Xxx (The Victim) vs State Of West Bengal & Ors
2023 Latest Caselaw 4893 Cal

Form No. J(2)

                 IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION

Present:
The Hon'ble Justice Jay Sengupta


                              WPA 16301 of 2023

                              XXX (The Victim)
                                   -vs-
                        State of West Bengal & ors.



For the petitioner            : Mr. Rameshwar Sinha

For the State                 : Mr. Ashim Kumar Ganguly
                                Mr. Manas Kumar Sadhu

For the private respondents   : Mr. Subhojit Saha

Mr. Shibaji Das Mr. Sayan Sarkar Ms. Ishrat Benazir

Heard on : 19.07.2023, 04.08.2023, 07.08.2023, 09.08.2023

Judgment delivered on : 09.08.2023

This is an application under Article 226 of the Constitution of

India praying for a direction upon the respondent authorities,

especially the respondent no.6 to protect the life and property of the

petitioner and to restore the possession of the shop to the petitioner.

A further report filed on behalf of the State is taken on record.

On 04.08.2023 the Investigating Officer of the case and the

Inspector-in-charge of Uluberia Police were present in Court with the

Case Diary. Their presence was noted and dispensed with.

Learned counsel appearing on behalf of the petitioner submits

as follows. The petitioner is a tea stall owner. The private

respondents applied pressure on her and her family members to part

with the said shop. As the petitioner did not yield to their pressure,

the private respondents committed gangrape on her. There was also

an attempt to rape her minor daughter. The shop was practically

taken over by the miscreants. In spite of this, even the petitioner's

complaint was not entertained by the local police station. In the

meantime, the petitioner's husband committed suicide. She was

constrained to file two applications under Section 156 (3) of the

Code. The accused were not arrested. No charge-sheet was

submitted. Later on, three of the accused were arrested although the

prime accused is still roaming around in the same area. The

miscreants are still threatening and intimidating the petitioner and

her family members. The private respondents are also having a

strong political clout. In such circumstances, it is absolutely

imperative that some police protection be immediately given to the

victim and her family.

Learned counsel appearing on behalf of the State relies on the

report and the case diary and submits as follows. Investigation is

going on. Three accused were arrested. Raids have been made to nab

the other accused. In fact, the police have got warrants of arrest

issued against them. However, there is a mass petition made by the

local people that the defacto-complainant victim was committing

some wrong doing in that area. This had prompted the victim to

issue a declaration that she would not to do such things again. That

apart, according to a document sent with the mass petition, it can be

seen that the petitioner had agreed to sell away her shop on the PWD

land to the private respondents for valuable consideration. Medical

examination has been done of the victim lady. However, she refused

medical examination for the minor daughter. A Section 164

statement of the victim lady has also been recorded.

Learned counsel appearing on behalf of the private

respondents denies all the allegations leveled against his clients and

submits that the petitioner had agreed to sell away her stall to the

private respondents and taken sum of rupees five lakhs as an

advance sum.

I have heard the submissions of the learned counsels for the

parties and have perused the writ petition, the reports filed by the

State and the case diary.

It is the allegation of the defacto-complainant petitioner that

she was brutally gangraped by the private respondents and an

attempt was made to rape her minor daughter. In spite of that, the

police did not take any complaint. She had to approach a learned

Magistrate under Section 156 (3) of the Code even for the registration

of an FIR.

The police, on the other hand, relies on certain documents

indicating, as if, the petitioner was committing doing some wrong

things in the locality. Even if, for arguments' sake, it is assumed that

she had committed some wrong doing that gives no justification for

the private respondents to commit such a crime or for the police not

to entertain an allegation of gangrape.

The collusion between the so-called villagers making a mass

petition against the petitioner and the private respondents is

absolutely clear. The purported document agreeing to sell the tea

stall to the private respondents that should have been there with the

accused were allegedly submitted to the police along with the mass

petition.

It also appears that the victim was made to give some kind of

an undertaking.

However, a prima facie case is made out as would be evident

from the materials including the statement of the victim recorded

under Section 164 of the Code.

The police have failed to have the other culprits including the

main accused arrested. They are in a way encouraging victim

shaming with their outrageous stand.

This is indeed an unfortunate state of affairs.

This is a fit case which should immediately be transferred to

the CID for investigation.

Further investigation of the case be immediately handed over

to the CID.

In the precarious situation that the petitioner is presently in,

the Inspector-in-Charge of Uluberia Police Station is directed to

depute an armed police officer for the security of the petitioner and

her family members. This protection shall continue till filing of the

report in final Form.

The local police authorities shall also ensure that no breach of

peace takes place.

Appropriate steps be taken by the concerned authorities so

that the identities of the victim and her minor victim daughter are

not disclosed.

With these observations, the writ petition is disposed of.

Urgent Photostat certified copy of this order be supplied to the

parties, if applied for, as early as possible.

(Jay Sengupta, J.)

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