Guria Swayam Sevi Sansthan Thru. ... vs State Of U.P. And 8 Others
2015 Latest Caselaw 1974 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Chief Justice's Court                                                                                                  AFR
 

 
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 39836 of 2015
 

 
Petitioner :- Guria Swayam Sevi Sansthan Thru. Ajeet Singh
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Raj Kumar
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Yashwant Varma,J.

On 2 July 2015, a news report appeared in the print media particularly in newspapers circulating in the district of Varanasi stating that a three year old daughter of a rickshaw puller had been brutally raped by unknown persons and had sustained grievous injuries. The incident is alleged to have taken place on 5 June 2015 when the child victim was asleep outside her house. The child was abducted in the night and was recovered from the banks of the Varuna river. The allegation in the petition is that the SHO of the police station at Jaitpura in district Varanasi was informed by the father and grand mother of the victim but neither was a first information report registered nor were any facilities provided for the immediate medical treatment of the child. The child was initially brought to the Bunkar Hospital, Jaitpura but due to the seriousness of her condition, she was not admitted. Thereafter the child was brought to the Shiv Prasad Gupt Divisional District Hospital, Kabir Chaura, Varanasi but the medical officer on duty declined to admit her. The child was then taken to the BHU Hospital where the Doctor at the emergency ward allegedly denied to admit her. The child was thereafter administered primary medical care at a private clinic by the name of Uma Pharmacy and the attendants were advised to take her to the Divisional District Hospital. The child was admitted to the District Hospital on 6 June 2015 where she remained until 9 June 2015. The allegation is that the attending Doctors were demanding medical expenses but since the attendants were not in a position to pay, proper medical care was not administered and the child was eventually discharged on 9 June 2015. On 11 June 2015, a first information report was registered in Case Crime No. 79 of 2015. The FIR which had been lodged by the grand mother of the victim stated that the child had been abducted at 3:00 a.m. on 5 June 2015 and the child was found at the banks of a river with grievous injuries including on her genitals. Surprisingly, an FIR was registered only under Sections 323 and 354 (A) of the Penal Code.

The record indicates that the child was medically examined at the District Hospital on 11 June 2015. The report of the medical examination which had been placed for the perusal of the Court by the learned Standing Counsel indicated a case of sexual assault. The injuries found on medical examination on the genitals of the child have been adverted to in the report. The medical report also indicates stitches present on the left side of the forehead above the left eye and lacerations present over the left side of the upper lip. The child remained at home without treatment after she was discharged from the District Hospital on 16 June 2015 until 22 June 2015. On 22 June 2015, the child was brought for admission to the Sir Sunder Lal Hospital BHU, Varanasi where she was admitted. The medical report at the OPD section indicates that the child was referred for paediatric surgery. The injuries which were found in the genital area had been adverted to during the course of the medical examination which took place on 22 June 2015 at 9 pm. The in patient investigation record indicated that the case was one of sexual assault.

The writ petition was filed in these circumstances, seeking various directions both in regard to lapses of a systemic nature and for directions that would ensure proper medical care for the child who was a victim of sexual violence as well as for the investigation of the offence. On 21 July 2015, this Court issued directions for the provision of proper medical care to the child at the Sir Sunder Lal Hospital, Banaras Hindu University, Varanasi at the expense of the State. We directed that all required expenses shall be borne by the State and the child shall not be denied any treatment that is prescribed by the hospital on account of the inability of her attendants to bear the expenses.

The second aspect of the matter, which was dealt with in the order, was that the instructions which were made available to the learned Standing Counsel by the SHO, Jaitpura, Varanasi indicated that on 6 June 2015, the child was admitted at the Divisional District Hospital at 6:30 am but it was stated that the child had sustained injuries due to a fall from the roof. It was stated that the medical examination indicated only an injury on the head due to a hard and blunt object and there was no indication of any injury on any other part of the body apart from the alleged injury. We observed that the statements and the instructions, which were furnished to the learned Standing Counsel, do not record the injuries which were found on the body of the child during the course of medical examination at the District Women Hospital, Varanasi on 11 June 2015. From the record, it appears that it was only on 27 June 2015 that the provisions of Sections 3 and 4 of the Protection of Children from Sexual Offences Act were invoked and on 1 July 2015 that the provisions of Section 376 of the Penal Code were invoked. In this background, this Court issued directions for the conduct of a proper and fair investigation and observed that effort should not be made to cover up the lapses which prima facie appear to have occurred in the investigation. The Senior Superintendent of Police was directed to monitor the investigation and to submit a status report before this Court within a period of two weeks.

Subsequently, on 4 August 2015, the Court was apprised of the report of the Senior Superintendent of Police, which showed that investigation was in progress and one arrest had been made. The Court was also apprised of the OPD slip of the minor which indicated that the child had suffered a complete perineal tear which would need surgical repair. The child was under treatment of the Sir Sunder Lal Hospital, Baranas Hindu University, Varanasi. This Court directed the Chief Medical Officer to personally monitor the progress of the treatment and to place a status report. In pursuance of these directions, which were issued by this Court, the learned Standing Counsel has placed on the record a compilation of documents and instructions, which have been made available to him.

The first aspect relates to the investigation into the offence. The report, which has been submitted by the Senior Superintendent of Police on 22 August 2015, states that on 3 August 2015, a person who was alleged to be involved in the commission of the offence was placed under arrest and after investigation, a charge-sheet has now been filed on 21 August 2015 under Sections 323/354-A/363/376 of the Penal Code and Section ¾ of the POCSO Act. The investigation has thus been completed and a charge-sheet has been filed.

The second aspect is the payment of compensation as envisaged under the scheme which has been put into place by the State Government under Section 357-A of the Code of Criminal Procedure, 1973. A scheme has now been implemented by the State and is called the Uttar Pradesh Rani Laxmibai Samman Kosh Yojana. The scheme under Section 357-A is being implemented in pursuance of the directions, which were issued by this Court in an earlier public interest litigation. Sanction has been granted by the District Magistrate for the payment of a first instalment of Rs.1 lac to the victim in the present case and the amount has to be deposited in the name of the child in an account at the Punjab National Bank held jointly with the grand-mother.

The third aspect relates to proper medical care and treatment of the child. In this regard, the Court has been informed that all expenses for the medical treatment of the child are being borne by the State and reimbursement would also be made in respect of the medical expenses which were incurred by the family of the child. The child was operated upon surgically on 19 August 2015. Finally, the Court has also been informed that the Senior Superintendent of Police has issued necessary directions for launching prosecution under Sections 166-A of the Penal Code and the Sub-Inspector and the Station House Officer have been placed under suspension. We are also of the view that the Senior Superintendent of Police will have to duly ensure that the role of any medical doctor or staff, who may have been in dereliction of duties, is properly enquired into and, if there is any violation of Section 166-B of the Penal Code, necessary steps shall be taken in accordance with law.

Another aspect, which has been raised in the public interest litigation, is that necessary steps should be taken by the State Government for implementing the guidelines and protocols formulated by the Union Ministry of Health and Family Welfare for the medico-legal care of survivors/victims of sexual violence. These guidelines have been adopted by the Union Government in pursuance of the recommendations of an expert Committee which was constituted on 18 March 2013, chaired by the Secretary in the Union Ministry of Health and Family Welfare. The Committee has formulated a detailed protocol for handling matters of care and rehabilitation for survivors/victims of sexual violence. The State of Uttar Pradesh would do well to implement these guidelines after they are duly considered by the Principal Secretary in the Department of Women and Child Development, Government of Uttar Pradesh.

We, accordingly, deem it appropriate and proper to issue the following directions in the present proceedings:

(i) The child in the present case, who has been a victim of sexual violence, shall continue to receive all medical care at the Sir Sunder Lal Hospital, Banaras Hindu University, Varanasi. In the event that the Chief Medical Officer of the hospital considers it necessary to refer the child to any other Institution for further expert medical care, which may be unavailable at the hospital, this shall be duly coordinated by the Chief Medical Officer with the District Magistrate, so that medical treatment of the child is completed in accordance with the expert medical opinion. The child otherwise shall remain under the care of the Chief Medical Officer of the Sir Sunder Lal Hospital, BHU, Varanasi for the purposes of medical treatment. All expenses in regard to the surgical and the post surgical care shall be borne by the State and no part of the expenses shall be demanded from the relatives of the child;

(ii) All necessary steps shall be taken by the District Magistrate for disbursement of compensation in accordance with the provisions of Section 357-A of Code of Criminal Procedure expeditiously;

(iii) The Senior Superintendent of Police shall ensure that necessary action both departmental and of a penal nature is pursued against any person who is found to be involved in dereliction of duties in extending proper medical care and in respect of any offence which, upon investigation, appears to have been prima facie committed in respect of the provisions of Sections 166-A and 166-B of the Penal Code. The investigation in that regard shall be taken to its logical conclusion expeditiously. Since the Court has been informed that a charge-sheet has already been filed, as we have noted above, against the accused who is in custody, no further directions are necessary in that regard particularly, at the present stage. We direct that the authorities concerned shall act with due sensitivity to the concerns of the child who has been subjected to sexual violence so that the rehabilitative process is duly completed and;

(iv) The Principal Secretary in the Department of Women and Child Development, Government of Uttar Pradesh is requested to expeditiously take up the issue pertaining to the implementation of the guidelines and the protocols framed by the Union Ministry of Health and Family Welfare for extending proper medical care to survivors/victims of sexual violence.

Learned counsel appearing on behalf of the petitioner has agreed to forward a copy of the guidelines which are annexed at Annexure-10 to these proceedings to the Principal Secretary in the Department of Women and Child Development, Government of Uttar Pradesh along with a certified copy of this order, for a decision and appropriate directions in the matter of implementation.

We reserve liberty to the petitioner to move this Court in appropriate proceedings either in the present petition or afresh, if need arises for further directions.

The petition is, accordingly, disposed of in the aforesaid terms. There shall be no order as to cost.

Order Date :- 25.8.2015

RKK/-

			(Yashwant Varma, J)              (Dr D Y Chandrachud, CJ)