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Gujarat High Court · body

2019 DIGILAW 323 (GUJ)

Hina D/o Arjunsinh Chauhan W/o Modh Ajaykumar Jivanbhai v. State of Gujarat

2019-04-08

SONIA GOKANI

body2019
ORDER : 1. Petitioners are before this Court seeking following reliefs: “(A). That the Hon'ble Court may be pleased to admit this special Criminal Application. (B). That this Hon'ble Court may be pleased to allow this present Special Criminal Application by issuing appropriate writ, order or direction directing respondent nos. 2 and 3 to consider the representation of the petitioner dated 03.04.2019 in accordance with law and be further pleased to direct respondent nos. 2 and 3 to provide police protection to the petitioner and their family members immediately in the interest of justice. (C). Pending admission hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct the respondent nos. 2 and 3 to consider the representation of the petitioner dated 03.04.2019 in accordance with law in the interest of justice. (D). This Hon'ble Court may please to direct the respondent authority to register the complaint of the petitioners for the incident of 02.04.2019 in accordance with law in the interest of justice.” 2. It is a case of inter-caste marriage of the petitioner nos. 1 and 2. The certificate of registration of marriage dated 01.04.2019 is already produced on record. The marriage is solemnized on 22.03.2019 at Torda. 3. Both the petitioners are present before this Court. 4. Learned Additional Public Prosecutor also has inquired from the girl who has shown apprehension. It is urged by the learned advocate Mr. Kishan Prajapati that though representation made to the police authority, no protection has been received by the petitioners. He further urged that parties are finding extremely difficult to coup-up this situation. 5. Considering the decision of the Apex Court rendered in the Case of Shakti Vahini vs. Union of India, reported in 2018(7) SCC 192 decided on 27.03.2018, wherein-55 to 55.3.5., the Apex Court observed as under; “55. Mr. Raju Ramachandran, learned senior counsel being assisted by Mr. Gaurav Agarwal, has filed certain suggestions for issuing guidelines. The Union of India has also given certain suggestions to be taken into account till the legislation is made. Mr. Raju Ramachandran, learned senior counsel being assisted by Mr. Gaurav Agarwal, has filed certain suggestions for issuing guidelines. The Union of India has also given certain suggestions to be taken into account till the legislation is made. To meet the challenges of the agonising effect of honour crime, we think that there has to be preventive, remedial and punitive measures and, accordingly, we state the broad contours and the modalities with liberty to the executive and the police administration of 18 (2013) 14 SCC 672 47 the concerned States to add further measures to evolve a robust mechanism for the stated purposes : 55.1 Preventive Steps 55.1.1. The State Governments should forthwith identify Districts, Sub-Divisions and/or Villages where instances of honour killing or assembly of Khap Panchayats have been reported in the recent past, e.g., in the last five years. 55.1.2. The Secretary, Home Department of the concerned States shall issue directives/advisories to the Superintendent of Police of the concerned Districts for ensuring that the Officer Incharge of the Police Stations of the identified areas are extra cautious if any instance of inter-caste or inter-religious marriage within their jurisdiction comes to their notice. 55.1.3. If information about any proposed gathering of a Khap Panchayat comes to the knowledge of any police officer or any officer of the District Administration, he shall forthwith inform his immediate superior officer and also simultaneously intimate the jurisdictional Deputy Superintendent of Police and Superintendent of Police. 55.1.4. On receiving such information, the Deputy Superintendent of Police (or such senior police officer as identified by the State Governments with respect to the area/district) shall immediately interact with the members of the Khap Panchayat and impress upon them that convening of such meeting/gathering is not permissible in law and to eschew from going ahead with such a meeting. Additionally, he should issue appropriate directions to the Officer Incharge of the jurisdictional Police Station to be vigilant and, if necessary, to deploy adequate police force for prevention of assembly of the proposed gathering. 55.1.5. Additionally, he should issue appropriate directions to the Officer Incharge of the jurisdictional Police Station to be vigilant and, if necessary, to deploy adequate police force for prevention of assembly of the proposed gathering. 55.1.5. Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organizers would be personally liable for criminal prosecution. He shall also ensure that video recording of the discussion and participation of the members of the assembly is done on the basis of which the law enforcing machinery can resort to suitable action. 55.1.6. If the Deputy Superintendent of Police, after interaction with the members of the Khap Panchayat, has reason to believe that the gathering cannot be prevented and/or is likely to cause harm to the couple or members of their family, he shall forthwith submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of the concerned area for issuing orders to take preventive steps under the Cr.P.C., including by invoking prohibitory orders under Section 144 Cr.P.C. and also by causing arrest of the participants in the assembly under Section 151 Cr.P.C. 55.1.7. The Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of such violence and to implement the constitutional goal of social justice and the rule of law. 55.1.8. There should be an institutional machinery with the necessary coordination of all the stakeholders. The different State Governments and the Centre ought to work on sensitization of the law enforcement agencies to mandate social initiatives and awareness to curb such violence. 55.2. Remedial Measures 55.2.1. 55.1.8. There should be an institutional machinery with the necessary coordination of all the stakeholders. The different State Governments and the Centre ought to work on sensitization of the law enforcement agencies to mandate social initiatives and awareness to curb such violence. 55.2. Remedial Measures 55.2.1. Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or interreligious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code including Sections 141, 143, 503 read with 506 of IPC. 55.2.2. Upon registration of F.I.R., intimation shall be simultaneously given to the Superintendent of Police/Deputy Superintendent of Police who, in turn, shall ensure that effective investigation of the crime is done and taken to its logical end with promptitude. 55.2.3. Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may consider of establishing a safe house at each District Headquarter for that purpose. Such safe houses can cater to accommodate (i) young bachelor-bachelorette couples whose relationship is being opposed by their families /local community/Khaps and (ii) young married couples (of an inter-caste or interreligious or any other marriage being opposed by their families/local community/Khaps). Such safe houses may be placed under the supervision of the jurisdictional District Magistrate and Superintendent of Police. 55.2.4. The District Magistrate/Superintendent of Police must deal with the complaint regarding threat administered to such couple/family with utmost sensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they may be provided logistical support for solemnising their marriage and/or for being duly registered under police protection, if they so desire. After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis. 55.2.5. After the marriage, if the couple so desire, they can be provided accommodation on payment of nominal charges in the safe house initially for a period of one month to be extended on monthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis. 55.2.5. The initial inquiry regarding the complaint received from the couple (bachelor-bachelorette or a young married couple) or upon receiving information from an independent source that the relationship/marriage of such couple is opposed by their family members/local community/Khaps shall be entrusted by the District Magistrate/ Superintendent of Police to an officer of the rank of Additional Superintendent of Police. He shall conduct a preliminary inquiry and ascertain the authenticity, nature and gravity of threat perception. On being satisfied as to the authenticity of such threats, he shall immediately submit a report to the Superintendent of Police in not later than one week. 55.2.6. The District Superintendent of Police, upon receipt of such report, shall direct the Deputy Superintendent of Police in-charge of the concerned subdivision to cause to register an F.I.R. against the persons threatening the couples and, if necessary, invoke Section 151 of Cr.P.C. Additionally, the Deputy Superintendent of Police shall personally supervise the progress of investigation and ensure that the same is completed and taken to its logical end with promptitude. In the course of investigation, the concerned persons shall be booked without any exception including the members who have participated in the assembly. If the involvement of the members of Khap Panchayat comes to the fore, they shall also be charged for the offence of conspiracy or abetment, as the case may be. 55.3. Punitive Measures:- 55.3.1. Any failure by either the police or district officer/officials to comply with the aforesaid directions shall be considered as an act of deliberate negligence and/or misconduct for which departmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance. 55.3.2. The departmental action shall be initiated and taken to its logical end, preferably not exceeding six months, by the authority of the first instance. 55.3.2. In terms of the ruling of this Court in Arumugam Servai (supra), the States are directed to take disciplinary action against the concerned officials if it is found that (i) such officials did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident had already occurred, such officials did not promptly apprehend and institute criminal proceedings against the culprits. 55.3.3. The State Governments shall create Special Cells in every District comprising of the Superintendent of Police, the District Social Welfare Officer and District Adi-Dravidar Welfare Officer to receive petitions/complaints of harassment of and threat to couples of inter-caste marriage. 55.3.4. These Special Cells shall create a 24 hour helpline to receive and register such complaints and to provide necessary assistance/advice and protection to the couple. 55.3.5. The criminal cases pertaining to honour killing or violence to the couples shall be tried before the designated Court/Fast Track Court earmarked for that purpose. The trial must proceed on day to day basis to be concluded preferably within six months from the date of taking cognizance of the offence. We may hasten to add that this direction shall apply even to pending cases. The concerned District Judge shall assign those cases, as far as possible, to one jurisdictional court so as to ensure expeditious disposal thereof. 6. On earlier occasion, this Court has directed the Home Department to keep in view of a broader perspective and implement the mandate of the Apex Court. Learned Additional Public Prosecutor Ms. Shruti Pathak appearing for the State has ensured that on due consultation with the learned Public Prosecutor, the matter shall be taken up with the appropriate authority. 6.1. It is noticed that there is a sharp rise of such incidents and requests for the police protection are made each day in large numbers. Let the permanent mode directed by way of a single window to implement the decision of the Apex Court be worked-out by the State for the ease of the parties who are under absolute apprehension and also for the better administration of the entire issue. Division on the basis of caste issue is rampant and it being a cause on the society, therefore, deserves redressal urgently. 7. Division on the basis of caste issue is rampant and it being a cause on the society, therefore, deserves redressal urgently. 7. So far as the present case is concerned, let the Police Inspector incharge of Idar Police Station, District: Sabarkantha to provide police protection to the petitioners without further loss of time, which shall continue initially for a minimum period of 3 (three) months. However, later it will be the Superintendent of Police, Sabarkantha who shall decide the total length of period. The Superintendent of Police shall decide the total duration of protection, bearing in mind overall facts and circumstances. In the event of any difficulty petitioner shall approach this Court. 8. The present application stands disposed of accordingly. Direct service today is permitted.