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Madhya Pradesh High Court · body

2014 DIGILAW 162 (MP)

Shiv Bhanu Rathore v. State of M. P.

2014-02-06

SUJOY PAUL

body2014
ORDER 1. By invoking jurisdiction of this Court under Article 226 of the Constitution, the petitioner has prayed for a direction for the respondents to take immediate action against the culprits and mobile holders who have given threatening to the petitioner as per Annexure P/1. It is further prayed that respondents should provide adequate police protection and security to the petitioner so that he could enjoy his life and liberty. It is further prayed that as and when petitioner prays, the police be directed to provide him police protection. 2. The case of the petitioner is that he is a social worker and has engaged in protecting women and child from any kind of exploitation. The petitioner is running an organization namely “Mahila Vikas Samiti”. He is providing protection to the exploited women/children from domestic violence. The petitioner earlier visited this Court when he allegedly received threat to his life from somebody. In WP No.4976/2008 on 23.10.2008 an interim order was passed and respondents were directed to provide adequate protection to the petitioner. The said petition was subsequently disposed of by directing the respondent No.3 / SP, Bhind to look into the matter and do the needful so that justice can be done to the petitioner. 3. It is contended that after the disposal of the said petition, the police protection was provided to the petitioner for some time, but later on said protection was withdrawn without any justiciable cause. It is contended that petitioner was appointed as service provider by the State Government on 28.05.2009 and District Program Officer, Bhind has included the petitioner as an officiating member of 'Pariwar Paramarsha Kendra’, Bhind. It is further stated that the Collector, Bhind also authorized the petitioner to appoint a woman member in the protection cell. The petitioner is also appointed as a member of the cell. It is the case of the petitioner that he is discharging his duties as a service provider and taking necessary steps to provide helping hand to the victims of domestic violence. He is further providing helping hand to minor girls who are subjected to any kind of exploitation. 4. The petitioner received some information that in village Baghedi Thapa a minor girl (aged 16 years) may be forcibly married with a man, aged about 32 years. He is further providing helping hand to minor girls who are subjected to any kind of exploitation. 4. The petitioner received some information that in village Baghedi Thapa a minor girl (aged 16 years) may be forcibly married with a man, aged about 32 years. The petitioner reported the matter to City Kotwali on 17.01.2013 and requested to take up the matter to prevent said illegal marriage. In page 3 of the writ petition he quoted two cell phone numbers from where he has allegedly received threatening that if he takes up the issue against the said marriage, he will face dire consequences. Earlier this Court on 30.04.2013 provided interim protection to the petitioner by directing respondents No. 2 and 3 to provide adequate protection to the petitioner and ensure that because of the reason that petitioner made efforts to stop child marriage, he should not be put to jeopardy. The respondents have filed their return and stated that earlier the police protection was provided to him on 12.02.2009, but that protection cannot be provided for all times to come. However, it is contended that if this Court directs, police protection will be provided to him. It is further added in para 7 of the reply that police protection will be on the own expenses of the petitioner. 5. I have heard learned counsel for the parties and perused the record. 6. The Prohibition of Child Marriage Act, 2006 (for brevity “2006 Act”) came into being on 11.01.2007. Section 13 gives power to the Court to issue injunction to prohibit child marriages. Section 13(5) reads as under :- “13. (5). The District Magistrate shall also have additional powers to stop or prevent solemnization of child marriages and for this purpose, he may take all appropriate measures and use the minimum force required.” Section 16 speaks about Child Marriage Prohibition Officer. Sub-section 3 reads as under :- “(3) The State Government may, by notification in the Official Gazette, subject to such conditions and limitations, invest the Child Marriage Prohibition Officer with such powers of a police officer as may be specified in the notification and the Child Marriage Prohibition Officer shall exercise such powers subject to such conditions and limitations, as may be specified in the notification.” 7. A bare perusal of section 13 (5) aforesaid, makes it clear that District Magistrate is equipped with additional powers to stop or prevent solemnization of child marriages and for this purpose he may take all appropriate measures including use of minimum force required. In the considered opinion of this Court, the intention behind giving this additional power is to ensure that in no circumstances child marriages take place. The Collector may take all possible measures and use minimum force to strengthen the mechanism of stopping said child marriages. State Government is equipped with the power to issue notification for the purpose of appointing Child Marriage Prohibition Officer. 8. In the considered opinion of this Court, to prevent solemnization of child marriages all effective steps must be taken. The awareness of general public is must. If any NGO or a public body or person comes forward before the authorities and informs that any such marriage is going to be solemnized, it is a legal obligation on the part of the respondents to ensure that such marriage is prevented in accordance with law and the person who is coming forward is given adequate protection. I find force in the contention of Shri H.K. Shukla that in the event offence is registered against any person for solemnization of child marriage, the petitioner or any person who gives that information may also become a witness. Thus, whether or not he becomes a witness he cannot be exposed to attacks or threatening by the persons who are involved in the illegal activity of solemnization of marriage of a child. 9. The apex Court in (2004) 4 SCC 158 (Zahira Habibulla H. Sheikh and another v. State of Gujrat and Ors.) in para 41 and 42 opined as under:- “41. "Witnesses" as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralyzed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily arties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and that the trial is not reduced to mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. 42. Legislative measures to emphasise prohibition against tampering with witness, victim or informant have become the imminent and inevitable need of the day. Conducts which illegitimately affect the presentation of evidence in proceedings before the Courts have to be seriously and sternly dealt with. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. There should not be any undue anxiety to only protect the interest of the accused. That would be unfair as noted above to the needs of the society. On the contrary, the efforts should be to ensure fair trial where the accused and the prosecution both get a fair deal. Public interest in the proper administration of justice must be given as much importance if not more, as the interests of the individual accused. In this Courts have a vital role to play.” (Emphasis supplied) 10. In (2010)3 SCC 571 (State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others) the apex Court in para 68 (ii)opined as under :- “68.(ii). Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. The said article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the State. 11. If the aforesaid finding of Supreme Court is read conjointly with 2006 Act it will be clear that respondents are bound to take necessary steps for preventing solemnization of child marriages They are further required to give adequate protection to the persons who are giving information of such marriages. They are also bound to take action against the person who are threatening the petitioner. 12. In view of aforesaid analysis, I deem it proper to allow this petition with following directions :- (a) Respondents shall take appropriate steps to ensure proper protection of the petitioner whenever he gives information about solemnization of any child marriage. (b) Respondents shall ensure that petitioner is not put to any jeopardy because of information given by him to the authorities against solemnization of child marriage. (c) Respondents shall take appropriate steps against the persons in accordance with law, who allegedly threatened the petitioner because of his attempt to prevent solemnization of child marriage. 13. With the aforesaid directions, petition is allowed. No costs.