Delhi Commission for Women v. State of NCT Delhi

8. On 27.05.2016, the statement of the prosecutrix was recorded under Section 164 CrPC wherein she did not allege any wrong doing. She in her dying declaration given to the Coordinators of the DCW stated that she was pressurized by the police and that she had changed her statement in front of DCW and the Magistrate, out of fear. After recording her statement, the child once again was sent to the Children‟s Home by Child Welfare Committee III (for short „CWC‟). This was in spite of the fact that the identity and the whereabouts of the victim‟s parents were clearly known to the SHO. The custody of the child was finally returned to the custody of her parents by CWC on 31.05.2016 allegedly citing her deteriorating health. She was taken to Lok Nayak Jai Prakash Narayan Hospital, Delhi (for short „LNJP Hospital‟) by her father but the Investigating Officer, Police Station Burari, refused to get her MLC conducted despite the request of the father. On 30.06.2016, LNJP Hospital intimated the Investigating Officer that the victim was a history of sexual assault had been admitted. On the same day. LNJP, Delhi, conducted a radio diagnosis, which revealed corrosive poisoning. At this stage, the investigation for the first time was handed over to a female Investigation Officer, Inspector, Ms. Mukesh Devi, who recorded the statement of the girl, in which she alleged kidnapping and rape. Accordingly, Section 376 and 4 and 6 of POCSO Act, were added. However, no steps were taken for a fresh recording of statement of the victim under Section 164 CrPC. Further, no steps were taken in regard to the poisoning/attempt to murder.

9. Further the Counsellor of the Rape Crises Cell Program of the Commission, was neither informed nor called for counselling of the victim of sexual abuse, which is mandatory, as per the directions given by this Court in W.P.(C) 696/2008. Further, a repeat MLC was not conducted either by the doctors or by the hospital nor it was requested by the Investigating Officer.

10. The Petitioner, who is the Chairperson of the CWC, in compliance with her statutory obligations, took cognizance of the news report citing condition of the girl and sent her Counsellors of Mobile Helpline Program to LNJP Hospital, in keeping with its statutory obligations under the Delhi Commission for Women Act. On 15.07.2016. the Counsellor assisted the father of the girl in getting his complaint regarding the poisoning by the main accused and his relatives, registered in Police Station vide DD No. 67B dated 15.07.2016 wherein names of the three relatives of the main accused as accomplices, was mentioned.

11. On 16.07.2016, Two Coordinators of the DCW, on instructions from the Petitioner, met the girl and recorded her, as well as, her father’s statement. The Prosecutrix reiterated her allegations of kidnapping, confinement, multiple rape and administration of acid by the accused and his relatives. She further stated that she had been severely pressurized and threatened by the police officers before recording of a Statement under Section 164 CrPC, on 27.05.2016. Therefore, she was unable to give her true statement. She further stated that she was kidnapped and raped by the accused persons and that she did not depose properly in front of the learned Magistrate, out of fear of the Police. The parents of the Complainant also registered her Complaint to the Petitioner stating that they were not allowed to meet their daughter, who was taken away to the Children’s Home by the Burari Police. On 17.07.2016 on being requested by the father of the Prosecutrix, the Petitioner got her transferred to Max Hospital, Shalimar Bagh for better treatment under the Economically Weaker Section Scheme (EWS Scheme). On 19.07.2016, the father gave a written consent to the Petitioner, to reveal the identity of the prosecutrix if needed to secure her best interest. On 22.07.2016, the Petitioner visited the minor in Max Hospital and was informed about the critical condition of the Prosecutrix by the doctors. She was also informed by the advocates of DCW Rape Crises Cell and by the Counsellors that despite repeated requests, no action was being taken by the Police, to get her statement under Section 164 of Cr.P.C. recorded afresh.

12. The Respondent No. 2/SHO moved an Application for recording of the statement under Section 164 Cr.P.C. of the Prosecutrix only on 22.07.2016 and on the same day, the learned Magistrate visited Max Hospital but her Statement could not be recorded as she was on the ventilator. The SHO/Respondent No. 2, in an attempt to screen the offenders, delayed the recording of the Statement under Section 164 Cr.P.C. of the Prosecutrix by 22 days, which fatally compromised the prosecution case. A Notice was issued by the Petitioner to the Police Station Burari asking for the Status Report and reasons for not arresting the accused persons amongst other relevant issues. The original copy of the dying declaration of the Prosecutrix given to the Coordinators of the Commission on 16.07.2016 was also forwarded to the Police. The Notice was issued in compliance of statutory functions of the DCW. The accused was finally arrested on 23.07.2016. On 24.07.2016, the Prosecutrix succumbed to her injuries. Despite her dying declaration being made available to the SHO, he failed to take any steps to record the statements of the Co-ordinators.

13. The post mortem of the prosecutrix was conducted on 25.07.2016 in LNJP, Hospital, New Delhi, which concluding ingestion of corrosive substance by the deceased as the cause of death.

14. The Respondent No. 2/SHO, responded to DCW’s Notice vide Reply dated 25.07.2016 wherein he stated the facts of the case and asserted that the CIC Counsellor of the DWC, was not informed as the family did not allege sexual assault. The victim refused a gynecological examination and the mother of the Prosecutrix refused to come for recording of her Statement under Section 164 Cr.P.C. However, such assertions of the SHO are claimed to be baseless as the allegations of rape were recorded on 30.06.2016 and the RCC Counsellor was not informed.

15. On 26.07.2016, a flagrant abuse of Police power and with the intention to overawe and intimidate the Petitioner, who is the Chairperson of a statutory body, DCW an FIR has been registered under Section 228 A of the I.P.C. on 27.06.2016, against the Petitioner, Chairperson of the DCW on the allegations that the information was published by media apparently on the calculated exposure by the Respondent No. 2. Despite repeated requests including a Letter to the Commissioner of Police dated 26.07.2016; the Petitioner was not given a copy of the aforesaid FIR. A representation was made by her on 29.07.2016 to Member Secretary, Delhi State Legal Services Authority (for short ‘DSLSA’) requesting for grant of protection and adequate compensation to the parents of the girl. Despite repeated requests, the copy of the FIR No. 0356/2016 was not made available to her, which was eventually provided vide Order dated 01.08.2016 of the learned Metropolitan Magistrate, Tis Hazari Courts, Delhi.

16. The Petitioner gave detailed representation dated 03.08.2016 underlining the aforesaid facts to the Commissioner of Police, New Delhi, asking for a comprehensive, complete and independent investigations into the incident of rape and murder, by a Special Investigation Team comprising of Senior Officers of proven confidentiality, probity and for prompt security to the parents of the Prosecutrix. Another similar representation dated 03.08.2016 was made to Minister of SC/ST/OBC/Minority Welfare, requesting for adequate compensation to the parents of the Prosecutrix. On 11.08.2016, the present Writ Petition was consequently filed seeking free, fair and impartial investigation and also for quashing of FIR against the Petitioner.

17. During the pendency of the Petition, the Charge Sheet in FIR NO. 356/2016 has been filed against the Petitioner as accused No. 1. Perusal of the Charge-Sheet would show the vindictive approach of the Respondents, to array the Petitioner as an Accused and filed Charge- Sheet for the alleged offence. The ingredients of Section 74 of J.J. Act are not made out. A prayer is, therefore, made for re-investigations in FIR No. 1553/2015 by a SIT for quashing of FIR No. 0356/2016 and also the Charge-Sheet and other proceedings emanating therefrom and also to direct the Respondent Nos. 2, 3 and 4, to pay compensation to the Respondent No. 5 and her family.

18. Status Report dated 28.03.2017 was filed on behalf of the State wherein it was submitted that the FIR No. 1553/2015 dated 24.12.2015 under Section 363/376/506/34 of the I.P.C. and Section 4/6 of POCSO Act, was registered at Police Station Burari. The investigations were marked to Inspector, Mukesh Devi. During the investigations, DCW was duly notified regarding the Complaint and the Counsellor also met the Prosecutrix for counselling. The Prosecutrix was accompanied by her mother for medical examination at Aruna Asif Ali Government Hospital, Delhi, on 24.12.2015. The accused, Shiv Shankar was arrested by the Investigating Officer on 27.12.2015. The exhibits were sent to the Forensic Laboratory for DNA profiling. The statement of the Prosecutrix under Section 164 CrPC was recorded and thereafter, the accused was granted bail. The Charge-Sheet dated 04.02.2016 has been filed before the Special Court for the offences under Sections 363/376 of the I.P.C. and Section 4/6 of POCSO Act, on which the cognizance has been taken and the trial is in progress.

19. In respect of FIR No. 254/2016 wherein a Complaint was made on 16.05.2016 that the three accused persons had again kidnapped her daughter on 15.05.2016, FIR No. 254/2016 under Section 363/506 read with Section 34 of the I.P.C was registered at Police Station Burari. Notice under Section 160 of CrPC was served upon the accused persons. Shiv Shankar and his father interrogated at Police station Burari. On 26.05.2016, the victim was found in the area of Polic Station Swarup Nagar, North-West, Delhi vide DD No. 15B. The mother of the victim was called on her mobile and asked to join the investigations, which she failed to do. Her medical examination was done at Aruna Asif Ali Hospital but she refused her gynecological examination. The victim was produced before the CWC at Sewa Kutir and the parents were informed but because they did not appear, she was sent back to Kilkari Rainbow Home, Kashmere Gate by CWC.

20. As per the report of the Manager of Kilkari Rainbow Home, the parents met the Prosecutrix twice between 25.05.2016 to 31.05.2016 at Kilkari Rainbow Home. On 31.05.2016, her custody was handed over to her mother by the Orders of CWC. On 27.05.2016, the statement under Section 164 CrPC was recorded wherein she stated that because of the family problems, she had left the home on 15.05.2016 and denied any allegations of rape, molestation and kidnapping. Her counselling was done by the officials of Delhi Legal Services Authority (DLSA) on 27.05.2016 wherein also she did not disclose any allegations of kidnapping, threat and sexual assault. The parents of the victim finally took the custody on 31.05.2016 and thereafter, on 30.06.2016. Thereafter, on 30.06.2016, information vide DD No. 32A was received that the Prosecutrix was admitted in the Lok Nayank Hospital by her father with the history in the MLC as “sexual assault one month back by the neighbour.” The investigations were handed over to woman Inspector Mukesh Devi.

21. The statement of the Prosecutrix was recorded by the Investigating Officer on 08.07.2016 in which she disclosed that she had been taken to some unknown place and raped by the Accused, Shiv Shankar. Section 376 of I.P.C. and Section 4/6 of POCSO Act, were also added in the FIR No. 254/2016. Thereafter, she was shifted to Max Hospital, Shalimar Bagh, Delhi for her treatment. Another request for recording the Statement of the victim under Section 164 CrPC, was made by the Investigating Officer on 22.07.2016 but she was declared “Not fit for statement”. Accused, Shiv Shankar was produced before the learned Court on 23.07.2016 and remanded to judicial custody.

22. The victim expired on 24.07.2016. On the same day, statement of the victim recorded on 16.07.2016 was submitted by Ms. Kiran Negi, official of the DCW in the Police Station but it was noted that this statement was neither recorded in the presence of any doctor, nurses nor any medical staff of LNJP Hospital. Thereafter, the investigations were transferred and the statements of the witnesses were recorded. The FSL Report was obtained. In order to deny the benefit of Section 167 CrPC to the accused, the Charge-Sheed in Case FIR No. 254/2016 was filed in the Court of Special POCSO Court, Tis Hazari, Delhi wherein it is pending investigation.

23. In regard to FIR No. 356/2016, registered against the Petitioner/Chairperson DCW, it is stated that the Chairperson had issued a Notice to SHO, Burari, mentioning the name of the victim on 22.07.2016 seeking further details of the investigation. The image of this Notice along with the text containing the name of the victim was forwarded on a Whatsapp Group „DCW Media‟ by Sh. Bhupender Singh, PRO of DCW on 23.07.2016, for publishing it in the newspapers etc. On 25.07.2016, news Anchor Sh. Arnab Goswami in a programme namely „The News Hour‟ on Time Now Channel displayed the same Notice. FIR No. 356/2016 under Section 228A of the I.P.C. registered at Police Station Burari. However, the consent of the parents, to disclose the name of the Prosecutrix, was produced and consequently Section 228A of the I.P.C. was dropped but Section 74 of the Juvenile Justice act was added. On the completion of investigations, the Charge-Sheet has accordingly been filed under Section 74/86 of J.J. Act, 2015, which is pending consideration.

24. In the additional Status Report in regard to FIR No. 356/2016, it is further clarified that aside from the Petitioner, Sh. Bhupender Singh, PRO, Media Advocacy, DCW has been met the co-accused.

25. Learned counsel for the Petitioner, has argued that instead of focusing on the special features of the two earlier FIRs in regard to the Prosecutrix having been sexually assaulted and kidnapped repeatedly, the focus has been changed by the registration of the FIR No. 356/2016 against the Chairperson, DCW. In an effort to overawe and intimidate the statutory body so as to keep the flawed investigation under the wraps and to shield their own misconducts in mishandling the situation. An illegal FIR No. 0356/2016 under Section 228A has been registered against the Petitioner, at Police Station Burari, North Delhi. It is argued that the name and address of the victim, has not been published to any media outlet or any forum including the show on times Now and all statutory obligations have been duly met by the Petitioner while handling this case. Despite the FIR being against the Petitioner, as well as, the leading journalist of a prominent news channel, it is only her name, which has been leaked, which has resulted in the National News and has caused damage to the goodwill of the Petitioner. After registration of FIR, the Police has not approached the Petitioner, for recording of her comments or Statement but instead, several journalists covering the work of DCW, have been called by the Police for questioning. This further reveals the nefarious designs of the Police in registration of FIR.

26. It is further argued that the FIR does not disclose any nocognizable offence. Section 228A of the I.P.C., has been dropped as not maintainable and the Charge-Sheet is only under Section 74 J.J. Act, which is a non-cognizable offence. The Petitioner being a Chairperson, was acting under the mandate of Section 10 of DCW Act, 1994 in good faith and was merely doing her duty conscientiously, diligently and the registration of a false FIR is malicious and a coloured exercise of power. There is no material to show that she has committed any offence under Section 74 of the J.J. Act. Furthermore, Section 74 of the J.J. Act does not completely prohibit disclosure of the identity of the victim but it is permitted in the best interest of the child, which can be clearly gathered from the contents of the Notice. The Notice had been issued by her to the Respondent No. 2/SHO only in discharge of a statutory responsibility and the identity of the Prosecutrix has not been revealed to any of the medium as mentioned in Section 74 of the J.J. Act. Moreover, Section 74 of the J.J. Act, is intended to protect the identity of a victim but since the Prosecutrix has died, the object of Section 74 of the J.J. Act, does not survive. Therefore, it is argued that FIR No. 356/2016 under Section 228A of I.P.C. is liable to be quashed.

27. Learned counsel on behalf of the State has argued that there was blatant violation of Section 74 of J.J. Act and the FIR has been rightly registered. There is no ground for quashing of the aforesaid FIR. Moreover, the compensation in the sum of Rs.25,000/- has been granted by Delhi Legal Services Authority (DLSA) to the parents of the Prosecutrix. It is, therefore, submitted that there is no merit in the Petition, which is liable to be dismissed.

28. Submissions heard and record perused.

29. The Petitioner, who is the Chairperson of the Delhi Commission for Women has mentioned in detail about the registration of FIR NO. 1553/2015 under Sections 363/376 of IPC, 1860 and Sections 4/6 of POCSO Act registered at Police Station Burari, Delhi in regard to a minor girl aged 14 years. The Petitioner has asserted that the investigations were not being carried out properly and the girl was being manipulated on account of the threats extended by the accused. Consequently, the Petitioner had been pursuing the matter as Chairperson to ensure that the fair investigations were done.

30. While the FIR No. 1553/2015 was pending, the girl again went missing and the second FIR No. 254/2016 was registered on 19.05.2016. According to the Petitioner, the matter was not being pursued in the right earnestness. The Statement of the prosecutrix, recorded under Section 164 of Cr.P.C., 1973 and by the Police, was being manipulated. The Petitioner, therefore, was constantly not only providing support to the prosecutrix through Counselor, but had also deputed the two Coordinators to meet the girl and to give her the support. However, the investigations in the said two FIRs have not been done by the Police fairly and were being manipulated at the instance of the accused persons. Therefore, the Petitioner has made a prayer that a SIT be constituted for conducting the fair and complete investigations in the two FIRs.

31. Though the Petitioner has sought the investigations by SIT. Pertinently, the Chargesheets have been filed in the two cases in 2016 and since then, both the cases are pending trial.

32. It is now for the learned Trial Court to consider the same and no fruitful purpose would be served by referring further investigations to SIT and, therefore, the relief of constitution of an SIT has become infructuous.

33. The second part of the Petition is that while the Petitioner was pursuing the case in these FIRs, she had issued a Notice dated 22.07.2016 to the Station House Officer (SHO), Burari, Delhi to know the status of the case, wherein the name of the prosecutrix was mentioned. The said Notice was circulated on the WhatsApp Group of DCW by Shri Bhupender Singh, Public Relations Officer. The Notice thus got circulated on the WhatsApp and even became available to the New Channels which is evident that on 25.07.2016, the Times Now News Channel during its Programme i.e., News Hour conducted by Mr. Arnab Goswami who was showing the said Notice. The name of the prosecutrix was thus put in the public domain. The FIR No. 0356/2016 was registered under Section 228A of IPC, 1860. However, during the investigations, a Consent Letter of the parents of the prosecutrix was produced and consequently, Section 228A of IPC, 1860 was dropped, instead Section 74 along with Section 86 of the Juvenile Justice (Care and Protection of Children) Act, 2015 was added and the Chargesheet was accordingly filed.

34. The first challenge taken on behalf of the Petitioner is that the offence under Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is non-cognizable, in which the investigations could not have been carried out without the permission of the Court as mandated under Section 155 of Cr.P.C., 1973. Therefore, the Chargesheet and the consequent cognizance taken by the learned Metropolitan Magistrate are bad in law and are liable to be dropped/quashed.

35. The FIR No. 0356/2016 was registered under Section 228A of IPC, 1860 which is a cognizable offence. It is only during the investigations that the Consent Letter of the Parents of the prosecutrix was produced. An Application was filed on behalf of the IO before the learned Metropolitan Magistrate to seek permission to investigate the offence under Sections 74/86 of the Juvenile Justice (Care and Protection of Children) Act, 2015, but the same was disposed of by the learned Metropolitan Magistrate by observing that since the FIR was registered under the cognizable offence, which was not be subsequently made out, no further permission was required if the offence is subsequently disclosed was non-cognizable.

36. In these facts, it cannot be said that due procedure for conducting investigation has not been followed.

37. Similar issue has been considered in the case of State of Haryana & Ors. Vs Ch. Bhajan Lal and Ors., AIR 1992 SC 604 wherein it has been held that when the FIR is registered under a cognizable offence, subsequent filing of the Chargesheet under non-cognizable offence is not bad in law and no permission under Section 155 of Cr.P.C., 1973 is required at a subsequent stage, once the investigations had already commenced.

38. Therefore, this objection on behalf of the Petitioner that the cognizance on the Chargesheet itself is bad in law is not tenable.

39. The second contention raised on behalf of the Petitioner is that she as the Chairperson of DCW had been discharging her duties with full earnestness, according to the mandate of Section 100 of the Delhi Commission for Women Act, 1994. There was no mens rea on her part to expose the name of the prosecutrix; rather she had been espousing her cause and pursuing with various Agencies to ensure that not only fair investigations are conducted in the FIRs, but also to get the justice and compensation for the victim and her parents.

40. To appreciate her contention, Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 be considered which reads as under: - “Section 74:- Prohibition on disclosure of identity of children – (1) No report in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication regarding any inquiry or investigation or judicial procedure, shall disclose the name, address or school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime, involved in such matter, under any other law for the time being in force, nor shall the picture of any such child be published: Provided that for reasons to be recorded in writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child. (2) The Police shall not disclose any record of the child for the purpose of character certificate or otherwise [in the pending case or in the case which] has been closed or disposed of. (3) Any person contravening the provisions of sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or fine which may extend to two lakh rupees or both.”

41. From the bare perusal of this Section, it is evident that if any Newspaper, Magazine, News-Sheet or Audio-Visual Media or other forms of communication disclose the name, address or school or any particulars which may lead to the identification of the child in conflict with law or child in need of care and protection, would be an offence punishable with the term that may extend to six months or fine which may extend to two lakhs in the present case.

42. It is not under challenge that a Notice was issued to the SHO which got published on the WhatsApp Group of DCW by Sh. Bhupender Singh, Public Relations Officer, which later got it circulated to the News Channels wherein the name of the prosecutrix was disclosed. Prima facie, offence under Section 74 read with Section 86 of the Juvenile Justice (Care and Protection of Children) Act, 2015 is clearly disclosed.

43. Insofar as the Petitioner‟s claim that she has protection under Section 100 of the Juvenile Justice (Care and Protection of Children) Act, 2015 for her actions done in good faith is concerned, it is her defence which is required to be proved in accordance with law at the appropriate stage.

44. Therefore, there is no ground for quashing of FIR No. 356/2016 and the proceedings consequent thereto.

45. Insofar as the compensation is concerned, Rs. 50,000/- to the parents of the prosecutrix has already been disbursed by the Delhi Legal Service Authority.

46. The parents may also claim compensation under the Delhi Victims Compensation Scheme, 2018, by moving an appropriate Application before the Trial Court.

47. Therefore, no directions are warranted in the present Petition which is accordingly disposed of.

JUDGE FEBRUARY 13, 2025 RS/S.Sharma