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2014 DIGILAW 586 (GUJ)

Lok Rakshak Seva Samiti v. Union of India

2014-04-29

BHASKAR BHATTACHARYA, J.B.PARDIWALA

body2014
JUDGMENT Bhaskar Bhattacharya, C.J. 1. By filing this Public Interest Litigation, the writ petitioner has prayed for the following relief, quoted verbatim: "12. That the petitioner prays that this Hon'ble Court may be please to: (A) Your Lordship may be pleased to admit and allow this petition and issue writ of mandamus or any other writ to direct the concern authority to established separate learned Court for trial in the case of rape looking to the data published by National Crime Records Bureau (N.C.R.B.), New Delhi. (B) Your Lordship may be pleased to call for the report from the concern authority on the basis of the data published by National Crime Records Bureau (N.C.R.B.), New Delhi." The grievance of the petitioner is that to avoid unnecessary delay in disposal of the rape cases, this Court should pass direction for establishing separate Court for dealing with the rape cases like those special Courts established as C.B.I. Court, Family Court, Negotiable Instrument Court, Income Tax Tribunal, Sales Tax Tribunal, Debt Recovery Tribunal, Revenue Tribunal, Railway Tribunal etc. According to the petitioner, the offence against the women is more serious than any other offence registered under the Indian Penal Code and, therefore, separate establishment is required to protect the dignity of women in the Society. 2. When the matter was moved before us, we directed the learned Advocate for the petitioner to give an additional affidavit showing the data regarding pendency of rape cases in the various Criminal Courts of this State. The petitioner has, however, given the data relating to offences against women under Secs. 363, 369, 371, 373 and also 354 of the Indian Penal Code during the period from 2008 to 2012 throughout India. The petitioner has also given State-wise pendency of rape cases in India from 2008 to 2012 and it appears that so far as the State of Gujarat is concerned, the following is the year-wise chart: 3. This Court, however, of its own, directed the Registry to place the number of pending rape cases in the different Districts of this State both before the Sessions Courts and the Magistrate Courts. This Court, however, of its own, directed the Registry to place the number of pending rape cases in the different Districts of this State both before the Sessions Courts and the Magistrate Courts. The Registry has given such a list which is quoted below, showing pendency of the rape cases as on 1st April 2014: "Statement showing the information regarding number of rape cases pending in the Sessions Courts and number of rape cases pending in the Magisterial Courts which are yet to be committed to the Court of Sessions in the State of Gujarat As on 1-4-2014 *In Ahmedabad (Rural) District, out of 105 Cases, 8 Cases of I.P.C. Sec. 376 with P.O.S.CO. Act. ** In Porbandar District, out of 15 Cases, 6 Cases of I.P.C. Sec. 376 with P.O.S.CO. Act in Appellate Courts and 8 Cases of I.P.C. Sec. 376 with P.O.S.CO. Act in Subordinate Court." 4. State Wise Rape Cases in India (2008-2009-2010-2011-2012) disclosed by the petitioner is reproduced below: 4.1. U.T.-wise Rape Cases in India (2008-2009-2010-2011-2012) 5. The year-wise chart in relation to rape cases indicated above shows that insofar as the Sessions cases are concerned, the total number of pending rape cases is 2,404, and if we divide it by 27, i.e. the total number of judicial districts, the average pendency comes to 89 in each district. Similarly, so far as the Courts of J.M.F.C. are concerned, the total number of pending rape cases is 1,016, and dividing it by 27, the average pendency is 37. 6. According to the existing law of the land, the rape cases are required to be tried and decided in accordance with the provisions contained in the Code of Criminal Procedure which does not provide for creation of a specific Court of Judicial Magistrate or Sessions Court for dealing with the rape cases exclusively. The creation of separate Court as indicated in the application like C.B.I. Court, Family Court, Negotiable Instrument Court, Income Tax Tribunal, Sales Tax Tribunal, Debt Recovery Tribunal, Revenue Tribunal, Railway Tribunal etc. are the outcome of Special Legislation providing creation of such Court. Thus, it is the function of the Legislature to enact such law. In exercise of power conferred under Art. 226 of the Constitution of India this Court cannot pass any direction upon the Legislature to enact any law creating separate Courts for dealing with exclusively the rape cases. are the outcome of Special Legislation providing creation of such Court. Thus, it is the function of the Legislature to enact such law. In exercise of power conferred under Art. 226 of the Constitution of India this Court cannot pass any direction upon the Legislature to enact any law creating separate Courts for dealing with exclusively the rape cases. In this connection, we may profitably refer to the following observations of the Supreme Court in the case of the Supreme Court Welfare Association v. Union of India, reported in : AIR 1990 SC 334 : "There can be no doubt that no Court can direct a Legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate Legislation pursuant to the delegated authority of a Legislature, such 'executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority." 7. On consideration of the above position of law, we thus find that the prayers made in this application are not tenable in the eye of law. 8. We, of our own, however, also directed the Registry to place before us the decision taken by this Court in the past regarding special efforts for quick disposal of cases relating to offences under Secs. 363, 366 and 376 of the Indian Penal Code and also relating to offence under Secs. 302/306 of the Indian Penal Code (relating to women). We, of our own, however, also directed the Registry to place before us the decision taken by this Court in the past regarding special efforts for quick disposal of cases relating to offences under Secs. 363, 366 and 376 of the Indian Penal Code and also relating to offence under Secs. 302/306 of the Indian Penal Code (relating to women). The Registry has drawn our attention to the fact that pursuant to the decision of the Standing Committee of this Court a committee of three Hon'ble Judges has been constituted for looking into the aspect of quick disposal of cases against the women and the said committee has already given the following interim report which has been directed to be implemented subject to the final report of the committee: ".....To ensure that the cases relating to the offences against the women are Fast Tracked and taken up for hearing on priority basis, the Committee is also of the opinion that the concerned Courts may be directed to see to it that all those cases are ready for trial inclusive of committal of cases to the concerned Court if the cases are Sessions triable; to frame the charge in all those cases and with respect to the cases which are pending due to non-service of the summons and warrants either upon accused or the witnesses, the concerned Principal District and Sessions Judge and Chief Judicial Magistrate may be directed to impress upon the concerned police authority/department to see that the summons/warrants inclusive of witness summons are served at the earliest by given them top priority and they shall have periodical monthly meeting with the concerned police authorities inclusive of Dy.S.P. Commissioner ate Office and to effectively monitor the same. Considering the number of cases of offences against the women pending in the subordinate Courts and number of Courts at present available inclusive of lady Judicial Officers and to ensure that cases relating to the offences against the women are Fast Tracked and taken up for hearing on priority basis, the Committee is of the opinion that per 100 Sessions triable cases, one Court of Sessions may be earmarked as Fast Track Court to exclusively 'deal with the cases of the offences against women and per 400 Magistrate triable cases, one Court of learned Judicial Magistrate, First Class may be earmarked as Fast Track Court to exclusively deal with the cases of the offences against the women. Considering the aforesaid ratio and the pendency of the cases relating to the offences against the women and to see that cases/trials for the offences against the women are Fast Tracked, it is suggested that in all 43 Court of Session in various Districts (to deal with the Sessions triable cases) and 132 Judicial Magistrate, First Class Courts (to deal with Magistrate triable case) are required to be earmarked as Fast Track Court to exclusively deal with the cases of the offences against the women....." 9. Thus, this Court in exercise of power of superintendence has already passed direction upon the subordinate Courts to expedite the matters relating to offence against the women but the prayer of the petitioner for creation of separate Court for dealing with the rape cases can only be granted by appropriate legislation. We, thus, find that the prayer made by the petitioner is not maintainable and accordingly, we dismiss the same. Petition dismissed.