEGISLATIVE COMPLEX, THIRUVANANTHAPURAM, PIN-695001. 6. HIGH COURT OF KERALA, ERNAKULAM, REPRESENTED BY REGISTRAR SUBORDINATEJUDICIARY, PIN-682031. 7. BIJO ALEXANDER, - ASSISTANT COMMISSIONER OF POLICE, THRIKKAKARA ERNAKULAM, PIN-682028. 8. PRINCIPAL DISTRICT AND SESSIONS JUDGE, - DISTRICT COURT, ERNAKULAM, PIN-6802031. - R4 & 5 BY ADV. SRI.MURALI PURUSHOTHAMAN, (STANDING COUNSEL) ELECTION COMMISSION BY ADV. DIRECTOR GENERAL OF PROSECUTION, SRI.ASAF ALI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.P. (C ) NO. 4829 OF 2014** **3** ## WP(C).No. 4829 of 2014 (R) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS -------------------- EXT.P1 COPY OF THE REPRESENTATION DATED 30.01.2014 FILED BY THE PETITIONER BEFORE THE CHIEF MINISTER. EXT.P2 COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. EXT.P3 COPY OF THE RELEVANT PART OF THE JUDGMENT IN WP(C) NO.28139/2011 DATED 21.11.2011. **4** ## **W.P. (C ) NO. 4829 OF 2014** EXT.P4 COPY OF HE GOVERNMENT ORDER G.O.(Rt.) RESPONDENT(S)' EXHIBITS --------------------------------------- ## **N.K.BALAKRISHNAN, J.** .............................................................. ## **W.P.(C). No. 4829 of 2014** .................................................................. ## **Dated this the 11[th] day of April, 2014** ## **JUDGMENT** This petition is filed by the defacto complainant/victim in Crime No.346/2011 of North Paravur Police Station. The following are the reliefs sought for in this petition:- _(i) issue a writ in the nature of mandamus commanding the respondents 1 to 3 and 6 to ensure that Cr.No.346/2011 of North Paravur Police Station (111/11 of CBCID HHW - 11, Ernakulam) is assigned to the Additional Sessions Court, North Paravur and further direct the Additional Sessions Court, North Paravur to dispose of the cases committed to the said Court in Cr.346/2011 of North Paravur Police Station within such time as may be fixed by this Hon'ble Court._ **W.P.(C) No. 4829 of 2014** **2** _(ii) issue a writ in the nature of mandamus commanding the respondents 4 and 5 not to transfer the 7[th] respondent from Ernakulam under the guise of general transfer during general election, disturbing him as the head of Special Investigation Team in Cr.346/2011 of North Paravur Police Station._ _(iii) issue a writ in the nature of mandamus commanding the 5[th] respondent to consider and pass orders on Ext.P2 within such time as may be fixed by this Hon'ble Court and until then not to transfer the 7[th] respondent out of Ernakulam so as to disturb him as head of special investigation team in Cr.346/2011 of North Paravur Police Station._ _(iv) issue such other orders, writs or directions as are deemed fit by this Hon'ble Court._ 2. It is stated that out of 15 cases in which charge sheets were filed 11 cases were committed to the court of Session; out of which, six cases were already disposed of. **W.P.(C) No. 4829 of 2014** **3** In those cases most of the accused persons were convicted by the trial court. It is also stated that in two cases the trial is in progress and other cases are posted for framing charge. The learned Sessions Judge is taking earnest effort to dispose of the cases which are available for trial. 3. The main grievance of the petitioner/defacto complainant is that the 7[th] respondent, who was conducting investigation in this case should be allowed to continue the investigation and he should not be transferred. The learned Director General of Prosecution and State Prosecutor, Sri. Asaf Ali, submits that the 7[th] respondent has already been transferred. The learned senior counsel for the petitioner submits that though he was transferred earlier, he was allowed by the Government to continue the investigation in this case. But subsequently, an order was passed by the Additional Director General of Police (Crimes), Thiruvananthapuram constituting a Special Investigating Team for expediting the investigation in this case. That **W.P.(C) No. 4829 of 2014** **4** team is ordered to be headed by Sri.K.G.Simon, Superintendent of Police, HHW-II, Ernakulam. There was allegation against the 3[rd] officer mentioned in that list/Team. Subsequently he was removed from the investigating team. 4. It is pointed out that two other Circle Inspectors by name Tipson and Ayyappan were also included in the investigating team against whom also there were no complaints. 5. It was vehemently argued by the learned senior counsel for the petitioner that as per the order issued by the Additional Director General of Police (Crimes) it was directed that the Inspector General of Police, HHW SCO will monitor the investigation of the case and regularly inform the progress in the investigation of the case to ADGP (Crimes). It was submitted that one Jayarajan is the Inspector General of Police, against whom there were complaints. The learned DGP, after getting instructions, **W.P.(C) No. 4829 of 2014** **5** submitted that Mr.Jayarajan mentioned above is not the Inspector General of Police who is to monitor the investigation but in fact, Sri.T.J.Jose, is the Inspector General of Police who is to monitor the investigation. 6. The learned DGP submits that incorrect statements were made by the petitioner to make it appear that tainted police officers were included in the investigating team to topple the investigation. It is further submitted by the learned DGP that the investigation is now directed to be headed by Sri.K.G.Simon, Superintendent of Police, against whom no complaint whatsoever was made by the petitioner. It is further submitted that Sri.K.G.Simon, the Superintendent of Police could prove his efficiency by conducting very sensational crimes and that is why he was chosen to conduct and complete the investigation in this case, so as to avoid any further delay and thereby minimise the trauma and eliminate the apprehension expressed by the victim. The contention that the 7[th] respondent (in the **W.P.(C) No. 4829 of 2014** **6** rank of Dy.S.P./Asst. Commissioner of Police) should himself conduct the investigation would make it clear that he (R7) is actually behind in filing this petition, the learned DGP submits. It is vehemently argued by the learned senior counsel that no specific allegation was made against the 7[th] respondent so as to remove him from the investigating team. But it is pointed out by the learned DGP that much delay was caused by the 7[th] respondent in completing the investigation. Not only that, he was already transferred and so it is not just or proper to direct the very same officer to conduct the investigation. Besides, there can be no allegation against Sri.K.G.Simon, Superintendent of Police, who is heading the investigation. 7. It is also submitted by the learned DGP that the Assistant Sub Inspectors of Police and other police officials who were the members of the investigation and who conducted investigation earlier, are still in the investigating team and they are continuing the investigation and so the **W.P.(C) No. 4829 of 2014** **7** petitioner can have no grievance at all. It is further submitted that since the Superintendent of Police, HHW, is an officer against whom no complaints are there, the petitioner can rest assure that the investigation will be conducted fairly, properly, effectively and would be completed without delay. 8. The order was issued by the Additional DGP (Crimes) since delay was caused by R7 in the investigation of the case and that is why a Special Team headed by Sri.K.G.Simon, Superintendent of Police has been constituted. It is further submitted by the learned DGP that as the Addl.DGP (Crimes) issued the order, he will certainly look into the matter if and when any complaint is raised regarding the manner of investigation. The order issued by him directs that ADGP (Crimes) is to be informed of the progress in the investigation of the case. That means the ADGP (Crimes) also takes up the responsibility to have a fair, proper, impartial and speedy investigation. It was **W.P.(C) No. 4829 of 2014** **8** stated that Sri.T.J.Jose (I.G. Of Police) mentioned above was also suspended earlier since there was complaint that he had leaked the investigation in connection with the 'Solar scam'. 9. The learned DGP submits that the officers included in the investigation team are officers against whom there were no complaints and so complainant/petitioner need not have any apprehension that the investigation will be toppled. It is further submitted that it is the responsibility of the second respondent/Government of Kerala, to see that the investigation is conducted fairly, properly and without delay and it is actually to promote and protect the interest of the victim and to eliminate any doubt in the mind of anybody for that matter that a special investigating team has been constituted. The bonafides need not be doubted at all, the learned DGP submits 10. The learned senior counsel for the petitioner submits that the rape survivors are entitled to legal **W.P.(C) No. 4829 of 2014** **9** recourse that does not re-traumatise them or violate their physical or mental integrity and dignity. The decision of the Hon'ble Supreme Court in **Lillu @ Rajesh and another v. State of Haryana (2013 (2) KLT 868** has also been referred to. It was observed by the Hon'ble Supreme Court that “a rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e., her dignity, honour, reputation and chastity.” Therefore, the courts should deal with such cases sternly and severely. The learned senior counsel has also referred to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of the UN General Assembly where it is stated that victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered. There can be no doubt that such measures should be taken in order to minimize, **W.P.(C) No. 4829 of 2014** **10** inconvenience to victims, protect their privacy, when necessary, and ensure safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation. Unnecessary delay should also be avoided. 11. The learned DGP submits that the respondent/ State has got very much concern about the safety and security of the complainant girl and it is also the concern of the respondent that no inconvenience is caused to the victim. Sri.K.G.Simon has not started investigating the offence. It is not proper to pre-judge and impute incompetency or unfairness when there is no allegation about the integrity or impartiality of that officer, the learned DGP submits. It is further submitted that since other police officials who were in the investigating team continue to be there and since the statements of the complainant in most of such cases were already recorded, the question of again recording her statement in those cases would not arise, unless there are matters which **W.P.(C) No. 4829 of 2014** **11** require further clarifications or details. Investigating team will punctiliously observe that the dignity of the victim is not in any way affected and that she is not in any way retraumatised under the pretext of questioning her again. The victim should be given all such safeguards. The investigating team should ensure the same. 12. It is needless to say that the investigating team should be very cautious and should not in any way cause any inconvenience to the victim girl and that the investigation shall be done fairly and properly and it should be completed at the earliest so as to put the accused persons to trial. The fact that the victim girl may have to undergo the agony till the disposal of all the cases should certainly be borne in mind by the investigating team. The Superintendent of Police, who is heading the investigation should certainly look into those matters. 13. It is too early to doubt the bonafides of the action taken by the Addl. D.G. P. (Crimes - Sri. **W.P.(C) No. 4829 of 2014** **12** Ananthakrishnan) in constituting the Special Investigation Team or in ordering Sri.K.G.Simon, the Superintendent of Police to head the investigation. Sri.K.G.Simon would certainly take note of the apprehension expressed by the victim girl. He would certainly bestow his attention to see that the investigation is done fairly and properly without any flaw for, if ultimately any flaw occurs in the investigation, Addl. DGP (Crimes), the I.G. of Police (Crimes) and the Superintendent of Police Sri.K.G.Simon may have to bear the brunt. Therefore, they should be doubly cautious in conducting the investigation. If, at a later point of time, the petitioner notices any flaw in the investigation, then certainly that is a matter which can be then raised before court. But now, before Sri.K.G.Simon starts the investigation and proceeds further in the matter, it will not be just or proper to say that he will not head or lead the investigation correctly and properly, nor will it be correct to doubt his efficiency, competency and fairness. **13** ## **W.P.(C) No. 4829 of 2014** 14. Therefore, in the light of what is stated above, this petition is disposed of as stated above. The investigation shall be continued by the officers mentioned in the Special Investigating Team without any room for doubt as to their fairness, impartiality, efficiency and integrity. The investigation shall be completed and charge sheets shall be filed at the earliest to have successful prosecution in those cases so as to redress the grievance of the petitioner/victim and to ensure justice to her. Dated this the 11[th] day of April 2014. ## **N.K.BALAKRISHNAN, JUDGE** das/ani/