Padma Baraik vs The State Of Jharkhand Through The ...
2022 Latest Caselaw 4991 Jhar

                                                   1                  W.P. (Cr.) No. 123 of 2022


                    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              W.P. (Cr.) No. 123 of 2022
                  Padma Baraik, aged about 38 years, son of Rajendra Baraik, resident
                  of H. No.116, Harmu Housing Colony, Doranda, P.O. & P.S. Doranda,
                  District- Ranchi, Jharkhand                      ... Petitioner
                                          -Versus-
             1.   The State of Jharkhand through the Chief Secretary, Government of
                  Jharkhand, Project Building, P.O. & P.S. Dhurwa, District- Ranchi,
                  Jharkhand
             2.   The Home Secretary, Government of Jharkhand, Project Building, P.O.
                  & P.S. Dhurwa, District- Ranchi, Jharkhand
             3.   Sunil Badal, resident of 311 Vaishni Friends Colony, Pandra, P.O.
                  Pandra, P.S. Pandra, District- Ranchi, Jharkhand ... Respondents
                                           -----

             CORAM:       HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                           -----
             For the Petitioner      : Ms. Padma Baraik, In person
             For the State           : Mrs. Vandana Singh, Sr. S.C.-III
             For Respondent No.3     : Mr. Awanish Ranjan Mishra, Advocate
                                           -----

10/09.12.2022. Heard Ms. Padma Baraik, the petitioner appearing in person,

Mrs. Vandana Singh, learned counsel for the State and Mr. Awanish Ranjan

Mishra, learned counsel for respondent no.3.

2. This petition has been filed for direction upon respondent nos. 1 and

2 to perform statutory duty to do proper investigation in connection with

Ranchi SC/ST Case No.14 of 2022 by arresting respondent no.3 and/or high

level enquiry. The prayer is also made for directing the publishing authority

(respondent no.3) to desist from publication, sale of novel 'Moy Sushila'.

The prayer is also made for direction upon respondent no.3 to pay

appropriate compensation, caused due to loss of reputation of the petitioner

in the society.

3. The petitioner appearing in person submits that she is a rape victim

and her children's right to life, dignity and fundamental right have been

deprived by publishing a novel by respondent no.3 'Moy Sushila' which is on

the past of this petitioner and she was compelled to commit suicide due to

threat and coercion of the society. She submits that FIR being Ranchi SC/ST

Case No.14 of 2022, dated 03.02.2022 has been registered under Section

292, 306, 511, 504 and 506 of the Indian Penal Code and under Section

3(1)(s)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act. She further submits that in spite of registration of the FIR,

respondent no.3 has not been arrested. According to her, she is a Scheduled

Tribe in the State of Jharkhand. She was married to one Basant Yadav and

after one year of marriage, the petitioner filed a complaint as well as case

for maintenance against her husband Basant Yadav and she obtained

divorce from Basant Yadav. She was again victim of rape by Mohd. Ali and

three other accused and Sadar Palamu P.S. Case No.162 of 2002 was

registered against them and they have been put on trial. She submits that

one FIR being Case No.304 of 2005 was also registered by this petitioner on

02.08.2005 against the then Deputy Inspector General of Police under

Section 376, 376(2)(a) of the Indian Penal Code and Section 3(1)(xii) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The

said case was tried as Sessions Trial No.257 of 2006. She submits that in

Sessions Trial No.11 of 2006, the accused Mohd. Ali was convicted for 10

years, however the then Deputy Inspector General of Police was acquitted

in Sessions Trial No.257 of 2006 by the learned Sessions Judge vide

judgment dated 23.12.2017 which is under challenge before the High Court.

She further submits that she is a victim and her apathy was heard by the

Hon'ble Supreme Court and the order was passed on 20.01.2021 directing

the State of Jharkhand to ensure that minor children of the petitioner be

provided free education till they attain the age of 14 years, the Deputy

Commissioner, Ranchi will provide house to the petitioner under Prime

Minister Awas Yojna or any other Central or State Scheme, the Senior

Superintendent of Police, Ranchi and other competent authority shall review

the Police security provided to the petitioner from time to time, the District

Legal Services Authority, Ranchi on representation made by the petitioner

shall render legal services to the petitioner. On these directions, the petition

was disposed of by the Hon'ble Supreme Court. She submits that the

Hon'ble Supreme Court has protected her and in that view of the matter,

'Moy Sushila' which is a story of her past, is direct attack on the dignity of

the petitioner and for that respondent no.3 may be directed to be taken into

custody and she is entitled for compensation. On these grounds, she

submits that this matter may be handed over to the specialized agency for

investigation and the petitioner be provided compensation by the order of

this Court.

4. The petitioner has supplied rejoinder to the counter affidavit filed by

respondent no.3 in the Court, which has been taken on record.

5. By way of referring rejoinder, she submits that she has denied the

averments made in the counter affidavit filed by respondent no.3.

6. Per contra, Mrs. Vandana Singh, learned Sr. S.C.-III appearing for the

State submits that pursuant to the direction of the Hon'ble Supreme Court,

the State has come into action and immediately the petitioner has been

provided security. She submits that the study of the petitioner's children has

been taken care of and the Deputy Commissioner, Ranchi has provided

residence to her and three bodyguards have also been provided for her

security. She draws attention of the Court to several paragraphs of the

counter affidavit filed on behalf of the respondent-State and submits that

how investigation has been done with regard to the FIR which is the subject

matter of this case. She further submits that investigation is still going on

and one fact has come during the investigation with regard to mobile

nos.8825384187 and 9431174904 which are of the informant and

respondent no.3 respectively and on enquiry of the Call Details Report

(CDR), it was found that on a particular date, both of them have not talked

with their mobile phone numbers and it has further come in the

investigation that the petitioner has called respondent no.3 through one

mobile number of her bodyguard. She submits that the investigation is

going on in right direction and the police has taken every efforts to

complete the investigation at the earliest. By way of referring Sections on

which the FIR is registered, she submits that once the investigation will

complete, it will be clear, however the ingredients of those Sections apart

from one or two, are not made out. She also submits that the order of the

Hon'ble Supreme Court has been complied with in its letter and spirit and

prima facie, it appears that 'Moy Sushila' is an imagination of the writer of

the book. The disputed question of fact cannot be decided under Article 226

of the Constitution of India. The petitioner is having alternative remedy by

way of filing appropriate suit and once she proves the allegations, the

competent court can pass appropriate order. On these grounds, she submits

that this petition is not fit to be entertained.

7. Mr. Awanish Ranjan Mishra, learned counsel for respondent no.3

submits that respondent no.3 is a Man of letters having 42 years of

continuous, uninterrupted and unblemished career in all dimensions of

journalism including Akashvani, Doordarshan etc. He has written nine books

out of which, one some stories documentary and films are being made. He

also hold other responsible posts like Vice President of Jharkhand

International Film Festival and President of PRCI, Jharkhand Chapter. He has

got no criminal antecedent and his name has never come in any case prior

to present one, in which he has been roped by the petitioner with ulterior

motive. He further submits that the so far as the allegation with regard to

threatening is concerned, it has come during the course of investigation that

call was made by the petitioner to respondent no.3 by the mobile of her

bodyguard. Respondent no.3 has neither made any call to the petitioner nor

met her in his entire life of 61 years. He further submits that Palamu Sadar

P.S. Case No.304 of 2005, Ranchi Kanke P.S. Case No.56 of 2004, Ranchi

Lower Bazar P.S. Case No142 of 2005 and Ranchi Sukhdeonagar P.S. Case

no.781 of 2014 have been instituted by this petitioner against the persons.

He also submits that this petitioner has instituted several cases against

various persons from Jharkhand, Bihar, U.P. to Delhi by different name,

some times she is Padma Devi @ Sushma, some times she is Sushma

Baraik, Padma Baraik, Padama Devi @ Sushma Baraik etc., which suggests

that the petitioner is only playing victim card. He submits that the book 'Moy

Sushila' is with him, which is the subject matter of the FIR. The said book

was taken over and be kept on record.

8. Mr. Awanish Ranjan Mishra, learned counsel for respondent no.3

submits that by way of referring disclaimer, it has been disclosed therein

that whatever the contents in the said book is the imagination of the writer

of the book and if there is coincidence with social life of any person, that is

by way of chance and there is no intention of the writer to harm anyone. On

these grounds, he submits that this writ petition is fit to be dismissed.

9. In view of the above facts and considering the submissions of the

learned counsel for the parties, the Court has gone through the materials on

the record and finds that admittedly the FIR being Ranchi SC/ST Case No.14

of 2022 has been registered against respondent no.3 and the subject matter

of the FIR is the book namely 'Moy Sushila'. The investigation is going on

and in the investigation, it has come that respondent no.3 has not

approached the petitioner rather she has approached respondent no.3 by

calling him by using mobile phone of her bodyguard. However, once charge-

sheet will be submitted, everything will be clear and with regard to the

allegation, the Court is restrained itself in making comment and veracity of

the claim as observation of the Court may hamper the investigation. There

is no doubt that the petitioner has approached the Hon'ble Supreme Court

in Writ Petition (Civil) No.1352 of 2019, contained in Annexure-1 of the writ

petition. The direction issued by the Hon'ble Supreme Court has been

complied with, as has been submitted by the learned counsel for the

respondent-State, which has not been denied by the petitioner appearing in

person. From the record, it transpires that so many cases have been filed by

this petitioner against several persons. Once the Court comes to a

conclusion that the investigation is not going on in right direction, the Court

has rise to the occasion and has directed to take up the investigation by a

particular specialized agency. In the case in hand, the informant is seeking

investigation by a particular agency. Pursuant to the order of the Hon'ble

Supreme Court in the aforesaid writ petition, the State has acted upon and

has complied with the said order. It is anathema to think that if such an

order is there of the Hon'ble Supreme Court, the State will not proceed in

accordance with law and subsequent FIR. The investigation is going on and

nothing has been brought on the record to suggest that the investigation is

being tampered with and the police officials are helping anybody. In that

view of the matter, the prayer of the petitioner with regard to handing over

this matter to the particular agency is not made out and, hence, the same is

rejected.

10. The Court has gone through the contents of the few pages of the said

book. In page 45 of the said book, one name is disclosed as Sushila Baraik

and it has been contended by the petitioner appearing in person that it is

her name and that is why that book is direct on the story of this petitioner.

However looking into the averments made in the counter affidavit of

respondent no.3, it transpires that this petitioner is being known as Padma

Devi @ Sushma, Sushma Baraik, Padma Baraik, Padama Devi @ Sushma

Baraik etc. Thus in absence of any cogent reason and in absence of

evidence, this Court cannot hold that this is the story of this petitioner.

Looking into the disclaimer of the book, it has been stated therein that the

story is imagination of the writer of the book, anybody's name whether alive

or dead, nothing to do with them and if it has happened by way of chance,

there is no intention to malign any community or any caste. Only on the

experience of service while working in radio and while touring the State of

Jharkhand and on that imagination and experience, the book has been

written. Thus, it cannot be said that this book is direct on the story of

this petitioner.

11. The right to propagate one's idea is inherent in the conception of

freedom of speech and expression. The right to freedom of speech and

expression is a individual right guaranteed to every citizen by Article 19(1)

(a) of the Constitution of India. A reference may be made to the case of

Sakal Papers Pvt. Ltd. v. Union of India; (AIR 1962 SC 305) in which

in paragraphs 25 and 35, right of freedom as well as expression by way of

mouth has been discussed. Paragraphs 25 and 35 of the said judgment are

quoted herein below:

"25.A bare perusal of the Act and the Order thus makes it abundantly clear that the right of a newspaper to publish news and views and to utilise as many pages as it likes for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation of the Order every newspaper was free to charge whatever price it chose, and thus had a right unhampered by State regulation to publish news and views. This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular price charged. The question is whether this amounts to any abridgment of the right of a newspaper to freedom of expression. Our Constitution does not expressly provide for the freedom of press but it has been held by this Court that this freedom is included in "freedom of speech and expression" guaranteed by clause (1)(a) of Article 19, Vide Brij Bhushan v. State of Delhi [(1950) SCR 605, 610] . This freedom is not absolute for, clause (2) of Article 19 permits restrictions being placed upon it in certain circumstances. That clause runs thus:

"Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrict ions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."

It is not claimed on behalf of the State that either the Act or the Order made thereunder can be justified by any of the circumstances set out in this clause. The right to propagate one's ideas is inherent in the conception of freedom of speech and expression. For the purpose of propagating his ideas every citizen has a right to publish them, to disseminate them and to circulate them. He is entitled to do so either by word of mouth or by writing. The right guaranteed thus extends, subject to any law competent under Article 19(2), not merely to the matter which he is entitled to circulate, but also to the volume of circulation. In other words, the citizen is entitled to propagate his views and reach any class and number of readers as he chooses subject of course to the limitations permissible under a law competent under Article 19(2). It cannot be gainsaid that the impugned order seeks to place a restraint on the latter aspect of the right by prescribing a price page schedule. We may add that the fixation of a minimum price for the number of pages which a newspaper is entitled to publish is obviously not for ensuring a reasonable price to the buyers of newspapers but for expressly cutting down the volume of circulation of some newspapers by making the price so unattractively high for a class of its readers as is likely to deter it from purchasing such newspapers.

35. It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject, of course, to permissible restrictions. Bearing this principle in mind it would be clear that the right to freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions and views with complete freedom and by resorting to any available means of publication, subject again to such restrictions as could be legitimately imposed under clause (2) of Article 19. The first decision of this Court in which this was recognized is Romesh Thapar case [(1950) SCR 594] . There, this Court hold that freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by the freedom of circulation. In that case this Court has also pointed out that freedom of speech and expression are the foundation of all democratic organisations and are essential for the proper functioning of the processes of democracy. There and in other cases this Court pointed out that very narrow and stringent limits have been set to permissible legislative abridgment of the right of freedom of speech and expression. In State of Madras v. V.G. Row [(1952) 1 SCC 410 : (1952) SCR 597] the question of the reasonableness of restrictions which could be imposed upon a fundamental right has been considered. This Court has pointed out that the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and scope of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at that time should all enter into the judicial verdict. In Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd. [(1954) SCR 674] this Court has pointed out that in cons truing the Constitution it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspect. The correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the restriction. In Virendra v. State of Punjab [(1958) SCR 308] this Court has observed at p. 319 as follows:

"It is certainly a serious encroachment on the valuable and cherished right of freedom of speech and expression if a newspaper is prevented from publishing its own or the views of its correspondents relating to or concerning what may be the burning topic of the day."

12. Thus, there is no doubt that freedom of expression is an undeniable

right provided under the Constitution, but that right is subject to certain

well defined and well established limitations which have been incorporated

in Article 19(2) of the Constitution. Moreover, there is disputed question of

fact and on the basis of the contention of the petitioner, it cannot be held

under Article 226 of the Constitution of India that the contents of the said

book is direct aspersion on the life of the petitioner. Accordingly, second

prayer is rejected.

13. So far as compensation is concerned, that can be granted in

appropriate cases that too not in a per-matured stage, where it has not

been proved that any wrong has been done by respondent no.3 and that

can be done only once the trial is there by way of considering the evidence.

Thus, exercising power under Article 226 of the Constitution of India in this

petition, is unwarranted. A reference made be made to the judgment

passed in A.K. Singh and others v. Uttarakhand Jan Morcha and

others; [(1999) 4 SCC 476] . Paragraphs 12 and 14 of the said judgment

are quoted herein below:

"12. All the learned counsel made a scathing attack on the rationale of the High Court in fixing such a huge sum as compensation at a premature stage. They contended that the High Court while imposing such a heavy liability on the State has not made any attempt to discuss the relevant questions which are to be answered for fixing the liability of compensation and for quantification of the amount of compensation. On consideration we are satisfied that there is ample substance in the contentions raised by the learned counsel in this regard. The direction for payment of compensation is clearly unsustainable and is liable to be vacated. We are told that pursuant to the directions in the impugned judgment amounts have been disbursed to all those persons who claimed it. We, therefore, make it clear that no further amount need be paid as compensation pursuant to the judgment of the High Court but if any sum has been disbursed to the claimants the State will not recover the same from them. We also make it clear that if any person has not made his/her claim or has not received compensation despite making a claim for it, it will be open to him/her to approach the competent court for compensation in accordance with law.

14. The magnitude of the financial burden for complying with the said direction has been approximately estimated as amounting to several crores of rupees. The money has to come out of the State coffers. A criticism made against such a direction is that learned Judges of the High Court did not take into account the financial capacity of the State Government, nor its resources for making up the said amount nor the priorities to be honoured by the State Government nor even the legislative mandates involving State funding, while ordering the Government to incur such a huge expenditure of a recurring nature."

14. In that view of the matter, third prayer with regard to compensation,

at this stage when the crime is not proved, cannot be allowed in favour of

the petitioner.

15. In view of the above facts, reasons and analysis, this writ petition

stands dismissed.

(Sanjay Kumar Dwivedi, J.) Ajay/