RASHMI BEHLversusSTATE OF U.P. & ORS.

                      (2015] 2 S.C.R. 448


A                       RASHMI BEHL

                               v.

                   STATE OF U.P. & ORS.
B         (Writ Petition (Criminal) No. 218 of 2013)

                    FEBRUARY 17, 2015

        (M.Y.EQBAL AND SHIVA KIRTI SINGH, JJ.)
c      Constitution of India, 1950 - Articles 14, 21 and 32
  - Writ Petition under Article 32 - Seeking enforcement
  of rights under Articles 14 & 21 in as much as FIR
  lodged by the petitioner u/ss. 366, 323, 504 and 376
  /PC neither statements uls. 164 CrPC were recorded
0
  nor her medical examination uls. 164A CrPC was done
  - Petitioner alleged of her abduction, assault and rape
  by her father and his accomplices - She also alleged
  that her family was forcing her for flesh trade
E (prostitution) and that she was forcibly taken by her
  parents alongwith others including police personnel
  from the custody of the custodian appointed by the
  Court - Statement of the petitioner recorded uls. 164
  CrPC on the direction of Supreme Court - Held: The
F facts of the case show that police has acted in a
  partisan manner and has not investigated the case in
  a forthright manner - In view of the serious allegations
  made against the respondents as well as police
  officials, it is a fit case where investigation needs to be
G handed over to an independent agency like CBI -
  Investigation.

       Allowing the appeal, the Court

H                             448
          RASHMI BEHL v. STATE OF U.P.              449


    HELD: 1. The facts, sequence of events and A
inordinate delay in the investigation of the case
show that the investigation by the State police
authorities has not been conducted in a proper
direction. More than two years have passed but the
police failed to conclude the investigation, which B
itself goes to show that police have not acted in a
forthright manner in investigating the case. Prima
facie the police has acted in a partisan manner to
shield the real culprits and the investigation of the
case is not being conducted in a proper and C
objective manner. [Para 15] [459-A-C]

     2. Since local police is allegedly involved as per
the statement of the petitioner recorded under
Section 164 CrPC, there may not be fair D
investigation. In such a case, however faithfully the
local police may carry out the investigation, the
same may lack credibility since the allegations are
against them. In view of the entire facts of the case
and very serious allegations made against all the E
respondents including police officers, it is a fit case
where the investigation has to be handed over to
an independent agency like CBI for the purpose of
fair and unbiased investigation. [Paras 15 and 16] F
[459-C-F]

   R.S. Sodhi v. State of UP., 1994 Supp (1) SCC
143 - relied on.

                 Case Law Reference                  G

   1994 Supp (1) SCC 143     Relied on    Para 15

    CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No 218 of 2013
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450        SUPREME COURT REPORTS                  [2015] 2 S.C.R.


A         Under Article 32 Of The Constitution Of India

          Pravin H. Parekh, , Lalit Chauhan, Ekansh Mishra,
      Aditya Sharma, S. Lakshmi Iyer (for Parekh & Co.) for
      the Petitioner.
B
      Maninder Singh, ASG, Ratnakar Dash, Kumar
  Parimal, Ranjana Narayan, M. Khairati, B. V. Bairam
  Das, Abhisth Kumar, Som Raj Choudhury, Dinesh Kr.
  Tiwary, Chandan Kumar, Jaya Kumari, R. C. Aggarwal,
C Rajesh Tiwary, Praneet Ranjan for the Respondents.

          The Judgment of the Court was delivered by

       M.Y.EQBAL, J. 1. Petitioner, a young girl of 22
D years who hails from the State of Uttar Pradesh, has
  filed this writ petition under Article 32 of the Constitution
  of India for the enforcement of her fundamental rights
  guaranteed under Articles 14 and 21 of the Constitution
  of India inasmuch as even though her FIR was
E registered on 21.1.2013 neither statements of the
  petitioner or her witnesses had been recorded nor her
  medical examination under Section 164A of the
  Criminal Procedure Code had been done by the Uttar
F Pradesh Police despite repeated notices and reminders
  sent to the authorities. Petitioner has alleged to the
  extent that she was abducted, repeatedly assaulted and
  raped by her own father and his accomplices for not
  accepting their demand to enter the flesh trade in which
G her family is actively involved.

           2. The writ petition before us shows that the ordeal
      of the petitioner began in the year 2010 when the father
      and her family alleged to have started coercing her to
H
           RASHMI BEHL v. STATE OF U.P.                      451
                  [M.Y.EQBAL, J.]

join the flesh trade/prostitution. Upon realizing petitioner's   A
unwillingness, father and the family tried to sell her off to
an elderly man of about 65 to 70 years in Punjab. Upon
becoming aware of the nefarious designs of the accused
persons, petitioner somehow managed to escape from
her parental home in Meerut and escaped to Haridwar,             8
from where she was brought back by some Samaritans
to the office of DIG Meerut, where she narrated her
ordeal. Petitioner was sent to the custody of her parents
with a stern warning, which was not complied. As such,           C
she was then given into the custody of Ms. Asha Madho,
who was an ex-teacher of the petitioner. However, in the
midnight of 1/2.9.2011 in the absence of the custodian,
her parents along with their relatives with police
assistance said to have forcibly took her away. Thereafter,      D
petitioner complained to the Police that she was held in
captivity by her father and anything can happen to her in
such circumstances. Taking action on the said letter, the
SHO produced the petitioner before the City Magistrate
on 5.9.2011, where the petitioner stated that she was a          E
major and should be allowed to stay free as per her
wishes and her custody should not be given to her father
and family. Father of the petitioner also moved an
application before the City Magistrate stating that his          F
daughter was mentally unstable on which an order was
passed to refer the petitioner to a hospital for mental
medical examination, in which she was declared mentally
sound. The City Magistrate passed an order giving the
custody of the petitioner to Ms. Asha Madho. It was also         G
ordered that Ms. Asha Madho will produce the petitioner
before the Court as and when required.

    3. Aggrieved by the order, father of the petitioner
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452      SUPREME COURT REPORTS                [2015] 2 S.C.R.


A  preferred a Revision Petition before the Additional
   District Judge, Meerut seeking custody of the petitioner.
   Petitioner was produced before the court and when being
  asked about her choice, she refused to go with her father
  and told the court that her father had earlier raped her
8
  and wanted to sell her. By way of a letter Ms. Asha Madho
  showed her unwillingness to take custody of the petitioner
  on the ground of her own sickness and criminal
  background of petitioner's parents. Hence, the petitioner
c further showed her desire to go along with Ms. Aparna
  Gautam, sister-in-law of Ms. Asha Madho. On 15.10.2011,
  the Additional District Judge partly allowed the revision
  petition and set aside order dated 16.9.2011 regarding
  the custody of the petitioner being given to Ms. Asha
D Madho and held that the petitioner being an adult is free
  to reside wherever she decides to live.

       4. It is alleged by the petitioner that after the Court
  had risen, accused persons forcibly dragged her out of
E the Court and took her to various places within Meerut
  and thereafter to Ludhiyana, Punjab, and throughout this
  period the petitioner was repeatedly assaulted and raped
  by her father and his accomplices. Subsequently, in
  November 2011, Mrs. Aparna Gautam filed a writ of
F Habeas Corpus before the Allahabad High Court.
  Consequently, the petitioner was produced before the
  High Court on 16.1.2012, where she gave details of
  assault, rape and abduction. On 30.1.2012, consequent
G to petitioner's statement, learned Single Judge of the
  High Court disposed of the writ petition setting her at
  liberty to go anywhere including the opportunity to go
  along with Mrs. Aparna Gautam.

       5. On several occasions the petitioner tried to lodge
H
         RASHMI BEHL v. STATE OF U.P.                453
                [M.Y.EQBAL, J.]

a FIR with regard to abduction, repeated assault and A
rape while she was in illegal custody of the
respondents. On 16.1.2013, the petitioner wrote a
complaint to the SSP Meerut, Uttar Pradesh for
registering her FIR against the respondents. On
21.01.2013, finally FIR No.31/2013 was registered B
against the respondents under Sections 366, 323, 504
and 376 of IPC at Lisadi Gate Police Station, Meerut
instead of Civil Lines Police Station.

    6. Mr. P.H. Parekh, learned senior counsel C
appearing for the petitioner, contended that all the
relevant sections applicable to the present case have
not been applied by the police and neither statement of
the petitioner had been recorded nor medical
examination was done as per mandate of Section 164A, D
Cr.P.C. Since no action had been taken by the police
against the named accused nor any security had been
provided to the petitioner despite grave and imminent
threat to her life and liberty and she being not in a
position to approach Allahabad High Court by way of E
writ petition under Article 226, the petitioner has
approached this Court seeking indulgence under Article
32 read with 142 of the Constitution of India.

     7. We have elaborately heard learned counsel for F
the parties. Mr. P.H. Parekh, learned senior counsel
appearing for the petitioner, submitted that the
petitioner was first abducted from the house of the
custodian Ms. Asha Madho and second time from the
court premises with the active connivance of the police G
officials. The accused persons are influential people
and certain police officers (who are also named in FIR)
are also actively involved with the family. The influence
of the father and family is so much that although the H
454       SUPREME COURT REPORTS              [2015] 2 S.C.R.


 A petitioner was abducted from the Court premises
    situated under the jurisdiction of Civil Line Police
    Station, Meerut, yet the accused managed to get the
   FIR recorded not in the Civil Line Police Station but at
   the Lisadi Gate Police Station, Meerut, within
 B jurisdiction of which most of the accused reside.

        8. Mr. Parekh further contended that due to the
   influence of the accused persons, the investigation in
   the case has not even begun, which has resulted in
C disappearance of material evidence including medical
   examination report under 164A of Cr.P.C. which ought
   to have been done after being raped. Learned senior
   counsel further contended that accused persons are
   roaming free influencing and delaying investigation and
D threatening witnesses and have been on the look out
  of the petitioner since the date of lodging of the FIR
  forcing Hie petitioner to be in hiding under imminent
  threat to her life and liberty. On account of this, the
  petitioner is hiding in Delhi, but is prevented from freely
E going out in Delhi or going to place of lodging of FIR
  (Meerut) and it has forced her to knock the doors of
  the Apex Court by hiding her in Delhi.

       9. After the notice was served upon the
F respondents, learned counsel for the State of Uttar
  Pradesh and other respondents appeared and the
  matter was heard. From the side of the petitioner, it
  was submitted that no steps have been taken for
  recording the statement of the petitioner under Section
G 164, Cr.P.C.       Whereas learned senior counsel
  appearing for the State of Uttar Pradesh contended
  that despite all efforts, the petitioner is not making her
  appearance for the purpose of recording statements.
H Hearing submissions, this Court vide order dated
          RASHMI BEHL v. STATE OF U.P.                      455
                 [M.Y.EQBAL, J.]

30.1.2015 directed the petitioner/prosecutrix to appear A
before the Chief Judicial Magistrate, Saket Courts,
Saket, New Delhi along with her photograph and one
person to identify her on 31.1.2015 so that her
statement shall be recorded by the Chief Judicial
Magistrate, who shall forward the same to this Court. B

      10. In compliance of the aforesaid order, the
 petitioner appeared before the Chief Judicial Magistrate
 and her statement was recorded and the same was
forwarded to this Court. We have gone through the            C
statement made by the petitioner before the Chief
Judicial Magistrate. In her statement, she has made
serious allegations against her father allegedly
committing rape since 2007. She also stated that when
she was residing with her Asha Madam, her parents            D
along with many persons including Police personnel
(which did not have any lady police) forcibly took her
away from there to the Police Station, from where she
was handed over to her parents. She stated that her
parents used to misbehave with her. She has also             E
stated that on 15.10.2011, after the decision of the
Magistrate declaring her major and could reside at her
will, her aunt Anjana Malik and Ranjana Vasudeva
dragged her outside Court, where more than 15 persons        F
were present including her father Ravinder Behl, Safar
Borga, Ravinder Singh, Advocate, Tarun Behl, Reeta
Behl, Roma Behl, Sanjay Aggarwal, Dharamveer
Narang, lnderjeet, Harvinder Singh, Harsh Behl, Rakesh
Vasudeva and all of them including police personnel          G
took her dragging up to the main door of the Court and
put her in white colour Santro Car, which had been
driven by Pawan Malik.

    11. In her statement she has alleged that she was        H
456        SUPREME COURT REPORTS             [2015) 2 S.C.R.


A     kidnapped and taken to the house of her aunt (Bhuwa)
      and then to the house of Harsh Behl, where she was
      abused and her father forcing her for prostitution told
      that in their business goods once sold is never taken
      back and they are bound to hand it over dead or alive.
 B    Harsh Behl stated to her that they would have also
      kidnapped Aparna Gautam if gathering would not have
      saved her. Thereafter, Harsh Behl raped her. She has
      also alleged sexual assault by Dhararnveer Narang,
      Constable Dayashankar, DIG Prem Prakash, Manish
C     Mishra, Sunny Ahuja, Deshraj Ahuja, Tilak Narang and
      Toofan alias Raj Kumar. She amended her statement
      saying that name of Manish Mishra was taken by
      mistake as he was not present there and the name of
D     the man was Dr. B.P. Ashok. She has also alleged that
      on 17.10.2010 lnderjeet and Harvinder raped her in the
      presence of Preety Khurana and Urmila Kathuria, who
      did not save her despite repeated prayer. Thereafter,
      she was taken to Ludhiyana, where as alleged by her,
E     father used to rape her. Upon filing of Habeas Corpus
      petition by Aparna Gautam, she was produced by her
      parents in the High Court, where she stated that she
      did not want to go with her parents since she was
      being raped by her father and his accomplices. She
 F    has also alleged that when Aparna Gautam had gone
      to DIG with a request letter to meet petitioner, DIG
      physically assaulted her and when she was conversing
      with Media at the Commissioner Square, she was taken
      away by the police and implicated her in false case
G     and was also imprisoned. She has submitted that many
      I.Os. have changed and despite various letters written
      by her, no 1.0. turned up even on 18.3.2014, when she
      was sitting in the Chambers of her advocate in the
      Saket Courts. However, when her advocate had gone
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           RASHMI BEHL v. STATE OF U.P.                      457
                  [M.Y.EQBAL, J.]

to attend other case, her parents entered into the A
Chamber and threatened her to keep quite. She stated
that her Parvikar Aparna Gautam is being harassed
since she helped her.

     12. As noticed above, as against the order passed        B
by the City Magistrate on 5.9.2011, before whom the
petitioner has stated that she was a major and should
be allowed to stay free as per her wishes, the father of
the petitioner filed a revision petition before the
Additional District Judge,Meerut seeking custody of the       C
petitioner on the ground that she was mentally unstable.
The Additional District Judge by setting aside the order
of the City Magistrate regarding custody of the petitioner
being given to Mrs. Asha Madho held that the petitioner
being an adu.lt is free to reside where she decides to        D
live. The City Magistrate, before passing the aforesaid
order, got the petitioner medically examined in which
she was declared mentally sound. The Additional
District Judge in revisional order had observed that the
father of the petitioner made a false statement that the      E
petitioner was mentally unfit.

     13. A perusal of the counter affidavit filed on behalf
of Respondents nos.1 to 4 - State of Uttar Pradesh,
Director General of Police, Deputy General of Police F
and Senior Superintendent of Police would show that
after the case was registered being Crime Case No.31/
2013, one Rajbir Singh, SI Lisadi Gate Police Station,
Meerut, was entrusted with the case for investigation.
So far the serious allegations made by the petitioner G
against the respondents including the police officials
are concerned, it is stated in the counter affidavit that
those allegations are subject matter of investigation.
Admittedly, no action was taken against the persons H
458      SUPREME COURT REPORTS               [2015] 2 S.C.R.


A who have allegedly committed crime. On the basis of
  complaint, in March, 2013, the investigation was
  entrusted to another SI Janak Singh Pundir, SIS Cell,
  Meerut. Two months thereafter, the said 1.0. Janak
  Singh was transferred and in his place one Pramod
B Kumar Singh, S.I., Crime Branch, Meerut was entrusted
  with the case for investigation in June, 2013. Again in
  August, 2013, the investigation was entrusted to
  another SI Yogender Dikshit, Crime Branch, Meerut. It
  is stated in the counter affidavit that the Investigating
C Officer was transferred from Crime Branch to Police
  Station Durala, District Meerut. This itself shows that
  the allegations made by the petitioner in the FIR
  followed by several complaints was never taken
  seriously by the police authorities and in a routine
0
  manner the investigation was entrusted to SI police
  one after another. Moreover, the respondents in the
  counter affidavit tried to justify the reason for not taking
  steps for the purpose of recording the statement of the
E petitioner victim under Section 164, Cr. P. C. and also
  failure in medically examining the petitioner as required
  under Section 164A of the Code of Criminal Procedure.

       14. One cannot ignore the fact that still, a class of
F women is trapped as victims of circumstances-;
  unfounded social sanctions, handicaps and coercive
  forms in the flesh trade, optimised as 'prostitutes'. The
  victims of the trap are the poor, illiterate and ignorant
  sections of the society and are the target group in the
G flesh trade; rich communities exploit them and harvest
  at their misery and ignominy in an organised
  gangsterism, in particular, with police nexus. It is of
  grave social concern, increasingly realised by
  enlightened public spirited sections of the society to
 H
             RASHMI BEHL v. STATE OF U.P.                      459
                    [M.Y.EQBAL, J.]

 prevent gender exploitation of girl children.                  A

      15. Having regard to the facts, sequence of events
 and inordinate delay in the investigation of the case, it
 would show that the investigation by the State police
 authorities is not being conducted in a proper direction. B
 More than two years have passed but the police failed
 to conclude the investigation, which itself goes to show
 that police have not acted in a forthright manner in
 investigating the case. Prima facie the police has acted
 in a partisan manner to shield the real culprits and the C
 investigation of the case is not being conducted in a
 proper and objective manner. Since local police is
allegedly involved as per the statement of the petitioner
recorded under Section 164, there may not be fair
investigation. In R.S. Sodhi vs. State of U.P., 1994 D
Supp (1) SCC 143, this Court in such a case observed
that however faithfully the local police may carry out
the investigation, the same may lack credibility since
the allegations are against them.
                                                                E
    16. Taking into consideration the entire facts of the
case and very serious allegations made against all the
respondents including police officers, it is a fit case
where the investigation has to be handed over to an
independent agency like CBI for the purpose of fair F
and unbiased investigation.

    17. We, therefore, allow this petition and direct the
Central Bureau of Investigation to investigate the case
independently and in an objective manner and to G
conclude the same in accordance with law.

Kalpana K. Tripathy                   Writ Petition allowed.

                                                               H