Birendra Singh vs State Of Jharkhand Through The ...
2023 Latest Caselaw 3029 Jhar

                                                  1                  W.P. (Cr.) No. 54 of 2009


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             W.P. (Cr.) No. 54 of 2009
                 Birendra Singh                                    ... Petitioner
                                         -Versus-
            1.    State of Jharkhand through the Chief Secretary, Government of
                  Jharkhand, Ranchi
            2.    The Principal Secretary, Department of Home Affairs, Government of
                  Jharkhand, Ranchi
            3.    The Director General of Police, Government of Jharkhand, Ranchi
            4.    Deputy Inspector General, S.P. Range, Bokaro
            5.    Superintendent of Police, Bokaro
            6.    Shri Anand Mohan Singh, Officer-in-Charge, Bermo Police Station,
                  District- Bokaro                                  ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Rupesh Singh, Advocate For the State : Mr. Deepak Kumar Dubey, A.C. to A.A.G.-II For Respondent No.6 : Mr. Aashish Kumar, Advocate

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42/21.08.2023 Heard Mr. Rupesh Singh, learned counsel for the petitioner,

Mr. Deepak Kumar Dubey, learned counsel for the State and Mr. Aashish

Kumar, learned counsel for respondent no.6.

2. Mr. Rupesh Singh, learned counsel for the petitioner confines his

prayer to the extent of violation of reputation, right to life and privacy

guaranteed under Article 21 of the Constitution of India and harassment by

the police and for compensation to the petitioner. So far as other prayers

made in the writ petition is concerned, by way of passage of time they have

become infructuous and that is why, he is not pressing other prayers made

in the writ petition.

3. Mr. Rupesh Singh, learned counsel for the petitioner submits that the

petitioner was working as a Teacher in Bharat Singh Public School, Bermo

since 1982 and he was residing at Qr. No.303, Block-25, Ambedkar Colony,

Bermo, District- Bokaro. He further submits that the petitioner and his

family members are not having any criminal antecedent. On 10.02.2009 at

about 07:00 p.m. in the evening, the Officer-in-Charge, Bermo Police

Station namely Sri Anand Mohan Singh along with five policemen visited the

said quarter of the petitioner and asking for his son namely Nachiketa and

they took notes of his present address of Nachiketa and his mobile number

and thereafter informed him that his son Nachiketa had indulged in eve

teasing apart from using obscene language on mobile with the wife of

higher official. He submits that the son of the petitioner, namely, Nachiketa

has completed two years course in 2008 in National Trade Certificate

awarded by the State Council of Vocational Training at Pundag, Ranchi,

Jharkhand under the Department of Labour and Training, Government of

Jharkhand. Thereafter, he had undergoing coaching at Kartar Coaching

Centre, Ranchi for preparing Bank and Railway services. He was regularly

attending his classes till 10.02.2009 where after he was summoned by the

Bermo P.S. Officer-in-Charge and was being forced to miss his classes

because of the threats of respondent no.6. He was supposed to appear for

State Bank of India Clerical Grade Recruitment Exam scheduled for

01.03.2009 at Patiala, Punjab. He further submits that the petitioner on the

request of the Officer-in-Charge, Bermo Police Station talked to his son

Nachiketa and requested him to come to Bermo the next morning to meet

the Officer-in-Charge, Bermo Police Station. On 11.02.2009, after the

petitioner has left for his school, his son Nachiketa reached his residential

quarter and after informing his mother, he sent to the Bermo Police Station.

He thereafter informed his mother on phone that he had given his

statement before the police and that the police officials were asking him to

be taken to Bokaro. He further submits that on 12.02.2009 while the

petitioner had gone for making some purchases at the Vegetable Market,

respondent no.6 visited his quarter and after threatening his wife took away

his mobile set containing the number 9470120661 without giving any

receipt of the same and started making a number of calls from the said

mobile set. The petitioner informed the Superintendent of Police, Bokaro

with copy to the Hon'ble Governor of State of Jharkhand about the

aforesaid illegal act of respondent no.6. In the evening on 12.02.2009 itself

at around 07:00 PM, the respondent no.6 along with police constables came

to his quarter which comprises of only two rooms and invaded his house by

occupying one of the rooms where the said police constables got

themselves stationed. He also submits that on 14.02.2009, the behaviour of

the local police was published in the newspaper on the number of dates. On

14.02.2009, a notice was posted under the signature of the Officer-in-

Charge dated 14.02.2009 in which it has been alleged that in the name of

the petitioner's son Nachiketa that he has committed acts of eve teasing on

phone against the wife of a higher official. On 18.02.2009, the petitioner

made representation before the Director General of Police, Government of

Jharkhand, Ranchi, Deputy Inspector General of Police (Koyla Anchal),

Bokaro, Secretary, Jharkhand State Legal Services Authority and also before

the Chairman, National Human Rights Commission in which he has made a

request to undertake an independent enquiry into the matter, as contained

in Annexure-5 to the petition. He further submits that in the counter

affidavit filed by the respondent-State, Nachiketa mobile number is said to

be 9239879935 and the allegation was made that by that mobile the call

was made on mobile number 9204980385. He submits that in paragraph 5

of the counter affidavit, the mobile number disclosed as 9239879935 is not

of Nachiketa. He further submits that when the news was published,

thereafter, the said constables were removed from the house of the

petitioner. He also submits that in paragraph 11 of the counter affidavit,

filed by respondent no.6 there was an error while noting down the mobile

number on the direction of the Superintendent of Police, Bokaro. The

correct numbers are 9234879935 and 9204780385. He submits that

respondent no.6 in his counter affidavit, has disclosed totally different

mobile number as 9234879935, whereas, earlier it was 9239879935. To

substantiate this argument, he refers Annexures-A and G of the counter

affidavit filed by the respondent-State. He further submits that further

documents brought on record by way of counter affidavit at Annexure-R/6-A

are after thought. He further submits that vide order dated 14.08.2015, this

Court has directed the State to produce Command Register/Guard Register

to suggest whether the Guards were posted at the residence of the

petitioner or not and in view of that order, the same was not brought on

record and in the counter affidavit, it has been stated that it has been lost.

He also submits that all these have happened in absence of any FIR and if

such harassment has been put to the petitioner and his family members,

appropriate order is the need of the hour at least to suggest that such thing

may not happen in future with other persons. He submits that the

reputation of the petitioner has been badly harmed due to the action, that

too of an alleged act done by the son of the petitioner. He submits that if

the Court comes to the conclusion that Article 21 of the Constitution of

India has been violated, the Court can pass appropriate order under public

law remedy. To buttress this argument, he relied upon the judgment passed

by the Hon'ble Supreme Court in Chairman, Railway Board and others

v. Chandrima Das (MRS) and others; [(2000) 2 SCC 465] . He relied

upon paragraphs 9, 11, 12 and 13 of the said judgment, which are quoted

hereinbelow:

"9. Various aspects of the public law field were considered. It was found that though initially a petition under Article 226 of the Constitution relating to contractual matters was held not to lie, the law underwent a change by subsequent decisions and it was noticed that even though the petition may relate essentially to a contractual matter, it would still be amenable to the writ jurisdiction of the High Court under Article 226. The public law remedies have also been extended to the realm of tort. This Court, in its various decisions, has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the Government. The causing of injuries, which amounted to tortious act, was compensated by this Court in many of its decisions beginning from Rudul Sah v. State of Bihar [(1983) 4 SCC 141 : 1983 SCC (Cri) 798 : AIR 1983 SC 1086 : (1983) 3 SCR 508] . (See also Bhim Singh v. State of J&K [(1985) 4 SCC 677 : 1986 SCC (Cri) 47 : AIR 1986 SC 494], Peoples' Union for Democratic Rights v. State of Bihar [(1987) 1 SCC 265 : 1987 SCC (Cri) 58 : (1987) 1 SCR 631 : AIR 1987 SC 355], Peoples' Union for Democratic Rights v. Police Commr., Delhi Police Headquarters [(1989) 4 SCC 730 : 1990 SCC (Cri) 75 : (1989) 1 Scale 599], Saheli, A Women's Resources Centre v. Commr. of Police [(1990) 1 SCC 422 : 1990 SCC (Cri) 145 : 1989 Supp (2) SCR 488 : AIR 1990 SC 513], Arvinder Singh Bagga v. State of U.P. [(1994) 6 SCC 565 : 1995 SCC (Cri) 29 : AIR 1995 SC 117], P. Rathinam v. Union of India [1989 Supp (2) SCC 716 : 1991 SCC (Cri) 228],Death of Sawinder Singh Grower In re [1995 Supp (4) SCC 450 : 1994 SCC (Cri) 1464 : JT (1992) 6 SC 271 : (1992) 3 Scale 34] , Inder Singh v. State of Punjab [(1995) 3 SCC 702 : 1995 SCC (L&S) 857 : 1995 SCC (Cri) 586 : (1995) 30 ATC 122 : AIR 1995 SC 1949] and D.K. Basu v. State of W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92 : AIR 1997 SC 610] )

11. Having regard to what has been stated above, the contention that Smt Hanuffa Khatoon should have approached the civil court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law.

12. In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of fundamental rights which is involved. Smt Hanuffa Khatoon was a victim of rape. This Court in Bodhisattwa Gautam v. Subhra Chakraborty [(1996) 1 SCC 490 : 1996 SCC (Cri) 133] has held "rape" as an offence which is violative of the fundamental right of a person guaranteed under Article 21 of the

Constitution. The Court observed as under: (SCC p. 500, para

10) Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is violative of the victim's most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21.

13. Rejecting, therefore, the contention of the learned counsel for the appellants that the petition under public law was not maintainable, we now proceed to his next contention relating to the locus standi of the respondent, Mrs Chandrima Das, in filing the petition."

4. Learned counsel for the petitioner further submits that Article 21 with

regard to torture was again subject matter before the Hon'ble Supreme

Court in Mehmood Nayyar Azam v. State of Chhattisgarh and

others; [(2012) 8 SCC 1]. He refers paragraph 30 of the said judgment,

which is quoted hereinbelow:

"30. In Kiran Bedi v. Committee of Inquiry [(1989) 1 SCC 494] this Court reproduced an observation from the decision in D.F. Marion v. Davis [217 Ala 16 : 114 So 357 : 55 ALR 171 (1927)] : (Kiran Bedi case [(1989) 1 SCC 494] , SCC p. 515, para 25) "25. ... 'The right to the enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property.'"

5. Learned counsel for the petitioner also submits that unreasonable

search and seizure was considered by the Hon'ble Supreme Court in

District Registrar and Collector, Hyderabad and another v. Canara

Bank and others; [(2005) 1 SCC 496] . He refers paragraphs 18 to 24,

34 to 36, 39, 40 and 56 of the said judgment, which are quoted

hereinbelow:

"18. The right to privacy and the power of the State to "search and seize" have been the subject of debate in almost every democratic country where fundamental freedoms are

guaranteed. History takes us back to Semayne's case [(1603) 5 Coke's Rep 91a : 77 ER 194 (KB)] decided in 1603 where it was laid down that "Every man's house is his castle." One of the most forceful expressions of the above maxim was that of William Pitt in the British Parliament in 1763. He said: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail -- its roof may shake -- the wind may blow through it -- the storm may enter, the rain may enter -- but the King of England cannot enter-- all his force dare not cross the threshold of the ruined tenement."

19. When John Wilkes attacked not only governmental policies but the King himself, pursuant to general warrants, State officers raided many homes and other places connected with John Wilkes to locate his controversial pamphlets. Entick, an associate of Wilkes, sued the State officers because agents had forcibly broken into his house, broke locked desks and boxes, and seized many printed charts, pamphlets and the like. In a landmark judgment in Entick v. Carrington [(1765) 19 Howells' State Trials 1029 : 95 ER 807 : 2 Wils KB 275] Lord Camden declared the warrant and the behaviour as subversive "of all the comforts of society" and the issuance of a warrant for the seizure of all of a person's papers and not those only alleged to be criminal in nature was "contrary to the genius of the law of England". Besides its general character, the warrant was, according to the Court, bad inasmuch as it was not issued on a showing of probable cause and no record was required to be made of what had been seized. In USA, in Boyd v. United States [116 US 616 : 29 L Ed 746 (1886)] , US at p. 626, the US Supreme Court said that the great Entick [(1765) 19 Howells' State Trials 1029 : 95 ER 807 : 2 Wils KB 275] judgment was "one of the landmarks of English liberty. ... one of the permanent monuments of the British Constitution".

20. The Fourth Amendment in the US Constitution was drafted after a long debate on the English experience and secured freedom from unreasonable searches and seizures. It said:

"The right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Article 12 of the Universal Declaration of Human Rights (1948) refers to privacy and it states:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

Article 17 of the International Covenant of Civil and Political Rights (to which India is a party), refers to privacy and states that:

"No one shall be subjected to arbitrary or unlawful

interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation."

21. The European Convention on Human Rights, which came into effect on 3-9-1953, also states in Article 8:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well- being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others."

22.The Canadian Charter of Rights and Freedoms declares:

"Everyone has the right to be secure against unreasonable search and seizure."

23. The New Zealand Bill of Rights declares in Section 21 that "everyone has the right to be secure against unreasonable search or seizure, whether of the person, property or correspondence or otherwise".

24. Though the US Constitution contains a specific provision in the Fourth Amendment against "unreasonable search and seizure", it does not contain any express provision protecting the "right to privacy". However, the US Supreme Court has culled out the "right of privacy" from the other rights guaranteed in the US Constitution. In India, our Constitution does not contain a specific provision either as to "privacy" or even as to "unreasonable" search and seizure, but the right to privacy has, as we shall presently show, been spelt out by our Supreme Court from the provisions of Article 19(1)(a) dealing with freedom of speech and expression, Article 19(1)(d) dealing with right to freedom of movement and from Article 21 which deals with right to life and liberty. We shall first refer to the case-law in US relating to the development of the right of privacy as these cases have been adverted to in the decisions of this Court.

34. Intrusion into privacy may be by -- (1) legislative provisions, (2) administrative/executive orders, and (3) judicial orders. The legislative intrusions must be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose the court can go into the proportionality of the intrusion vis-à-vis the purpose sought to be achieved. (2) So far as administrative or executive action is concerned, it has again to be reasonable having regard to the facts and circumstances of the case. (3) As to judicial warrants, the court must have sufficient reason to believe that the search or seizure is warranted and it must keep in mind the extent of search or seizure necessary for the protection of the particular State interest. In addition, as stated earlier, common-law-recognised rare exceptions such as where warrantless searches could be conducted but these must be in good faith, intended to preserve evidence or intended to prevent sudden danger to person or property.

Development of law in India

35. The earliest case in India to deal with "privacy" and "search and seizure" was M.P. Sharma v. Satish Chandra [1954 SCR 1077 : 1954 Cri LJ 865] in the context of Article 19(1)(f) and Article 20(3) of the Constitution. The contention that search and seizure violated Article 19(1)(f) was rejected, the Court holding that a mere search by itself did not affect any right to property, and though seizure affected it, such effect was only temporary and was a reasonable restriction on the right. The question whether search warrants for the seizure of documents from the accused were unconstitutional was not gone into. The Court, after referring to the American authorities, observed that in the US, because of the language in the Fourth Amendment, there was a distinction between legal and illegal searches and seizures and that such a distinction need not be imported into our Constitution. The Court opined that a search warrant was addressed to an officer and not to the accused and did not violate Article 20(3). In the present discussion the case is of limited help. In fact, the law as to privacy was developed in later cases by spelling it out from the right to freedom of speech and expression in Article 19(1)(a) and the right to "life" in Article

21.

36. Two later cases decided by the Supreme Court of India where the foundations for the right were laid, concerned the intrusion into the home by the police under State regulations, by way of "domiciliary visits". Such visits could be conducted any time, night or day, to keep a tab on persons for finding out suspicious criminal activity, if any, on their part. The validity of these regulations came under challenge. In the first one, Kharak Singh v. State of U.P. [(1964) 1 SCR 332 : (1963) 2 Cri LJ 329] the U.P. Regulations regarding domiciliary visits were in question and the majority referred to Munn v. Illinois [94 US 113 : 24 L Ed 77 (1877)] and held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to "life" in Article 21. According to the majority, clause 236 of the relevant Regulations in U.P., was bad in law; it offended Article 21 inasmuch as there was no law permitting interference by such visits. The majority did not go into the question whether these visits violated the "right to privacy". But, Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty in Article 21, part of the right to freedom of speech and expression in Article 19(1)(a), and also of the right to movement in Article 19(1)(d), held that the Regulations permitting surveillance violated the fundamental right of privacy. In the discussion the learned Judge referred to Wolf v. Colorado [338 US 25 : 93 L Ed 1782 (1949)] . In effect, all the seven learned Judges held that the "right to privacy" was part of the right to "life" in Article 21.

39. We have referred in detail to the reasons given by Mathew, J. in Gobind [(1975) 2 SCC 148 : 1975 SCC (Cri) 468] to show that, the right to privacy has been implied in Articles 19(1)(a) and (d) and Article 21; that, the right is not absolute and that any State intrusion can be a reasonable restriction only if it has reasonable basis or reasonable materials to

support it.

40. A two-Judge Bench in R. Rajagopal v. State of T.N. [(1994) 6 SCC 632] held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21. "It is the right to be let alone." Every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed. The right to privacy has since been widely accepted as implied in our Constitution, in other cases, namely, People's Union for Civil Liberties v. Union of India [(1997) 1 SCC 301] , 'X' v. Hospital 'Z' [(1998) 8 SCC 296] , People's Union for Civil Liberties v. Union of India [(2003) 4 SCC 399] and Sharda v. Dharmpal [(2003) 4 SCC 493] .

56. [Ed.: Para 56 corrected vide Official Corrigendum No. F.3/Ed.B.J./8/2005 dated 17-1-2005.]. In Maneka Gandhi v. Union of India [(1978) 1 SCC 248] a seven-Judge Bench decision, P.N. Bhagwati, J. (as His Lordship then was) held that the expression "personal liberty" in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19 (emphasis supplied). Any law interfering with personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with personal liberty and right of privacy must also be right and just and fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14 it would be no procedure at all within the meaning of Article 21."

6. On these grounds, he submits that appropriate order may kindly be

passed.

7. Mr. Deepak Kumar Dubey, learned counsel for the State submits that

the counter affidavit has been filed on behalf of the State and the Officer-in-

Charge of the concerned Police Station after receiving the direction from the

Superintendent of Police dated 14.02.2009 has started enquiry with regard

to mobile number 9239879935, from which, the call was made to a lady. He

submits that the station diary entry was made from 10.02.2009 to

14.02.2009 and, thereafter, the enquiry was going on. He submits that this

is not a case that in absence of complaint, the police has gone to the house

of the petitioner. He submits that Nachiketa has tried to torture the wife of

Colonel of Indian Army. He further submits that if such a complaint was

there, there was no restriction of doing such enquiry and only enquiry was

going on. In view of that, the allegation made in the writ petition is fit to be

rejected. He also submits that the police has got every right to enquire

when a complaint is brought to the knowledge of the police. He submits

that so far as representation is filed, that is the matter of the record. He

relied upon the judgment passed by the Division Bench of this Court in

Court on its own Motion v. The State of Jharkhand and others in

W.P. (PIL) No.5497 of 2011 . He refers the observation made in

paragraph 5 of the said judgment, which is quoted hereinbelow:

"5. In this context, learned Counsel for the State has drawn our attention to a judgment rendered by Hon'ble Supreme Court in the case of Deputy Inspector General of Police & Another Vs. S. Samuthiram reported in (2013) 1 SCC 598. Expressing concern over the pernicious practice of eve-teasing and after referring to the Tamil Nadu Prohibition of Eve- Teasing Act, 1998, the Hon'ble Supreme Court in paragraph 34 issued various directions to curb eveteasing. The relevant paragraphs of judgment of the Hon'ble Supreme Court, which are paragraphs 29 to 34 reads as under:

29. We may, in the facts and circumstances of this case, wish to add some aspects which are also of considerable public importance. We notice that there is no uniform law in this country to curb eve-teasing effectively in or within the precinct of educational institutions, places of worships, bus-stands, metro stations, railway stations, cinema theaters, parks beaches, places of festival, public service vehicles or any other similar place. Eve-teasing generally occurs in public places which, with a little effort, can be effectively curbed. Consequences of not curbing such a menace are, needless to say, at times disastrous. There are many instances where girls of young age are being harassed, which sometimes may lead to serious psychological problems and even committing suicide.

Every citizen in this country has the right to live with dignity and honour which is a fundamental right

guaranteed under Article 21 of the Constitution of India. Sexual harassment like eve-teasing of 3 women amounts to violation of rights guaranteed under Articles 14, 15 as well. We notice that in the absence of effective legislation to contain eve-teasing, normally, complaints are registered under Section 295 or Section 509 IPC.

30. Section 294 IPC says that:

"294. Obscene acts and songs.- Whoever, to the annoyance of others-

(a) does any obscene act in any public, or

(b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both."

It is for the prosecution to prove that the accused committed any obscene act or the accused sang, recited or uttered any obscene song; ballad or words and this was done in or near a public place, it was of obscene nature and that it this was done in or near a public place, it was of obscene nature and that it had accused annoyance to others. Normally, it is very difficult to establish those facts and, seldom, complaints are being filed and criminal cases will take years and years and often people get away with no punishment and filing complaint and to undergo a criminal trial itself is an agony for the complainant, over and above the extreme physical or mental agony already suffered.

31. Section 509 IPC say:

"509. word, gesture or act intended to insult the modesty of a woman. -- Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound 4 shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both." The burden is on the prosecution to prove that the accused had uttered the words or made the sound or gesture and that such word, sound or gesture was intended by the accused to be heard or seen by some woman.

Normally, it is difficult to establish this and, seldom, a woman files a complaints and often the wrongdoers and left unpunished even if the complaint is filed since there is no effective mechanism to monitor and follow up such acts. The necessity of a proper legislation to curb eve-teasing is of extreme importance, even the Tamil Nadu legislation has no teeth.

32. Eve-teasing today has become a pernicious, horrid and disgusting practice. The Indian Journal of Criminology and Criminalistics (January-June 1995 Edn.) has categorised eveteasing into five heads viz.: (1) verbal eve-teasing;

(2) physical eve-teasing;

(3) psychological harassment;

(4) sexual harassment; and (5) harassment through some objects.

33. In Vishaka v. State of Rajasthan this Court has laid down certain guidelines on sexual harassment. In Rupan deol Bajaj v. Kanwar Pal Singh Gill this Court had explained the meaning of " modesty" in relation to women. More and more girl students, women, etc. Go to educational institutions, work places, etc. and their protection is of extreme importance to a civilised and cultured society. The experience of women and girl children in overcrowded buses, metros, trains, etc. are horrendous and a painful ordeal.

34. Parliament is currently considering the Protection of Woman against Sexual Harassment at Workplace Bill, 2010, which is intended to protect female workers in most workplaces. Provisions of that Bill are not sufficient to curb eve-teasing. Before undertaking suitable legislation to curb eve-teasing, it is necessary to take at least some urgent measures so that it can be curtailed to some extent. In public interest, we are therefore inclined to give the following directions: 34.1. All the State Governments and Union Territories are directed to depute plain clothed female police officers in the precincts of busstands and stops, railway stations, metro stations, cinema theaters, shopping malls, parks, beaches, public service vehicles, places of worship, etc. so as to monitor and supervise incidents of eve-teasing.

34.2. There will be a further direction to the State Government and Union Territories to install CCTV cameras in strategic positions which itself would be a deterrent and if detected, the offender could be caught. 34.3. Persons in charge of the educations institutions, places of worship, cinema theaters, railway stations, bus-stands have to take steps as they deem fit to prevent eve-teasing, within their precincts and, on a complaint being made, they must pass on the information to the nearest police station or the Women's Help Center.

34.4. Where any incident of eve-teasing is committed in a public service vehicle either by the passengers or the persons in charge of the vehicle, the crew of such vehicle shall, on a complaint made by the aggrieved person, take such vehicle to the nearest police station and give information to the police. Failure to do so should lead to cancellation of the permit to ply. 34.5. The State Governments and Union Territories are directed to establish Women Helpline in various cities and towns, so as to curb eve-teasing within three months.

34.6. Suitable boards cautioning such act of eveteasing be exhibited in all public places including precincts of educational institutions, bus-stands, railway stations,

cinema theaters, parks, benches, public service vehicles, places of worship, etc. 34.7. Responsibility is also on the passers-by and on noticing such incident, they should also report the same to the nearest police station or to Women Helpline to save the victims from such crimes.

34.8.The State Governments and Union Territories of India would take adequate and effecting measures by issuing suitable instructions to the authorities concerned including the District Collectors and the District Superintendent of Police so as to take effective and proper measures to curb such incidents of eve- teasing."

8. Learned counsel for the State further relied upon the judgment

passed by the Hon'ble Supreme Court in Central Bureau of

Investigation (CBI) and another v. Thomandru Hannah

Vijayalakshmi @ T.H. Vijayalakshmi and another; (2021 SCC

OnLine SC 923) and submits that in the said judgment, the Hon'ble

Supreme Court has directed to continue with the investigation. On these

grounds, he submits that the writ petition is fit to be rejected.

9. Mr. Aashish Kumar, learned counsel for respondent no.6 submits that

on 10.02.2009, respondent no.6 was attending the crime meeting at

Bokaro, which was headed by the Superintendent of Police, Bokaro. In the

said meeting itself, the Superintendent of Police has received a call from

Ranchi and thereafter he was verbally told that one Nachiketa, son of the

petitioner, from whose mobile number 9239879935 obscene call was on

mobile number 9204980385, which was the number of wife of senior official

at Ranchi and in view of that, respondent no.6 was directed to enquire into

the matter. He further submits that on 14.02.2009, the Superintendent of

Police, Bokaro has issued direction in writing to respondent no.6 to enquire

into the matter. He submits that call was made from mobile number

9234879935 by Nachiketa to mobile number 9204780385 to the wife of

Colonel of Indian Army. He submits that respondent no.6 enquired the

matter from the service provider and it was found that there was an error

while noting down the mobile number by the Superintendent of Police,

Bokaro and the correct numbers are 9234879935 and of victim

9204780385. He submits that the enquiry was not cooperated by the

petitioner and his son Nachiketa and that is why, constables were posted

there at the residence of the petitioner. He denies in the counter affidavit

the deputation of constables. He submits that the constables were already

removed when the news publication was there. He draws attention of the

Court to Annexure-R/6-A and submits that the said mobile number is of

Nachiketa, which has been provided by the service provider and in view of

that, respondent no.6 has done nothing wrong and this Court may kindly

dismiss this petition.

10. In view of the above submissions of the learned counsel for the

parties, this Court has gone through the materials on the record and finds

that admittedly on 10.02.2009 itself, the Officer-in-Charge of Bermo Police

Station went to the house of the petitioner and enquired in absence of any

written order, which was continued up to 13.02.2009 and written letter with

regard to the said enquiry was received by respondent no.6 on 14.02.2009.

Even the argument of the learned counsel for the State and respondent

no.6 are accepted to be true that after lodging of Sanha, the investigation

was going on, the Court finds that from 10.02.2009 to 13.02.2009, there

was no order. The question further remains that if the alleged act was done

by the son of the petitioner, namely, Nachiketa, why the petitioner and his

family members were being harassed by the police whereas on their

request, Nachiketa appeared before respondent no.6 on 11.02.2009 itself.

The document annexed with the writ petition suggests that on 14.02.2009 a

notice was posted to the house of the petitioner stating that his son has

committed acts of eve teasing. If that was the situation, only son was

required to be enquired into and interrogated, wheres, in the case in hand,

the entire family has been put on such harassment. The Court finds that in

paragraph 15 of the counter affidavit filed by respondent no.6, it has been

stated that the police force deputed in the house of the petitioner, has been

removed and that news items appeared on 18.02.2009 and in earlier

paragraph, the deputation of the police officer has been denied. The stand

taken by respondent no.6 is contradictory. Vide order dated 14.08.2015, this

Court called upon the State to produce Command Register/Guard Register

with regard to deputation of constables, however, the said Command

Register/Guard Register has not been brought on record and the said order

is of the year 2015 itself and only statement is made that the said Register

is missing, which further suggests that version of the respondent-State and

respondent no.6 are not correct with regard to deputation of the police

officials. In the counter affidavit filed by respondent no.5 at Annexure-A,

mobile number of Nachiketa is said to be 9239879935 and mobile number

of victim is said to be 9204980385 and in the same counter affidavit at

Annexure-G, the mobile number of Nachiketa is said to be 9239859935 and

the mobile number of victim is said to be 9204980385. It has been stated in

the counter affidavits filed by the respondent-State and respondent no.6

that the wife of a Colonel of Indian Army was being harassed by the son of

the petitioner, whereas, in the counter affidavit filed by respondent no.6, it

has been stated that Rekha Singh Ganguli got herself transferred to a far

away place in the State of Jammu and Kashmir, which further suggests that

earlier the statements were made that the wife of the a Colonel is being

harassed and in paragraph 27 of the counter affidavit, it has been stated

that she has got herself transferred to Jammu and Kashmir, which suggest

that she was in Government job. There are contradictions of the status of

the victim and even where about of the said lady is not known to the

respondent-State in view of paragraph 27 of the counter affidavit filed by

respondent no.6. In paragraph 11 of the counter affidavit filed by

respondent no.6, the mobile number of Rekha Singh Ganguli has been

disclosed as 9204780385, whereas at Annexure-G of the counter affidavit of

respondent no.5, the fact is otherwise, which suggests that mobile number

is 9204980385.

11. Thus, it appears that without following the due process of law, all

things happened and if such a situation is there whether the High Court can

be a mute spectator when the things are brought before the Court i.e. the

question and answer is simply 'No' in view of the fact that the State cannot

have unrestricted access to inspect and seize or make roaming enquiry into

all things relating to a person without any reliable information before it prior

to such inspection. Search, taking of notes or extracts or seizure of the said

documents would amount to a breach of confidentiality and be violative of

privacy rights of a person if there is no cogent reason expressed or provided

in the affidavit and if it has been done, Articles 19(1)(a) and (d) and 21

comes into play and that was considered by the Hon'ble Supreme Court in

District Registrar and Collector, Hyderabad (supra).

12. Admittedly, till 14.02.2009, there was no order and no Sanha and in

spite of any FIR, the Officer-in-Charge was visiting the house of the

petitioner w.e.f. 10.02.2009 to 13.02.2009. There are contradictions of

deputing police officials. On the one hand, the order of this Court dated

14.08.2015 is not complied with by bringing on record the Command

Register/Guard Register, on the other hand in the counter affidavit of

respondent no.6, it has been stated that the Guards were removed. The

statement is further made that the said Register is missing. In a two room

house of the petitioner, the constables had been put therein. In view of that

any form of torture and cruel, inhuman or degrading treatment would fall

within the ambit of Article 21 of the Constitution of India and even it occurs

during investigation, interrogation or otherwise. The right to life of a citizen

cannot be put in abeyance on his arrest and there are line of judgments and

even the convicts under trial detenu or other prisoners, Article 21 of the

Constitution of India cannot be allowed to be violated.

13. In the case in hand, there is no allegation against the petitioner and

the allegation is against the son of the petitioner and in spite of that the

entire family has been harassed and their reputation has been put at stake.

If any violation of Article 21 of the Constitution of India is found by the

Court, the Court can pass appropriate order under public law remedy. This

is not a case that only son was harassed, but the entire family member has

been put to mental torture at the hand of none other than the protector of

the citizen of the district.

14. The judgment relied by Mr. Deepak Kumar Dubey, learned counsel for

the State is not in dispute. In the said PIL, the subject matter was eve-

teasing and no Court will allow to evade the investigation if such allegation

is there and that is why rightly that order has been passed. In the case of

Central Bureau of Investigation (supra) relied by Mr. Dubey, learned counsel

for the State, the High Court has quashed the FIR which was under

challenge and the Hon'ble Supreme Court looking into the facts of that case,

has come to the conclusion that the High Court has wrongly quashed the

FIR and after setting aside the order of the High Court, directed to continue

with the investigation. So far as these two judgments are concerned, those

are on different facts and circumstances and the same are not helping the

respondent-State.

15. In view of the above facts, reasons and analysis and taking note of

totality of the facts and circumstances, the Court directs to pay a sum of

Rs.50,000/- (Rupees Fifty Thousand) to the petitioner through the Home

Secretary, Government of Jharkhand, Ranchi within six weeks from the date

of receipt/production of a copy of this order.

16. Accordingly, this petition is disposed of.

17. Let the station diary be sent back to the concerned police station

forthwith.

(Sanjay Kumar Dwivedi, J.) Ajay/ A.F.R.