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2019 DIGILAW 150 (ORI)

Faiz Rehman v. State of Orissa

2019-02-22

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. 1. This case depicts a grim picture where protectors have turned predators and committed child sexual abuse on the girl students in an unregistered institution in a very calculated and diabolical manner. The protest of the victims who were subjected to sexual molestation, physical and mental torture, humiliation and harassment resounded within the four corners of the walls of the institution. By the time their plight was brought to the notice of the district administration, much water had flown under the bridge. The predatory mindset of the accused had destroyed their intelligence and conscience and they acted in an undignified manner burying their morality and under the garb of giving shelter to the poverty-stricken children, they intentionally caused harm to them physically, psychologically and sexually. The victims were left with such deep emotional trauma and scars in the inner world that it would be difficult to heal during the rest of their lives. 2. The petitioner Faiz Rehman in BLAPL No. 7760 of 2018 and the petitioner Udit Kumar Lima in BLAPL No. 339 of 2019 have filed these applications under section 439 of Cr.P.C. in connection with Dhenkanal Sadar P.S. Case No. 539 of 2018 corresponding to C.T. Special (POCSO) No. 79 of 2018 pending in the Court of learned Special Judge (POCSO ), Dhenkanal in which charge sheet has been submitted under sections 354-A, 341, 323, 294 and 506 of the Indian Penal Code, section 12 of the Protection of Children from Sexual Offences Act, 2012 (hereafter ‘POCSO Act’) and section 42 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter ‘JJ Act’). Their bail applications were rejected by the learned Special Judge on 12.12.2018 and 26.12.2018 respectively. 3. One Pratap Kumar Acharya, Chairperson, Child Welfare Committee, Dhenkanal, Odisha lodged the first information report before the Inspector in charge, Sadar Police Station, Dhenkanal annexing the application given by some of the children of Good News India Dream Centre, Beltikiri (hereafter ‘Centre’) wherein it is mentioned that they have been physically tortured by the staff of the Centre and some of the girl children have been sexually abused by the petitioner Faiz Rehman who was Chairman of the Centre. There were altogether six teaching staff who were working in the centre and the children were prosecuting their studies in different schools while staying in the Centre. There were altogether six teaching staff who were working in the centre and the children were prosecuting their studies in different schools while staying in the Centre. The petitioner Udit Kumar Lima was the Asst. Project Director of the Centre and he along with one Rani Didi were using abusive language against the inmates and assaulting them and they were also threatening to assault the inmates by means of shoes. It is further stated that the petitioner Faiz Rehman was hugging and kissing the girls students and whenever they were raising any objection or protest, he was threatening them to oust from the Centre. 4. The Inspector in charge of Sadar police station, Dhenkanal registered the case under sections 354-A, 341, 323, 294, 506 read with section 34 of the Indian Penal Code and section 10 of the POCSO Act and took up investigation of the case. On 02.12.2018 Mr. Subash Chandra Sahoo, D.S.P. IUCAW, Dhenkanal took up investigation of the case as per the direction of Superintendent of Police, Dhenkanal. During course of investigation, he visited the spot and it came to light that the petitioner Faiz Rehman after his schooling in Kolkata, left for USA in 1972 for higher studies. Though he belonged to Muslim community but later on he converted to Christianity. During his stay at USA, he came in contact with some NGO and after coming back to India, he formed an organization which was working in the name of Happy and Holy Home Society in Salagadia, Nayagram in the district of West Medinapur which was registered under West Bengal Societies Registration Act, 1961. He started a hostel at Amalapada, Angul in the year 2008 which was shifted to Dhenkanal town in the year 2012. The District Child Protection Officer (DCPO) and Chairperson, CWC, Dhenkanal inspected the hostel and found some deficiencies for which closure notice was served by the District Administration. Protesting against of such closure notice, a writ application was filed on behalf of the petitioner Faiz Rehman before this Court in W.P. (C) No. 10230 of 2015 and this Court issued various directions, inter alia, for removal of the deficiencies in the hostel and to produce the children staying in the hostel before the Child Welfare Committee. The direction of this Court was not complied with and accordingly, the hostel was closed. The direction of this Court was not complied with and accordingly, the hostel was closed. Another writ petition was filed before this Court in W.P. (C) No. 7443 of 2016 challenging the action of D.C.P.O. Dhenkanal and this Court directed to the District Authority that the students who were there in the hostel be re-allowed in the school from which they had taken T.C. and accordingly, the students were brought there and readmitted in the school. A piece of land was purchased in village Beltikiri, Dhenkanal by one Simanchal Nayak who was the Project Director of the hostel since 2012. A new hostel building was constructed over the land by the organization and it started functioning in the month of October 2017 at Beltikiri. It further came to light during investigation that the Project Director Simanchal Nayak was calling the girl students to his office room during evening hours and was misbehaving with them by hugging, kissing and molesting them and compelling them to sit on his lap and threatening them not to disclose before anybody or else they would be ousted from the hostel forever. The petitioner Udit Kumar Lima was also misbehaving with the girl students by abusing them in filthy language, assaulting them by kick blows and threatening them to assault by means of shoes. Whenever the petitioner Faiz Rehman was coming to the Centre, he used to hug and kiss the girl students, touching the sensitive parts of their body on the plea of love and affection. It further came to light that the petitioner Faiz Rehman had not observed any rules and regulations and illegally running the Centre since 2012 and he was receiving donation from USA under Foreign Contribution (Regulation) Act, 1976 and he was running twenty five institutes inside Odisha including the one at Beltikiri in Dhenkanal. The statements of the victim girls and some of their parents and independent witnesses were recorded and it was found that the institution was running illegally without any authority or permission from the Collector, Dhenkanal. Finding prima-facie case against the petitioners, charge sheet was submitted on 28.01.2019. 5. Mr. Soura Chandra Mohapatra, learned counsel appearing for the petitioners submitted that the petitioners are in judicial custody since 02.12.2018 and the offences under which charge sheet has been submitted carries no severe punishment and there is no chance of absconding or tampering with the evidence. Finding prima-facie case against the petitioners, charge sheet was submitted on 28.01.2019. 5. Mr. Soura Chandra Mohapatra, learned counsel appearing for the petitioners submitted that the petitioners are in judicial custody since 02.12.2018 and the offences under which charge sheet has been submitted carries no severe punishment and there is no chance of absconding or tampering with the evidence. He placed the statement of the one of the inmates of the Centre to indicate that the petitioner Faiz Rehman has been falsely implicated at the instance of Project Director Simanchal Nayak. It is the contention of the learned counsel that since some of the inmates have stated only against Project Director Simanchal Nayak and they have further stated that they were instigated to tell falsehood against the petitioner Faiz Rehman who is an aged person and suffering from different ailments including heart problem, the bail application should be favourably considered. According to him, in view of the notification of the Govt. of India, Women and Child Development Department dated 22.06.2015, registration of the Centre is not necessary. He argued that the allegation against the petitioner Udit Kumar Lima is that he only abused and assaulted some of the girl students and there is no allegation of sexual harassment against him and therefore, the ingredients of the offence under section 354-A of the Indian Penal Case which is a bailable one and section 12 of the POCSO Act are not attracted and therefore, the petitioners should be released on bail. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel for the State on the other hand vehemently opposed the prayer for bail and placed the statements of number of girl students who were staying in the Centre. He also placed the statements of the parents before whom the girl students complained regarding the conduct of the petitioners. He further placed the 164 of Cr.P.C. statement of a minor girl who was staying in the Centre and she has alleged against the petitioner Faiz Rehman for committing sexual abuse of the girl students. He further placed a letter of the Collector, Dhenkanal dated 11.01.2019 which indicates that that no permission was granted to run the Centre at Beltikiri and the Centre was also not registered under the JJ Act. 6. He further placed a letter of the Collector, Dhenkanal dated 11.01.2019 which indicates that that no permission was granted to run the Centre at Beltikiri and the Centre was also not registered under the JJ Act. 6. Adverting to the contentions raised by the respective parties and on perusal of the case records, it appears that the petitioner Faiz Rehman was the Chairman and the petitioner Udit Kumar Lima was the Asst. Project Director of the Centre and the Collector & District Magistrate, Dhenkanal has not given any permission for running of the Centre at Beltikiri and the Centre has also not been registered under the JJ Act. Section 41 of the JJ Act mandates, notwithstanding anything contained in any other law for the time being in force, that all institutions, whether run by a State Government or by the voluntary or nongovernmental organizations, which are meant, either wholly or partially, for housing children in need of care and protection, shall be registered under the JJ Act in such manner as may be prescribed, within a period of six months of the commencement of the said Act. The JJ Act came into force on 15th January 2016. Whether in view of the notification of the Govt. of India, Women and Child Development Department dated 22.06.2015, registration of the Centre was necessary is now the subject matter of a writ petition which is subjudiced before this Court and therefore, it would not be proper to give any finding in that respect. However, it is apparent that in spite of the direction of this Court in a writ petition, no action was taken by the petitioner Faiz Rehman to remove the deficiencies in the Centre for which closure notice was earlier served by the district administration and for non-compliance of the direction of this Court, the Centre was subsequently closed and thereafter the petitioners started running the Centre illegally in a new building at Beltikiri. The statements of most of the girl students staying in the Centre indicate as to how the petitioner Faiz Rehman was sexually abusing them. They were given threat not to disclose the incident before anybody otherwise they would be ousted from the Centre. The petitioner Udit Kumar Lima was abusing the girl students, assaulting them and torturing them physically and mentally. The poor helpless inmates were tortured in such manner for years together. They were given threat not to disclose the incident before anybody otherwise they would be ousted from the Centre. The petitioner Udit Kumar Lima was abusing the girl students, assaulting them and torturing them physically and mentally. The poor helpless inmates were tortured in such manner for years together. The submission of the learned counsel for the petitioners that a false case has been foisted against the petitioner Faiz Rehman at the instance of Project Director Simanchal Nayak cannot be adjudicated in these bail applications. Any observation made in that respect may affect either of the parties during the trial. The trial Court can consider such a plea at the appropriate stage. Therefore, I am not expressing any opinion on such contention. It appears that the petitioner Faiz Rehman is a moneyed man and an influential person. Once he is released on bail, there is every possibility of tampering with the evidence particularly when the victims are from poor families. The age factor of the petitioner Faiz Rehman cannot be a ground to grant him bail in a case of this nature particularly when it is alleged that at such age, he is not even hesitating in indulging himself in such type of offences. Though during hearing of the bail applications, the learned counsel for the petitioners produced the xerox copies of some medical documents of the petitioner Faiz Rehman without any supporting affidavit but such documents do not bear the seal of the hospital or signature of the doctor who treated him. Therefore, the authenticity of such documents is doubtful. 7. The crime committed in the case against the victims is not acceptable in a civilized society. It has its far-reaching effect and affects the peaceful life of the society. The manner in which a number of poor girl students taking shelter in the Centre were sexually abused, physically and mentally tortured, harassed and humiliated for years together in the hands of licentious persons and threatened to be ousted from the Centre in case of their protest or disclosure before anybody, the nature and gravity of the accusation and prima-facie material on record showing the involvement of the petitioners in the commission of offences, I am not inclined to release the petitioners on bail. 8. Accordingly, both the bail applications sans merit and hence stand rejected.