Madhya Pradesh High Court
Prosecutrix. (Minor) Thr. Her ... vs The State Of Madhya Pradesh on 23 June, 2021
Author: Gurpal Singh Ahluwalia
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : Justice G.S. Ahluwalia
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. and others
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Shri Anil Kumar Mishra, Counsel for the Petitioner
Shri M.P.S. Raghuvanshi, Add. Advocate General for the State with
Investigating Officer
Shri Amit Sanghi, Superintendent of Police, present for assisting the
Court
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Date of hearing : 17.06.2021
Date of order : . 23.06.2021
Whether approved for reporting : Yes
Case was Heard through Video Conferencing
Order
(Passed on 23/06/2021)
1. This petition under Article 226 of the Constitution of India has
been filed seeking the following relief(s) :-
7. Relief Sought :-
It is, therefore, most humbly prayed that the instant
petition may kindly be allowed and a writ of mandamus
and/or a suitable writ, order of direction in the nature of a
writ be issued against the respondents and following
relief(s) may kindly be granted :-
(I) The, respondent authorities may kindly be directed to
take punitive action against the responsible officers in the
interest of justice.
(II) That, respondent authorities may kindly be directed to
arrest the accused persons of the aforementioned crime
interest of justice.
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
(III) That, respondent authority may kindly be directed to
change Investigation Officer of the case, so the entire
investigation would be completed in fair and impartial
manner.
(IV) That, respondent authority may kindly be directed
to provide the protection to the prosecutrix and her entire
family members in the interest of justice.
Any other relief which this Hon'ble Court deems fit in the
facts and circumstances of the case same may kindly be
granted to the petitioner.
2. It is the case of the petitioner, that the prosecutrix has lodged
an F.I.R. in Crime No. 87/2021 for offence punishable under Sections
376, 506 of I.P.C. and under Section 3(2)(va), 3(1)(w)(ii) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, on the allegations that since 18-12-2020 She is living in
the house of Ganga Singh Bhadoria on rent. She is doing the
household work of Ganga Singh Bhadoria. On 31-1-2021 at about 8
P.M., Aditya Bhadoria (Grand son of Ganga Singh Bhadoria) and his
friend came to her room. She was raped by friend of Aditya
Bhadoria, whereas Aditya Bhadoria was keeping a watch. While
returning back, they extended a threat that in case if the matter is
reported, then She will have to face dire consequences. It is
submitted that F.I.R. was lodged on 31-1-2021 at about 23:50 and
thereafter, the prosecutrix was illegally detained and her parents
were also detained by the concerned police personals and the
prosecutrix and her parents were subjected to cruelty. Therefore, the
cousin brother of the prosecutrix filed a Habeas Corpus Petition
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
which was registered as W.P. No. 2571 of 2021 and was disposed of
vide order dated 9-2-2021 and the prosecutrix was permitted to go
with her parents. The prosecutrix was produced before the Court
below for recording of her statement under Section 164 of Cr.P.C.,
where also, She narrated the incident of beating. According to the
Adhar Card, since, the prosecutrix was minor, therefore, She was
deliberately sent to One Stop Center, Gwalior, though her parents
were present.
3. It is the case of the petitioner, that She (Prosecutrix) and her
parents were subject to harassment by the police and instead of
providing shelter to the prosecutrix, the police personals are
harassing her and her parents, thereby violating the fundamental
rights of the prosecutrix to live with dignity. Accordingly, the
petition has been filed seeking the above mentioned relief(s).
4. The respondents have filed their return. It is the claim of the
respondents that the investigation is going in a right direction in
proper manner and within the lines of law. Swift, speedy and proper
investigation is going on. Nothing as alleged in the writ petition is
being done by any of the Authority, investigating officer or any other
person against the prosecutrix or any other person. It is mentioned
that on 31-1-2021 at 9:40 P.M., a report was made to Dial 100 by
prosecutrix wherein She reported that two person came to her and
one of them committed rape on her. On 31-1-2021 itself, information
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
was received in the police station at 23:36 and the same was entered
in General Diary Reference at 23:50 and accordingly, F.I.R. was
lodged at 23:50. The mobile phone and Adhar Card of the
prosecutrix was recovered in which date of birth of the prosecutrix is
mentioned as 1-1-2007. Statement of prosecutrix was recorded and
was sent for medical examination along with lady Constable Ms.
Shivani Dubey. On the same date, Dr. Reena Saxena was informed
that the prosecutrix is minor and is aged about 15 years, therefore, in
absence of parents of the prosecutrix, the Doctor refused to carry out
her internal examination. A.S.I. Vishram Singh was sent to bring the
parents of the prosecutrix and the father of the prosecutrix, informed
that he has not met the prosecutrix for the last 2-3 years and refused
to give consent for her medical examination, as She was 19 years old.
The father of the prosecutrix also submitted a mark sheet of class 9 th
of the prosecutrix in which her date of birth was mentioned as 7-3-
2002. The admission register of the school was also summoned and
it was found that the date of birth of the prosecutrix is 7-3-2002 i.e.,
18 years and 10 months. Since, there was a discrepancy in the age of
the prosecutrix, therefore, Ms. Kirti Upadhyaya, was directed by
S.H.O. Police Station Morar Ajay Singh Pawar, to enquire as to why
the prosecutrix has disclosed her incorrect date of birth. Accordingly,
her statement was recorded once again, in which She informed that
she has lodged the F.I.R. in the pressure of Dharmendra Dhakad.
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
Accordingly, the statement of Dharmendra Dhakad was also recorded
who stated that the prosecutrix is the girl friend of his friend Shyamu
Sharma and the prosecutrix must have lodged the F.I.R. in the greed
of money. On the same day, the prosecutrix was sent to the Court of
J.M.F.C., Gwalior for recording of her statement under Section 164 of
Cr.P.C. She was got medically examined and the Doctor reported that
the prosecutrix has sustained eight simple injuries on various parts of
her body. The duration of these injuries was within 24 to 48 hours.
Aditya Bhadoria was searched but he was missing. Vaginal swab
draft was prepared on 12-2-2021 and was sent to Police Station
Morar for sending the same for F.S.L. examination. On 16-2-2021,
the accused persons were searched but they were not found. Again
on 18-2-2021, Aditya Bhadoria was searched but he was found
missing. On 24-2-2021, Aditya Bhadoria was searched but he was
missing. On 25-2-2021, the family members of Aditya Bhadoria
provided several documents to show that the allegations made against
Aditya Bhadoria are false and vexatious. They also gave
applications/representations to the Superintendent of Police, Gwalior
as well as Inspector General of Police, Gwalior. It is also mentioned
that a CD was also provided to show the presence of Sonu @
Sandeep in the Court premises. It is the case of the family members
of Aditya Bhadoria that Sonu @ Sandeep had allegedly murdered the
son of Ganga Singh Bhadoria, namely Sanjay Singh Bhadoria. It was
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
also claimed that since, Aditya Bhadoria and Ganga Singh Bhadoria
are the key witnesses in the case of murder of Sanjay Singh Bhadoria
therefore, it was claimed that in fact, Sonu @ Sandeep has cooked up
a false story of rape against Aditya Bhadoria. Accordingly, the
D.P.O. has been requested to provide the CCTV footage of the Court
premises. However, it was replied by the D.P.O., that there are only
two cameras in the Court premises and the footage can be obtained
by the permission of the District Judge. On 13-3-2021, on the basis
of DVD and DVR provided by Ganga Singh Bhadoria, the search of
Sanjay Nai was also carried out. Since, the family members of Aditya
Bhadoria are suspecting involvement of Shyamu Pandit and Sanjay
Nai, therefore endeavor is being made to trace them out. Call details
of the prosecutrix have also been obtained.
5. It is further claimed by the respondents, that since, the injuries
found on the body of the prosecutrix were not that of duration when
She was in the Police Station and therefore, the same cannot be
attributed to any police officer. After recording of her statement
under Section 164 of Cr.P.C., the prosecutrix was lodged in One Stop
Center, Gwalior. On 2-2-2021, the Doctor after medical examination
could not give any opinion, as to whether rape was committed on the
prosecutrix or not. On 4-2-2021, Ms. Priti Bhargav was instructed to
go to One Stop Center along with CSP Morar, where her statement
under Section 161 of Cr.P.C. was recorded in the presence of CSP
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
Morar, Manju Mishra and Vasundara Bela, employees of One Stop
Center. The One Stop Center did not give consent to take the
prosecutrix to the place of incident. On 5-2-2021, the Special Judge,
Gwalior, granted permission to take the prosecutrix to the place of
incident and the prosecutrix provided the torn cloths. The filing of
habeas corpus petition was also admitted in the return. It is further
claimed that since, the prosecutrix is more than 18 years of age,
therefore, offence under POCSO Act has not been registered.
6. It is claimed that all the rights of the prosecutrix have been
protected and the respondents are ready and willing to produce the
complete case diary, as and when demanded. The investigation is
going on in a most honest manner. No atrocity has been committed.
7. On 16-6-2021, this case was directed to be listed on 17-6-2021
at the top of the list.
8. The case was taken up at 10:30 A.M. The Superintendent of
Police, Gwalior, investigating officer were present in the office of
Add. Advocate General. Since, the original case diary was with Add.
Advocate General, therefore, he was requested to provide the same in
PDF format, and accordingly, at the request of Shri Raghuvanshi, the
case was directed to be called at 1:00 P.M. At 1:00 P.M., it was
submitted by Shri Raghuvanshi that since, the diary is voluminous,
therefore, he may be permitted to sent the physical case diary.
Accordingly, Shri Raghuvanshi was directed to send the complete
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
case diary along with the proceedings recorded by the Police, and the
matter was directed to be called at 3:30 P.M. Shri Amit Sanghi,
Superintendent of Police, who was present in the office of Add.
Advocate General was asked that he may join the Court proceedings
from his office, through Video Conferencing.
9. Accordingly, the case was called at 3:30 P.M. and the hearing
continued till 8:00 P.M.
10. During the course of arguments, it was found that the police
has sent only two parts of police case diary and has not sent the
papers containing the action taken by the police. When this fact was
pointed out to Shri Raghuvanshi, then initially it was submitted that
complete case diary has been sent, but on repeated request by the
Court, the Investigating Officer, admitted that the part of the case
diary which contains the proceedings, maintained as per the
provisions of Regulation 742 of Police Regulations has not been sent.
When this Court expressed its displeasure on suppressing the material
documents, then the diary containing the proceedings of investigation
was also sent in a sealed cover.
11. Be that as it may.
12. During the Course of arguments, it was revealed that when the
prosecutrix informed the J.M.F.C., Gwalior about beating by the
police, then the J.M.F.C., Gwalior, immediately brought this fact to
the knowledge of the C.J.M., Gwalior who called the C.S.P., Gwalior
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
in Court and instructed to change the investigating officer and to send
the prosecutrix to a secured place. There was no direction to send the
prosecutrix to One Stop Center. However, the C.S.P., Morar, on his
own, sent the prosecutrix to One Stop Center instead of sending her
to the house of her parents. This conduct of C.S.P. Morar, shall be
considered in the later part of the order.
13. During the Course of arguments, C.S.P., Morar also joined the
Superintendent of Police, Gwalior. During the course of arguments,
it was pointed out by Superintendent of Police, Gwalior, that Add.
S.P., (East) is conducting an enquiry into the allegations of beating of
prosecutrix in the police station, and the enquiry report is expected to
be received within 3 to 4 days. However, looking to the controversy
involved in the matter, the Superintendent of Police, Gwalior was
directed to provide the complete file of Add. S.P. (East) regarding the
enquiry. Although the Superintendent of Police, Gwalior was
hesitant in providing the record on the pretext that the enquiry report
is expected to be received within 3-4 days, but later on provided the
file of Add. S.P. (East) in a sealed letter. Since, the prosecutrix had
firstly informed the Dial 100 about the incident, and She was taken to
Police Station by Dial 100, therefore, the relevant record of Dial 100
was also provided by the Superintendent of Police, in a sealed cover.
During the course of arguments, it was also found that the statements
of the witnesses have also been videographed, therefore, the Add.
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
Advocate General was directed to point out the Compact Disc
containing the statements of the witnesses. It was pointed out by Shri
Raghuvanshi, that the Pen drive/compact disc containing the
videography of statements of witnesses is not in the police case diary
and accordingly, sought some time to obtain the same from the lady
constable who had recorded the same. Later on, a pen drive
containing the videography of three statements of Prosecutrix, father
of the prosecutrix, Dharmendra Dhakad was sent in a sealed cover by
Shri Raghuvanshi, Add. Advocate General. During the course of
arguments, it was pointed out by Shri Raghuvanshi, that he is not in
possession of Rojnamcha Sanhas of Crime No. 87/2021 (present
case). Accordingly, he was directed to supply the same. However,
the same were not sent immediately, but on repeated reminders by the
Reader of this Court, the Rojnamcha Sanhas of Police Station Morar
were made available which contains only a part of investigation, but
the Rojnmacha Sanhas of Police Station Sirol were not made
available. It is not out of place to mention here that under the orders
of the C.J.M., Gwalior, the investigating officer was changed and
Smt. Priti Bhargava, S.H.O., Police Station Sirol, Distt. Gwalior was
handed over investigation. Thus, this Court is not in possession of
the Rojnamcha Sanhas of investigation which was done from 3-2-
2021 onwards. Be that as it may be.
14. The controversy involved in the present case is that whether
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
the police is conducting the investigation in a free and fair manner or
not?
15. Before considering the facts of the case, this Court thinks it
apposite to consider the scope of interference by this Court at the
stage of investigation.
16. The Supreme Court in the case of Manohar Lal Sharma Vs.
Union of India and others reported in (2014) 2 SCC 532 has held as
under :
24. In the criminal justice system the investigation of an
offence is the domain of the police. The power to
investigate into the cognizable offences by the police officer
is ordinarily not impinged by any fetters. However, such
power has to be exercised consistent with the statutory
provisions and for legitimate purpose. The courts ordinarily
do not interfere in the matters of investigation by police,
particularly, when the facts and circumstances do not
indicate that the investigating officer is not functioning
bona fide. In very exceptional cases, however, where the
court finds that the police officer has exercised his
investigatory powers in breach of the statutory provision
putting the personal liberty and/or the property of the
citizen in jeopardy by illegal and improper use of the power
or there is abuse of the investigatory power and process by
the police officer or the investigation by the police is found
to be not bona fide or the investigation is tainted with
animosity, the court may intervene to protect the personal
and/or property rights of the citizens.
* * *
38. The monitoring of investigations/inquiries by the Court
is intended to ensure that proper progress takes place
without directing or channelling the mode or manner of
investigation. The whole idea is to retain public confidence
in the impartial inquiry/investigation into the alleged crime;
that inquiry/investigation into every accusation is made on a
reasonable basis irrespective of the position and status of
that person and the inquiry/investigation is taken to the
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
logical conclusion in accordance with law. The monitoring
by the Court aims to lend credence to the
inquiry/investigation being conducted by CBI as premier
investigating agency and to eliminate any impression of
bias, lack of fairness and objectivity therein.
39. However, the investigation/inquiry monitored by the
court does not mean that the court supervises such
investigation/inquiry. To supervise would mean to observe
and direct the execution of a task whereas to monitor would
only mean to maintain surveillance. The concern and
interest of the court in such "Court-directed" or "Court-
monitored" cases is that there is no undue delay in the
investigation, and the investigation is conducted in a free
and fair manner with no external interference. In such a
process, the people acquainted with facts and circumstances
of the case would also have a sense of security and they
would cooperate with the investigation given that the
superior courts are seized of the matter. We find that in
some cases, the expression "Court-monitored" has been
interchangeably used with "Court-supervised
investigation". Once the court supervises an investigation,
there is hardly anything left in the trial. Under the Code, the
investigating officer is only to form an opinion and it is for
the court to ultimately try the case based on the opinion
formed by the investigating officer and see whether any
offence has been made out. If a superior court supervises
the investigation and thus facilitates the formulation of such
opinion in the form of a report under Section 173(2) of the
Code, it will be difficult if not impossible for the trial court
to not be influenced or bound by such opinion. Then trial
becomes a farce. Therefore, supervision of investigation by
any court is a contradiction in terms. The Code does not
envisage such a procedure, and it cannot either. In the rare
and compelling circumstances referred to above, the
superior courts may monitor an investigation to ensure that
the investigating agency conducts the investigation in a
free, fair and time-bound manner without any external
interference.
* * *
61. At the outset, one must appreciate that a constitutional
court monitors an investigation by the State police or the
Central Bureau of Investigation (for short "CBI") only and
only in public interest. That is the leitmotif of a
constitutional Court-monitored investigation. No
constitutional court "desires" to monitor an inquiry or an
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
investigation (compendiously referred to hereinafter as "an
investigation") nor does it encourage the monitoring of any
investigation by a police authority, be it the State police or
CBI. Public interest is the sole consideration and a
constitutional court monitors an investigation only when
circumstances compel it to do so, such as (illustratively) a
lack of enthusiasm by the investigating officer or agency
(due to "pressures" on it) in conducting a proper
investigation, or a lack of enthusiasm by the Government
concerned in assisting the investigating authority to arrive at
the truth, or a lack of interest by the investigating authority
or the Government concerned to take the investigation to its
logical conclusion for whatever reason, or in extreme cases,
to hinder the investigation.
17. Thus, it is clear that this Court in exercise of its power under
Article 226 of Constitution of India, cannot supervise the
investigation, but can certainly monitor the investigation, in order to
find out as to whether the investigation is being done properly or not.
At the beginning of the arguments itself, it was made clear to the
Counsel for both the parties, that this Court will be confining itself to
the manner in which the police is conducting the investigation and
this Court will not touch any opinion, formed by the police so far, as
it may amount to "Supervision". Therefore, the Counsel for the
parties, have argued the case in the light of the limited scope of
interference by this Court.
FACTS OF THE CASE
18. On 31-1-2021 at 23:50, F.I.R. in crime No. 87 of 2021 was
registered at Police Station Morar, Distt. Gwalior, although the
information in the police station was already received at 23:36. As
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
per the F.I.R., the prosecutrix disclosed her age as 15 years and
alleged that from 18-12-2020, she is residing in the house of Ganga
Singh Bhadoria on rent and is doing the work of dusting and
mopping. At about 8 P.M., Aditya Bhadoria and his friend came to
her rented premises and pushed her. The boy accompanying Aditya
Bhadoria committed rape on her and Aditya was standing there.
While going back, they extended a threat that in case if the incident is
narrated to any body then She will be killed.
19. On 31-1-2021 at 11:55 P.M., the mobile phone of the
prosecutrix, and her duplicate Adhar Card were seized. The
statement of prosecutrix under Section 161 of Cr.P.C. was recorded
on 31-1-2021 itself, in which She had repeated the allegations made
in the F.I.R.
20. On 31/1/2021, the prosecutrix was sent for medical
examination along with the application for medical examination. It is
important to mention here that in the application for medical
examination, there was no reference of any injuries on the body of the
prosecutrix. On 1-2-2021, Dr. Reena Saxena mentioned that since,
the girl has disclosed her age as 15 years and her parents are not
accompanying her, therefore, She cannot carry out her internal
examination. As per the Out Patient Record, the date and time of
registration is 1-2-2021 at 12:26:43. The police case diary also
contains the format of medical examination, according to which Dr.
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
Reena Saxena refused to carry out internal examination of the
prosecutrix at 2:20 A.M. (in the night) on 1-2-2021.
21. On 1-2-2021, the prosecutrix was produced before the Court of
J.M.F.C., Gwalior for examination of her statement under Section 164
of Cr.P.C. which reads as under :
01- /kVuk fnuakd 31-01-2021 dh jkr ds 8%00 cts dh gSA eS vius /kj ij
fdfpu es [kkuk cuk jgh FkhA eSa xaxk flag HkBkSfj;k ds edku es fdjk, ls
jgrh gwa rHkh njokts ij fdlh us [kV[kVk;k rks eSus njoktk [kksydj ns[kk
rks ogka xaxkflag HknkSfj;k dk ukrh vkfnR; ,oa mlds lkFk dksbZ yMdk
vk;k Fkk fQj vkfnR; ds lkFk tks yMdk vk;k Fkk mlus eq>s /kj es vanj
dh rjQ /kDdk fn;k] fQj nksuks yksx vanj vk x, vkSj njokts dh dqaMh
yxk nh FkhA vkfnR; us esjk eqag cka/k fn;k vkSj esjs nksuks gkFk idM fy,
fQj nwljs yMds us esjs diMs QkM fn, vkSj mlus esjk cykRdkj fd;k] fQj
eSus nwljs yMds ds is'kkc dh txg ij ykr ekjh rks og gV x;kA eSus
ekSdk feyrs gh vkfnR; HkS;k dks Hkh /kDdk ns fn;k Fkk vkSj fQj tc eSus
xaxk falg vady dks vkokt yxkbZ rks og ogka ij vk x,A mUgksus xsV es
/kDdk fn;k rks xsV dh dqaMh [kqy xbZ Fkh brus es nwljk yMdk nwljs njokts
ls Hkkx x;k FkkA mlds ckn xaxkflag vady us njoktk can dj fn;k Fkk
D;ksafd vkfnR; us /kVuk ds nkSjku viuk iasV mrkj fn;k FkkA xaxkflag vady
vkfnR; dks ckgj ys x, vkSj fQj eSus vanj ls njoktk yxk fy;k Fkk ckgj
ls xaxkflag vady cksuys yxs fd " lqu pefj;k rwus vxj fdlh ls cksyk rks
rq>sa tku ls ejok nsaxas" eS cgqr /kcjk xbZ Fkh rks eSus 100 uacj Mk;y dj
fn;k Fkk fQj iqfyl ogka vk xbZ Fkh vkSj eq>s eqjkj Fkkus ysdj xbZ FkhA Fkkus
ij esjs c;ku fy, FksA fQj eq>s cgqr nsj Fkkus ij fcBk;k vkSj yxHkx 11%50
ij esjh ,QvkbZvkj ntZ dh Fkh] fQj eq>s esfMdy ds ysdj x, ij esjh
vk/kkj dkMZ es mez 15 lky gksus dh otg ls esjs ekrk firk dh vuqifzLFkfr
es esjk esfMdy ugh gks ik;k FkkA fQj eq>s Fkkus okfil yk, vkSj jkrHkj
Fkkus ij j[kk FkkA lqcg ds le; esjs firkth Fkkus ij vk x, FksA
02- mlds ckn Vh-vkbZ- lj us xaxkflag HknkSfj;k dks cqyk;k Fkk
vkSj fQj ls c;ku fy, fkS og eq>ls dg jgs Fks fd xaxkflg
HknkSfj;k rks cgqr gh lh?ks balku gS rqe muds f[kykQ fjiksZV D;k
dj jgs gks vkSj eq>ls cksyus yxk fd og rks Qkalh yxkdj ej
tk;sxaA Fkkus ij lc eq>s cksy jgs Fks fd rqe >wB cksy jgh gks fQj
eSus cksyk Fkk fd eS 19 lky dh gwa vkSj vxj ;fn ;dhu ugh gS rks
esjk esfMdy djok yksA fQj eq>s ,d iqfyl okyh ysdj xbZ vkSj
eq>s cgqr ekjk Fkk] fQj eq>s mij okys gk~y es ysdj x;s Fks ogka
6&7 iqfyl okyh Fkh mUgksus eq>s iV~Vs ls ekjk Fkk] ftlls eq>s iwjs
'kjhj ij pksVas vkbZ gSA mlds ckn og eq>s uhps ysdj vk x, Fks
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
vkSj fQj ls c;ku djkuk 'qk: fd,A og yksx eq>ls cksy jgs Fks fd
rqe vius c;ku es ,slk cksyks fd rqeus iSlksa ds fy, >wBk dsl fd;k
gSA fQj mu yksxksa us ekj ekj dj >wBs c;ku cqyok, Fks vkSj >wBs
c;ku dh ohMh;ks fjdkfMZx dj yh FkhA mlds ckn og yksx nqckjk
eq>s mij ys x, vkSj mYVk Vkaxdj ekjus yxs vkSj ogka ij iq: "k
iqfyl okys Hkh Fks mu yksxks us Hkh esjs lkFk ekjihV dhA mlds ckn
Vh vkbZ lj ds vkfQl ys x, vkSj Vh vkbZ lj eq>s cksyus yxs fd
rqe dksVZ es tkdj Hkh ogh c;ku nsuk fd iSlksa ds fy, rqeus >wBh
fjiksZV dh gS vkSj vxj rqeus ,slk c;ku ugh fn;k rks rqe okfil
Fkkus gh ykSVdj vkvksxh fQj rqEgs mYVk yVdk;saxs vkSj pkgs rqe ej
Hkh tkvks rc Hkh rqEgs ugh mrkjsxsA mlds ckn eq>s dksVZ c;ku ds
fy, ysdj vk, FksA ;gh esjs dFku gSA
22. In view of the allegations made by the prosecutrix, the
J.M.F.C., Gwalior, immediately brought this fact to the knowledge of
the C.J.M., Gwalior, who also verified the allegations of beating from
the prosecutrix, who once again alleged that She was beaten by the
Police and accordingly, C.S.P. Morar, Gwalior was called in the Court
and was directed to take custody of the prosecutrix and was also
directed to get the prosecutrix medically examined under his
supervision and was further directed to keep the prosecutrix in a
secured place. The C.S.P., Morar was also directed to inform the
senior police officers. The copy of the order passed by C.J.M.,
Gwalior is in the police case diary.
23. Thereafter, the prosecutrix was sent for medical examination.
For the first time, the police in its requisition for medical
examination, wrote that the prosecutrix is alleging that She has
suffered injuries on her wrist, thighs of both legs, waist, knees and
back. In medical examination, the Doctor found 8 contusions on the
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
body of the prosecutrix. This medical was conducted on 1-2-2021 at
7:45 P.M. However, the detailed examination of the prosecutrix was
not conducted, and accordingly, She was again sent for medical
examination, but according to the police, the prosecutrix refused to
undergo her internal examination. Although in the case diary, there is
no proceeding of 2-2-2021, but the case diary contains on more
medical certificate of the prosecutrix which was conducted on 2-2-
2021 at 09:30 P.M.. The Doctor has described the injuries as under :
"Multiple bruises on B/L thigh and tenderness caused by Hard and
blunt object.
In column 15E of format it is written Bruises and swelling on B/L
thigh.
In column 16 of format it is written as Bruising & Swelling on B/L
thigh and face (Lt. Side) is seen.
In column 17 of format it is written as tenderness on left cheek bone,
Mild tenderness behind the ears, and B/L thighs bruising with
tenderness.
The prosecutrix was referred to Orthopedician for further evaluation
and management (B/L bruising and tenderness present)
However, there is nothing in the police case diary to indicate that the
prosecutrix was ever referred to Orthopedician for treatment of the
prosecutrix.
Before proceeding further, it is necessary to find out as to
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
whether the Investigating Officer has written case diary in
accordance with Police Regulations or not?
24. Police Regulation No. 742 reads as under :
742.Case diary how written - The manner in which the case
diary should be written is indicated in the following
institutions:-
(a)The diary should commence with a brief statement of the
circumstances under which the complaint was lodged and
should be followed with a verbatim copy of the complaint.
All relevant facts discovered by questioning witnesses, or
by personal research, all places visited and all measures
taken from time to time by the investigating officer should
be noted in the diary. The time at which the diary is
commenced and the time when any particular action, such
as arrest, search of a house, sending for an accused or
witness, is taken should be regarded simultaneously with
the setting down of the fact itself.
(b)The case diary should show as concisely and clearly as
possible what has been ascertained day by day and should
not consist of a series of depositions of witnesses examined
by the investigating officer. The recording of the statement
of a witness in deposition form is not obligatory (Section
161, Criminal Procedure Code). And should only be
resorted to in the case of witnesses on the details of whose
evidence much depends. Thus, should there be a question of
the identification of an offender, the statements of the
witnesses to such identification should be fully and
carefully recorded. Again, in serious cases, it is, as a rule,
desirable to take down the whole statement of every person
who gives important information-especially every person
who, from the circumstances of the case, ought to know
something about it. For instance, when a person has been
murdered at night in a house where other persons also liver,
the statements of those other persons should be recorded in
full.
(c)Signing of a statement recorded - The only
circumstances in which a statement taken down in writing
by a police officer making an investigation is to be signed
by the person making it are when the deponent is in a
moribund condition and the statement is practically a dying
declaration. If a magistrate is near at hand, and the
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
declaration is one that in the event of the deceased's death
would be relevant under Section 32 of the Indian Evidence
Act, the magistrate should be asked to attend and record the
statement of a dying person, in accordance with the
provisions of Section 164, Criminal Procedure Code.
If the attendance of a magistrate cannot be secured, without
the risk of such person's death before his statement can be
recorded, the investigating officer will record the dying
declaration in accordance with the following instructions:-
(1)If possible, such person shall be examined by a medical
officer with a view to ascertaining that he is sufficiently in
possession of his reason to make a credible statement.
(2)Such statement shall be recorded in the presence of two
or more credible witnesses unconnected with the police
department. If such credible witness cannot be obtained
without risk of such person's death before his statement can
be recorded, it will be recorded in the presence of one or
more police officers. This rule does not apply when a
gazetted officer is present.
(3)If any person is accused by the dependent of having been
concerned in the transaction which threatens to result in his
death, such person should be allowed to be present if he
wishes while statement is being taken down.
(4)The statement must be headed with declarant's name,
father's name, caste and residence and should consist of
questions and answers. The answers must be taken down
from the declarant'slips word for word exactly as he utters
them, and must not be afterwards added to or corrected in
any way. The date and time of recording the statement must
be recorded and the statement must be signed or otherwise
attested by the deponent, the recording officer and the
witnesses. A court will not place any confidence in a dying
declaration which has been reduced to writing after it has
been made, or which has been recorded in the words of the
recording officer and not in those of the declarant himself.
25. Thus, from plain reading of Regulation 742(a) of M.P. Police
Regulations, it is clear that while writing case diary, the investigating
officer has to write the time of every action.
26. But, in the present case, the case diary has been written in a
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
most casual manner and contrary to the provisions of Regulation 742
of M.P. Police Regulations. In the entire case diary, the timings of
every action taken by the investigating officer has not been
mentioned. Therefore, it is clear that the case diary has not been
maintained as per Regulation 742 of M.P. Police Regulations.
27. The case diary started from 31-1-2021, in which it is
mentioned that the F.I.R. was lodged at 23:36, whereas in the F.I.R.,
the time of lodging F.I.R. is 23:50. The case diary was written on 1-
2-2021 but the time is not mentioned. This Court is conscious of
provisions of Section 172 of Cr.P.C., therefore, would not refer the
diary proceedings in detail. But important aspects would be reflected
in the order. It is mentioned in the case diary proceedings that F.I.R.
has been lodged and information has been given to the Senior
Officers and copy of F.I.R. is being send to Magistrate. Thereafter,
the fact of seizure of Mobile and Duplicate Adhar card is mentioned.
It is also mentioned that Sub-Inspector Kirti Upadhyaya has recorded
the statement of the prosecutrix under Section 161 of Cr.P.C, which
was videographed by Lady Constable Manisha Jadon. It is also
mentioned that the C.D. Of Videography is prepared and is kept in
Case diary, but as already pointed out, the Compact Disc of
Videography was not found in the case diary. Thereafter, there is a
reference of sending the prosecutrix for medical examination and
refusal by the Doctor due to the fact that the prosecutrix claims to be
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
minor and is not accompanied by their parents. Father of the
prosecutrix was summoned through A.S.I. Vishram Singh. Father of
the prosecutrix informed that the prosecutrix is not in touch with him
for the last 2-3 years and he has nothing to do with the prosecutrix. It
was also mentioned that he has refused to give consent for her
medical examination, because She is major. He also informed, that
he is in possession of marksheets of prosecutrix and photcopy of the
same were produced. The Caste Certificate was also included in the
case diary. It was also mentioned that Sub-Inspector Kirti Upadhyaya
was directed to interrogate the prosecutrix as to why She disclosed
her incorrect age. Sub-Inspector Kirti Upadhyaya informed on
telephone that the prosecutrix has admitted that She has lodged the
report under pressure of one Dharmendra Dhakad, however, the
prosecutrix has refused to undergo medical examination, and her
father has refused to give consent. It is also mentioned that the
prosecutrix has informed that in fact She was raped by Dharmendra
Dhakad. Accordingly, the prosecutrix was taken to the house of
Dharmendra Dhakad. Dharmendra Dhakad denied the charges and
has stated that the prosecutrix might be alleging against him for want
of money. Thereafter, the prosecutrix was once again interrogated in
front of Dharmendra Dhakad, and then She resiled from her second
statement and claimed that She was raped by one Hanif. Accordingly,
the supplementary statement of the prosecutrix was recorded and the
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
same was videographed. Thereafter the prosecutrix was sent to Court
for her statement under Section 164 of Cr.P.C. and at the time of
departure, the prosecutrix was saying that in fact She has been raped
by Rahul Sharma. The mobile of Dharmendra Dhakad was seized.
The lady Constable Pratibha Kushwaha informed that when She
reached the Court, then the J.M.F.C., Gwalior refused to record the
statement under Section 164 of Cr.P.C. When the constable came out
of the chamber of J.M.F.C., then 5-6 person surrounded the Constable
and the prosecutrix and one lawyer tried to take away the prosecutrix.
The unknown persons were saying that since, they have given money
to the prosecutrix, therefore, She has to give statement. Thereafter,
the Advocate took the prosecutrix inside the Court of J.M.F.C.. It is
also mentioned that the Advocate and the prosecutrix were inside the
Chamber of the J.M.F.C. Thereafter, She received the copy of the
statement recorded under Section 164 of Cr.P.C. in sealed cover.
Thereafter, on the instructions of C.J.M., the C.S.P., Morar reached
the Court and the prosecutrix was taken for medical examination.
After She came back, the C.S.P., Morar stated that since, the
prosecutrix has not been examined from rape point of view, therefore,
She should be taken again for medical examination. Again the
prosecutrix refused to give her consent for medical examination.
Thereafter, again she came back to the office of C.S.P., who
instructed her to leave the prosecutrix in One Stop Center and
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
accordingly, the CORONA test of the prosecutrix was got done and
she was left in One Stop Center. It is also mentioned that Court
Munshi had also informed the I.O., that Sonu @ Sandeep who is an
accused in Crime No. 750/17 is also in the Court and is pressurizing
the prosecutrix and he is being assisted by Govt. Pleader O.P.
Sharma. Accordingly Constable Satendra Chouhan was directed to
record the incident. However, before the incident could be recorded,
Sonu @ Sandeep went away. It is also mentioned that Constable
Satendra had informed that either Sonu or Govt. Pleader O.P. Sharma
has informed him that false case has been registered in order to put
pressure in the murder case.
28. It is also mentioned in the case diary proceedings that Ganga
Singh Bhadoria was called in the Police Station who informed that he
had let out the room at the monthly rent of Rs. 3500/-. He also
informed that if some body had come to his house, then it must have
got recorded in CCTV camera installed in his house. Therefore, he
was directed to see the CCTV footage.
29. Thus, it is clear that on 1-2-2021, Ganga Singh Bhadoria was
in the Police Station, and the case diary doesnot contain copy of any
notice sent to Ganga Singh Bhadoria, thereby requiring him to come
to Police Station. However, in her statement recorded under Section
164 of Cr.P.C., the prosecutrix has specifically stated that the T.I. had
called Ganga Singh Bhadoria. Thus, it is clear that the police had
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
called Ganga Singh Bhadoria in the police station immediately after
the F.I.R. was lodged.
Whether prosecutrix had made any allegation against Ganga
Singh Bhadoria in her statement recorded under Section 161 of
Cr.P.C. on 31-1-2021.
30. The police case diary contains the statement of the prosecutrix
which was recorded on 31-1-2021 and in the statement, no allegation
against Ganga Singh Bhadoria is mentioned. However, in her
statement under Section 164 of Cr.P.C., the prosecutrix has stated that
after She raised an alarm, Ganga Singh Bhadoria also came on the
spot and closed the door and by calling her by Caste name, threatened
her not to disclose the incident to any body, otherwise, She will have
to face dire consequences.
The moot question is that whether Sub-Inspector Kirti
Upadhyaya had rightly recorded the statement of the prosecutrix
on 31-1-2021 or has manipulated the same by not mentioning the
allegations against Ganga Singh Bhadoria.
31. The statement of the prosecutrix was also videographed and
the same has been provided in a Pen Drive. This Court has seen the
video clipping. In the said statement, the prosecutrix has specifically
leveled allegations against Ganga Singh Bhadoria. It has been stated
by the prosecutrix that after kicking the rapist, She raised an alarm.
Ganga Singh Bhadoria came there and thereafter the boy who had
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
committed rape ran away. Ganga Singh Bhadoria also scolded Aditya
that "what has been done by him" and thereafter locked the door.
Thereafter, by calling her by Caste Name, threatened that in case if
the prosecutrix tells to anybody then She will be killed. For the
reasons best known to Sub-Inspector Kirti Upadhyaya, the allegations
made against Ganga Singh Bhadoria were not mentioned in the
statement of the prosecutrix, but even Ganga Singh Bhadoria was
also called in the police station and was allowed to go away. Further
from the video clipping it is clear that Sub-Inspector Kirti Upadhyaya
was simply interrogating the prosecutrix and was not writing her
statement.
32. Police Headquarter, State of Madhya Pradesh has issued
circular No. File No.1-01/Pu.Mu./Ati.M.N./Ni.S/Parpatra/45/2019/
dated 7-3-2019 which deals with guidelines for investigation in the
matters of rape. Clause (5) of above mentioned circular reads as
under :
(5) ihfMrk ,oa xokgks ds dFku mlds le{k gh mlls iwNdj
fy[ks tk;s vkSj ,sls dFku [email protected] ohfM;ks dSejs ds lkeus
bl izdkj fy[ks tkos fd dSejk Qzes es foospd] xokg ,oa
nLrkost ftls fy[kk tk jgk gS Li"V fn[kkbZ nsaA ;gh izfdz;k
tIrh] fxjQ~rkjh i=d ,oa vU; lHkh nLrkostksa ds fo"k; es
viukbZ tkos ftles ihfMrk ;k fdlh Hkh lk{kh ds gLrk{kj fy[ks
tkus gksA
33. From the video clipping of statement under Section 161 of
Cr.P.C. recorded on 31-1-2021, it is clear that Sub-Inspector Kirti
Upadhyaya was not reducing her statement in writing and was simply
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
asking questions. Thus, the manner of video recording of statement
of the prosecutrix was also not in accordance with circulars issued by
the Police Head Quarter.
34. Thus, it is clear that Sub-Inspector Kirti Upadhyaya has
manipulated the statement of the prosecutrix, and has written her
statement as per her wishes. Therefore, it is clear that right from the
very beginning, the police had started manipulating the things.
35. On the instructions of the Court, the Superintendent of Police,
Gwalior has provided the record of FRV dial 100. This document
was made available on 18-6-2021 i.e., on the next day of hearing as
the record was to be summoned from Bhopal.
36. From the Event record of FRV, it is clear that on 31-1-2021, at
20:29:09, the prosecutrix called Dial 100 and informed about rape. In
the initial information given to Dial 100, it was alleged that Aditya
Bhadoria has raped her and has locked her inside the room. After
various attempts to send SMS to PS Morar, C.S.P Morar and FRV, the
information to FRV Unit Gwl 43 was given at 20:30:35 on 31-1-
2021. At 20:32:33, information was given to S.H.O., P.S. Morar on
his mobile, C.S.P., Morar was also informed at 20:35:30. SMSs were
successfully sent to Mobile No. 8085188394, 7587612701,
7587600013, 9425964313 and 947993002. At 20:36:53, information
was given to CSP Morar. The phone of M.2 (Most Probably Add.
S.P.) was busy. The ASP was thereafter informed at 20:46:28, who
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
informed that Morar area doesnot fall within his jurisdiction.
Information was given to M.2 (Most Probably Add. S.P. are called as
M.2). At 20:51:48, FRV informed that they have reached on the
place of incident. FRV gave further information that the complainant
has been brought to Police Station at 21:04:49 and the event was
closed at 21:41:48.
37. Thus, it is clear that the S.H.O., Police Station Morar Ajay
Singh Pawar, C.S.P., Morar, M.2 were already informed about the
incident by head quarter of dial 100 at 20:32:33. Thus, when the
complainant reached police station on FRV Dial 100, the police was
already aware of the incident. Therefore, the police had ample time
to manipulate the things, and therefore, the Sub-Inspector Kirti
Upadhaya deliberately omitted the allegations against Ganga Singh
Bhadoria in the statement of the prosecutrix recorded under Section
161 of Cr.P.C. Since, no information was given by Dial 100 to Sub-
Inspector Kirti Upadhyaya, but information of incident was given to
S.H.O., Police Station Morar, Ajay Singh Pawar, C.S.P. Morar and
M.2, therefore, it is clear that Sub-Inspector Kirti Upadhyaya must
have been instructed by any of the above mentioned three officers.
38. Thus, it is clear that for the reasons best known to S.H.O.,
Police Station Morar, Ajay Singh Pawar, C.S.P., Morar and M.2, the
things had already started working against the prosecutrix.
Whether allegations made against Ganga Singh Bhadoria in
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
videographed statement of prosecutrix discloses commission of
any offence
39. It is the allegation of the prosecutrix that, after locking her
inside the room, Ganga Singh Bhadoria shouted from outside and by
calling her by her caste name, threatened her not to disclose the
incident to any body, otherwise, She will be killed.
40. It is clear that when the prosecutrix was humiliated and
insulted by calling her by her caste name, Ganga Singh Bhadoria was
outside the house, whereas the prosecutrix was inside the house.
Thus, it is clear that Ganga Singh Bhadoria was in a place which was
withing public view. Thus, it is clear that prima facie offence under
Section 3(1)(r),(s) of SC/ST (Prevention of Atrocities) Act, 1989 is
made out. Further, by extending threat to kill her, Ganga Singh
Bhadoria had also prima facie committed the offence of intimidation
under Section 506 Part 2 of I.P.C.
Whether the F.I.R. was lodged promptly or the prosecutrix was
made to wait in the Police Station.
41. The prosecutrix has alleged in her statement under Section 164
of Cr.P.C., that when She reached police station, She was made to
wait for long time and only thereafter, her F.I.R. was lodged.
42. If the record of F.R.V. Unit 43 Gwl is considered, then it is
clear that the prosecutrix was left in the Police Station Morar by
F.R.V., at 21:04:09, whereas the F.I.R. was lodged at 23:50 i.e., after
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
approximately 3 hours. It is mentioned in the F.I.R., that the
information of incident was received in police station at 23:36,
whereas the headquarter of Dial 100 had already informed the S.H.O.,
Police Station Morar, Ajay Singh Pawar, C.S.P., Morar and M.2 at
about 22:32:33. Further more, the prosecutrix had already reached
the Police Station at 21:04:09. Thus, it is clear that the police
deliberately did not lodge the F.I.R., and compelled the prosecutrix to
wait in the police station for approximately for 3 hours in the night.
43. Thus, it is clear that the F.I.R. was not lodged promptly and all
efforts were made by the police to harass the prosecutrix with an
oblique motive. The fact that Ganga Singh Bhadoria was also called
in the Police Station to put forward his defence, clearly indicates the
reason as to why police officers were harassing and humiliating the
prosecutrix. Not only that, the police had also manipulated the
official record i.e., statement of prosecutrix recorded under Section
161 of Cr.P.C.
Whether the prosecutrix had any injury on her body at the time
of her Medical Examination on 1-2-2021 at 2:20 A.M.?
44. According to police case diary, the prosecutrix was sent for
medical examination. Requisition form for her medical examination
which was prepared on 1-2-2021 i.e., intervening night of 31-1-2021
and 1-2-2021 is also in the case diary. It is mentioned in the
requisition form as under :
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
Qfj- (Name is not being mentioned in order to maintain her
privacy) dk mDr izksQkekZ es cykRdkj lac/a kh esfMdy ijh{k.k
dj lk{; fiztoZ dj nsus dh d`ik djs
uksV vU; dksbZ vfHker tks vfHk;kstu dhs n`f"V ls egRoiw.kZ gks
nsus dh d`ik djsA
45. There is no mention of any injuries on the body of the
prosecutrix. Further, the case diary contains the printed format of
medical examination. The columns for description of injuries are
blank. The printed prescription contains the following remark of the
Doctor :
yMdh viuh mez 15 lky crkrh gS A mlds vfHkHkkod vHkh
mifLFkr ugh gS A vr% eS mldk vkarfjd ifj{k.k ugh dj
ldrhA
46. The above mentioned note reveals that the Doctor had refused
to conduct the internal examination of the prosecutrix in absence of
her parents, but for medical examination of the body of the
prosecutrix in order to find out any external injury except on private
part, no consent was required. Had the Doctor found any injury on
the body of the prosecutrix (Except Private Part), then She would
have certainly mentioned the same in her medical report. Thus, it is
clear that on 1-2-2021 at the time of examination of the prosecutrix
by the Doctor Reena Saxena, the prosecutrix did not have any injury
on her body.
47. Further, the statement of the prosecutrix recorded under
Section 161 of Cr.P.C. on 31-1-2021 was also videographed, and
apparently no injury is visible on her face (This should not be treated
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
as finding and it is a matter of enquiry/investigation/trial). There is
no mention of any injury in the case diary. Thus, it is clear that on
31-1-2021, when the prosecutrix came to Police Station, there was no
injury on her body.
Whether the prosecutrix was kept in the police station after her
medical examination?
48. On 1-2-2021 at 2:20 A.M. in the night, the Doctor had seen the
prosecutrix and had refused to carry out her internal examination in
absence of her guardians/parents. In the case diary, there is no
mention that after returning back from hospital, whether the
prosecutrix was allowed to go or where She was kept. However, one
thing is clear that the father of the prosecutrix was called in the police
station in the morning.
49. After taking instructions from the Investigating Officer, it is
submitted by Shri M.P.S. Raghuvavnshi, Add. Advocate General, that
the prosecutrix was brought back from the hospital at 4 A.M. in the
morning. Since, the house of the father of the prosecutrix is situated
at a distance of 25 Kms from the police station, therefore the
prosecutrix was kept in Urja desk, which is situated in Police Station
itself. However, he fairly conceded that this fact of keeping the
prosecutrix in Urja desk in the night is not mentioned in the case
diary. However, it is mentioned that this fact is mentioned in
Rojnamchan Sanha dated 1-2-2021. During the course of arguments,
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
it was replied by Shri Raghuvanshi, that the prosecutrix came back to
Police Station at 4 AM, whereas the Rojnamchasanha dated 1-12-
2021 discloses that the prosecutrix was brought back to Police
Station at 2:54 A.M. Thus, the submissions made by Add. Advocate
General on the instructions of the Investigating Officer doesnot tally
with record. Thus, the authenticity of Rojnamhasanha also comes
under cloud. Therefore, the verbal submission of Shri Raghuvanshi
that the prosecutrix was kept in the Urja desk cannot be accepted.
Thus, it is clear that the prosecutrix was kept in the Police Station in
the night, without any authority of law. Even otherwise,
undisputedly, Urja Desk is also inside the Police Station.
50. Shri Amit Sanghi, Superintendent of Police, Gwalior, fairly
conceded that this act of the S.H.O., Police Station Morar, Ajay Singh
Pawar and Sub-Inspector Kirti Upadhyaya was contrary to law and
the prosecutrix should not have been kept in the police station in the
night. Thus, it is clear that S.H.O., Police Station Morar, Ajay Singh
Pawar and Sub-Inspector Kirti Upadhyaya had not only manipulated
the statement of the prosecutrix recorded under Section 161 of
Cr.P.C., but they also illegally detained the prosecutrix in the police
station for the whole night. Shri Raghuvanshi, Add. Advocate
General submitted that since, the house of the father of the
prosecutrix was 25 kms away from the Police Station, therefore, she
was kept in Urja Desk. However, this explanation cannot be said to
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
be plausible and appears to be an after thought. If the S.H.O., Police
Station Morar, Ajay Singh Pawar was of the view that it was not
possible to send the prosecutrix to the house of her father, then he
should have taken permission from the Court of Competent
Jurisdiction after informing the Senior Officers and should have
mentioned this fact in the case diary. But nothing was done. Further,
every police station has been allotted four wheelers, therefore, it is
incorrect to say that it was not possible to send the prosecutrix to the
house of her father in the night. It is also not the case of the police,
that the prosecutrix had ever refused to go to the house of her father.
On the contrary, it is the case of the respondents themselves, that the
father of the prosecutrix was informed in the morning and thereafter
he came to Police Station. Thus, it is clear that the police officers
were treating the prosecutrix as an accused.
(Whether videography of statement of Ganga Singh Bhadoria
was necessary or not?
51. The Police Head Quarter in its circular No. File
No./Paripatra/A.M.Ni./Mahila apradh/323/2017 dated 9-11-2017 has
directed as under :
7- ?kVukLFky dh ohfM;ksxzkQh vko';d :i ls djk;h tkos]
ihfMrk ds ohfM;ks dFku vck/k :i ls fu;ekuqlkj djk;s tkosaA
52. Another circular dated 7-3-2019 has already been reproduced
earlier. As per Police Circular dated 7-3-2019, the I.O. must get the
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
videography of statements of the prosecutrix and the witnesses. As
per the police case diary dated 1-2-2021, Ganga Singh Bhadoria was
called in the police station and he had given his defence. There is no
difference between Prosecution witness or Defence witness.
Although there were allegations against Ganga Singh Bhadoria, but
that allegation was deliberately omitted by Sub-Inspector Kirti
Upadhyaya in the statement of the prosecutrix recorded under Section
161 of Cr.P.C. Further, the S.H.O., Police Station Morar, Ajay Singh
Pawar, had interrogated Ganga Singh Bhadoria as a witness. Then
why the videography of the statement of Ganga Singh Bhadoria was
not done by the police? Thus, it is clear that the police was not acting
with clean hands and was acting in accordance with their whims and
wishes. Be that as it may.
Why two supplementary statements of the prosecutrix were
recorded on 1-2-2021?
53. Another important aspect of the matter is that Sub-Inspector
Kirti Upadhyaya had recorded the supplementary statements of the
prosecutrix twice on 1-2-2021. As per the police case diary, Sub-
Inspector Kirti Upadhayay was directed to interrogate the prosecutrix
as to why She disclosed her wrong age. But if the supplementary
statement of the prosecutrix recorded on 1-2-2021 is considered, then
it is clear that no interrogation was done from the prosecutrix as to
why She had disclosed incorrect date of birth. Not a single word
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
regarding disclosure of wrong date of birth were asked, but Sub-
Inspector Kirti Upadhyaya again and again insisted the prosecutrix to
tell about incident. Two supplementary statements of prosecutrix
were recorded on 1-2-2021 and the same were also videographed.
54. Thus, it is clear that clarification given in case diary for
recording of supplementary police statements is incorrect and
misleading.
55. As per the statement of prosecutrix recorded under Section 164
of Cr.P.C., Ganga Singh Bhadoria was called in the police station, and
thereafter, the prosecutrix was beaten by a lady police officer.
Thereafter, She was taken upstairs where She was beaten by 6-7 lady
police constables by belt. Thereafter, She was brought downstairs
and her supplementary statements under Section 161 of Cr.P.C. were
recorded. Thereafter again She was beaten by police personals
including Male Police personals. Thus, it is clear from the statement
of the prosecutrix recorded under Section 164 of Cr.P.C., the
prosecutrix was beaten before recording of her supplementary
statements.
56. The Doctor in the medical examination conducted on 2-2-2021
at 9:30 P.M., had found multiple bruises on B/L thigh and
tenderness. The Doctor had also found swelling on B/L thigh. The
Doctor had also found swelling on face (lt. Side) and in the column
of Facial bone injury, it was once again mentioned that tenderness
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
was found on left cheek bone. Thus, it is clear that on 2-2-2021 at
9:30 P.M., the Doctor had found multiple bruises and swelling on B/L
thigh and left cheek and mild tenderness behind the ears. Thus, it is
clear that the prosecutrix was beaten in a standing condition,
therefore, multiple bruises were found on B/L thigh. It also appears
that the prosecutrix was slapped also, therefore, bruises and swelling
was found on left cheek and tenderness was found behind her ears.
The pattern of injuries found on the body of the prosecutrix is
indicative of fact that the prosecutrix was helpless and was in
standing condition without any motion, and She was being beaten
mercilessly. One thing is clear that on 31-1-2021, when the
prosecutrix came to Police Station for lodging of F.I.R., there was no
injury on her body and when She was produced before the J.M.F.C.,
Gwalior, she had made complaint of beating by police personals and
same allegation was repeated in the Court of C.J.M., Gwalior and in
the M.L.C., bruises and contusions were found on the body of the
prosecutrix. Thus, prima facie, the allegation of beating of
prosecutrix in police custody appears to be correct. However, before
drawing any conclusion, this Court would like to consider other
important aspects of the matter.
57. According to police case diary proceedings, on 1-2-2021, when
the prosecutrix was sent again for the purposes of medical
examination, She refused to undergo medical examination of her
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
private part. The case diary also contains the medical report dated 2-
2-2021. Thus, it is clear that the prosecutrix was also sent to Hospital
by the police on 2-2-2021 for her medical examination, but the police
case diary doesnot contain any proceedings of 2-2-2021. The last
proceeding of 1-2-2021 is written on page no. 154 and the next
proceedings are of 3-2-2021 which is on page no. 155.
58. As already pointed out, the police had recorded three
statements of the prosecutrix i.e., first on 31-1-2021, supplementary
statement on 1-2-2021 and 2nd supplementary statement on 1-2-2021
itself. As already pointed out, there is nothing in the case diary to
indicate that at what time, the statement/supplementary statements of
the prosecutrix were recorded. However, from the supplementary
statements of the prosecutrix, it appears that in her 1 st supplementary
statement, she had narrated that infact she was raped by Dharmendra
Dhakad, and thereafter, in her second supplementary statement, She
stated that infact She was raped by one Haneef.
59. If the videography of statement of the prosecutrix in which She
had stated that She was raped by Dharmendra is seen, then it is clear
that the videography was done from the right side of the prosecutrix,
therefore, her right cheek is visible, but her left cheek is not visible.
Further as the prosecutrix had taken Chunni on her head, therefore,
back side of her ear is not visible. Why videography was done from
one angle is best known to the police personals. One of the reason
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
might be that the police must be trying to hide the swelling of the
prosecutrix on her left cheek. Be that whatever it may be.
60. One thing is clear from the video clipping that Sub-Inspector
Kirti Upadhyaya did not reduce her statement in writing and was
taking notes. Thus, it is clear that method of taking statement of the
prosecutrix was not in accordance with settled principle of law as
well as the police circular dated 7-3-2019. If the supplementary
statement of the prosecutrix recorded by Sub-Inspector Kirti
Upadhyaya is compared with the video clipping of the statement of
the prosecutrix, then it is clear that her statement was not reduced in
writing in its entirety. The prosecutrix did not utter the name of
Aditya in her statement, but it was Sub-Inspector Kirti Upadhyaya,
who was suggesting the name of Aditya. Further, the prosecutrix did
not say that Dharmendra had instigated her to falsely implicate
Aditya in F.I.R., but that is mentioned in the statement of the
prosecutrix. Thus, it is clear that Sub-Inspector Kirti Upadhyaya was
out and out to manipulate the record. Further, the prosecutrix was
looking terrified and the manner of asking question was also rude.
Be that as it may.
61. According to the police case diary, the prosecutrix was taken to
the house of Dharmendra Dhakad and both were brought back to
Police Station, where the statement of Dharmendra Dhakad was
recorded and was also videographed. Dharmendra Dhakad denied
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
the allegation of rape and on the question put by Sub-Inspector Kirti
Upadhyaya, he replied, that the prosecutrix might be alleging against
him for want of money. According to case diary, the prosecutrix and
Dharmendra Dhakad were interrogated in presence of each other and
thereafter, Prosecutrix resiled from her second supplementary
statement and alleged that in fact She was raped by Haneef.
Accordingly, her third supplementary statement was recorded. The
video clipping of third supplementary statement is also available. In
this video clipping the prosecutrix is apparently looking in a terrified
condition. Shri Raghuvanshi was also directed to point out as to
whether any swelling is visible on her face or not, then he submitted
that since, there is a light in the background, therefore, he is not in a
position to say that whether there is any swelling on the face of the
prosecutrix or not. Further, the prosecutrix was not fluent in
answering the questions. She was thinking and was taking time in
answering the question, which clearly indicates that She was under
pressure. Be that as it may. It is once again clarified that the finding
regarding behavior of the prosecutrix in video clipping is not final
and they are subject to enquiry/investigation/trial, but for the
purposes of this writ petition, if the manner of giving statement on
31-1-2021 is compared with the manner of giving statement on 1-2-
2021 (on two occasions) it appears that she was in terrified condition.
However, one thing is clear that the Sub-Inspector Kirit Upadhyaya
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
did not record the complete statement of the prosecutrix which was
made on 31-1-2021 as well as did not record supplementary
statements completely as well as did not mention the demeanor of
prosecutrix. Thus, it is clear that the prosecutrix was beaten by the
police officials before recording of her supplementary statements.
The number of injuries and the part of body of the prosecutrix shows
that She was mercilessly beaten by the police personals for oblique
motive. Multiple bruises were found on thighs of both legs, which
clearly indicates, that the solitary intention of the wrong doer was to
create fear in the mind of the prosecutrix so that She may change her
version. But one thing is clear that, before the beating of the
prosecutrix took place, Ganga Singh Bhadoria had already visited
the police station.
62. There is another aspect of the matter, which cannot be ignored.
63. After the prosecutrix made complaint regarding her beating by
the police personals, the C.J.M. took cognizance of her complaint and
directed the C.S.P. Morar to change the investigating officer and to
provide adequate protection. This order was placed before
Superintendent of Police, Gwalior who in his turn, directed the Add.
S.P., Smt. Suman Gurjar to enquire into matter. As already pointed,
initially Superintendent of Police, Gwalior submitted that enquiry is
still pending and the enquiry report shall be produced within 3-4 days
and only on the repeated directions by this Court, the enquiry file
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
pending before Add. S.P., Ms. Suman Gurjar was provided to the
Court.
64. According to the file of enquiry into the allegation of beating
by the police personals with the prosecutrix is concerned, that gives a
very hopeless image of Police Personals working in the District of
Gwalior.
65. From the file, it is clear that on 2-2-2021, the Superintendent of
Police, Gwalior, directed Smt. Suman Gurjar, Add. Superintendent of
Police (East), Gwalior to conduct an enquiry and submit the report
within 5 days. On 3-2-2021, Smt. Suman Gurjar, Add. S.P. (East),
marked the letter of the Superintendent of Police, to her reader and
directed for obtaining report from C.S.P. Morar.
66. On 4-2-2021, a letter was sent to Shri Ram Naresh Pachouri,
C.S.P., Morar to conduct an enquiry. The C.S.P., Morar, recorded the
statements of the prosecutrix as well as Police Personals. After
reproducing the statements of the witnesses, it is mentioned by C.S.P.,
Morar, that the CCTV cameras of P.S. Morar are out of order from
25-7-2020 and therefore, the footage of the police station could not
be obtained. Thereafter, the C.S.P., directly jumped to a conclusion
that the allegation of beating by police is false. The conclusion
drawn by C.S.P., Morar, Gwalior reads as under :
;g gS fd lk{khs;kas ds dFku miyC; nLrkosth lk{; tkap es vk;s
mijksDr rF;ksa ,oa laiw.kZ tkap ls Ikk;k x;k gS fd fnukad 31-1-
2021 dks Qfj;kfn;k (Name is not being reproduced in order
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
to maintain privacy) gky xaxk flag HknkSfj;k dk edku lh ih
dkyksuh ds }kjk Fkkuk eqjkj ij mlds lkFk cykRdkj gksus dh
fjiksZV dh xbZ FkhA fnukad 31-1-2021 dks Qfj;kfn;k dks esfMdy
ijh{k.k gsrq jk=h es eqjkj vLirky fHktok;k x;k Fkk tks ogka
djhc jk=h cts rd vLirky es jgh fdUrq esMhdy ijh{k.k ugh
gksus ls okil Fkkuk vkus ij (Name is not being reproduced in
order to maintain privacy) dk dksbZ ifjtu mifLFkr ugh gksus
ls ,oa Qfj;kfn;k dh ftn djus ij mls lqj{kkFkZ Fkkuk eqjkj dh
mtkZ MSDl es efgyk vkj 2128 f'kokuh nqcs ds lkFk j[kk x;k Fkk
mlds lkFk Fkkuk ij iqfyl }kjk ekjihV ugh dh tkuk Ikk;k x;k
gSaA ekuuh; U;k;ky; ds vkns'k ls fnuakd 1-2-2021 dks
Qfj;kfn;k dk esfMdy ijh{k.k djk;k x;k ftles MkWDVj }kjk
(Name is not being reproduced in order to maintain privacy)
dks vkbZ pksV 24 ls 48 /kaVk dh gksuk crk;k x;k gS tks
Qfj;kfn;k ds Fkkuk es vkus ds iwoZ dh Hkh gksuk laHko gSA
67. In the meanwhile, the cousin brother of the prosecutrix had
filed a habeas corpus petition which was registered as W.P. No. 2571
of 2021, and the corpus was produced before the Division Bench of
this Court through Video Conferencing and expressed her willingness
to move to her parental home and accordingly She was released from
One Stop Center and was permitted to stay with her parents. In the
habeas Corpus petition also, allegations of maltreatment were made.
While disposing of the writ petition, it was observed by the Division
Bench as under :
Respondent/Authorities especially Station House Officer,
Police Station Morar, Gwalior is expected to investigate the
matter in accordance with law in just free and fair manner
and would ensure consequential follow up action as per law.
68. In the light of the observations, the Add.S.P. (East) wrote
another letter dated 25-2-2021 to C.S.P., Morar to enquire into the
matter in the light of the observations made by this Court. Reminders
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
were sent on 24-3-3021, 15-4-2021,18-5-2021. By letter dated 7-4-
2021, the C.S.P., Morar informed the Add. S.P. (East) that the
explanation of S.H.O., Police Station Morar Ajay Singh Pawar was
taken on the following issues :
1. When 8 injuries were found in the medical examination, then why
She was not got medically examined at the earliest.
2. There is a clear direction that the lady complainant and lady
accused should not be retained in police station after sunset, but why
She was retained in the Police Station for the whole night?
3. Why the statements of the prosecutrix under Section 164 of
Cr.P.C. were not got recorded as early as possible?
69. After taking explanation, it was opined that the explanation of
S.H.O., Police Station Morar, Ajay Singh Pawar, Distt. Gwalior is not
satisfactory.
70. Thereafter, it appears that on 4-6-2021, the C.S.P., Morar again
submitted his report. This report is nothing but a verbatim
reproduction of first report. In this report also, no reasons have been
assigned and the C.S.P., Morar, after reproducing the statements of
the witnesses, directly came to conclusion that there is no evidence of
beating in the police station. Surprisingly, the Add. S.P. (East)
instead of taking further action on the report, directed her Reader to
place before her for appreciation of evidence. This endorsement was
made on 4-6-2021 and thereafter nothing was done by Add. S.P.
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
(East). It is really surprising that when the Superintendent of Police,
Gwalior had entrusted the enquiry to Add. S.P. (East) because of
serious allegations of beating by police personals were made by the
rape victim, but still the Add. S.P. (East) took the matter in a most
casual manner and forwarded the letter of the Superintendent of
Police, Gwalior to C.S.P., Morar for enquiry. Further, the C.S.P.,
Morar, by reproducing the statements of the witnesses, merely said
that there is no evidence of beating of rape victim in the police
station.
71. Further more, the conduct of the Add. S.P. (East) in taking the
matter in a most casual and irresponsible manner became more
serious, as Chair Person, National Commission For Women, had
taken cognizance of news clipping published in the news paper
"Hindustan Times" and had written a letter to Shri Vivek Johri,
Director General of Police to submit the action taking report/status
report before the National Commission For Women. The letter
written by Chairperson, National Commission For Women to Shri
Vivek Johri, Inspector General of Police, State Of Madhya Pradesh is
enclosed in the police case diary.
72. It is really shocking that inspite of the most casual and
irresponsible attitude of Add. S.P. (East) in dealing with such a
serious allegation, the Superintendent of Police, Gwalior, submitted
before the Court, that the enquiry report shall be produced within 3-4
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
days. Add.S.P. (East) did not do anything in the enquiry. Not a single
finding was recorded by Smt. Suman Gurjar Add. S.P. (East). She
even did not care to talk to the prosecutrix. This shows that the
police officers have no respect for the dignity, life and liberty of rape
victims and have no respect for the Court (as direction was given by
C.J.M.) and have no respect for National Commission For Women,
who had sought report from D.G.P., State of Madhya Pradesh. It is a
serious situation, which requires immediate action so that the
innocent citizens of India may not further suffer at the hands of the
irresponsible police officers.
73. There is another aspect of the matter. C.S.P., Morar had
recorded the statements of Sub-Inspector Kirti Upadhyaya and Lady
Constable Manisha Jadon, who tried to explain the presence of
injuries on the body of the complainant. Sub-Inspector Kirti
Upadhyaya had stated that She had already noticed abrasions on the
body of the prosecutrix. Lady Constable Manisha Jadon has also
stated that at the time videography of statement of the prosecutrix,
She had noticed abrasions on the body of the prosecutrix.
74. So far as the statement of Sub-Inspector Kirti Upadhyaya, Lady
Constable (who had videographed the statement of the prosecutrix) is
concerned, it is palpably incorrect. This Court has already seen the
video clippings of the statements of the prosecutrix. Her entire body
is covered. No abrasion or bruise is visible. Even otherwise, most of
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
the injuries were found on the thighs of both legs. Unless and until,
the cloths are removed, the injuries could not have been noticed
either by Sub-Inspector Kirti Upadhyaya and Lady Constable
Manisha Jadon. Further, there was no reason for the above
mentioned police officers not to mention the presence of injuries in
the police case diary. Further, in the requisition form which was
prepared in the night of 31-1-2021 for medical examination of the
prosecutrix, there is no reference to the injuries. Thus, it is clear that
Sub-Inspector Kirti Upadhyaya and Lady Constable Manisha Jadon
had given false statement in the enquiry, and that was conveniently
accepted by the C.S.P., Morar. Further, the stand of S.H.O., Police
Station Morar, Ajay Singh Pawar and Sub-Inspector Kirti Upadhyaya
as well as Lady Constable Manisha Jadon are self contradictory. In
report dated 7-4-2021, C.S.P., Morar has mentioned that as per the
defence of S.H.O., Police Station Morar, Ajay Singh Pawar, since, the
entire body of the prosecutrix was covered, therefore, her injuries
were not visible.
75. Thus, viewed from every angle, it is held that the prosecutrix
was mercilessly beaten by the police personals in the police station,
so that She can withdraw her allegations against Aditya Bhadoria. At
the cost of repetition, it is once again mentioned that even the Sub-
Inspector Kirti Upadhyaya, did not mention the allegations made by
the prosecutrix against Ganga Singh Bhadoria in her statement under
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
Section 161 of Cr.P.C. Further, the prosecutrix was not allowed to
leave the police station, and She was kept (In fact it can be said that
She was detained) in the police station for the whole intervening
night of 31-1-2021 and 1-2-2021 and thereafter, the prosecutrix was
kept (in fact it can be said that She was detained) in the police station
for the whole day on 1-2-2021.
76. Now the next question for consideration is that who are the
persons who are responsible for beating of the prosecutrix.
Undisputedly, the Investigating Officer Sub-Inspector Kirti
Upadhyaya is responsible and that is why, even the C.J.M., Gwalior
had directed for change of Investigating Officer. Further S.H.O.,
Police Station Ajay Singh Pawar is also responsible because the
prosecutrix has alleged in her statement under Section 164 of Cr.P.C.,
that before coming to the Court, the T.I. had threatened her to depose
according to their directions, otherwise, She has to come back to the
Police Station, therefore, it is clear that the prosecutrix was beaten
with the permission of S.H.O., Police Station Morar, Ajay Singh
Pawar. The prosecutrix could not disclose the name of any wrongdoer
who had beaten her. It is a matter of enquiry to find out the names of
the lady constables who were on duty in the police station on 1-2-
2021. As the prosecutrix has also stated that She was also beaten by
Male Constables, therefore, it is necessary to find out the names of
those Male constables. Accordingly, the investigating agency is
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
directed to conduct Test Identification Parade to trace out the
assailants.
Why the prosecutrix was sent to One Stop Center and who had
given such order?
77. The C.S.P., Morar, had joined the Court proceedings on his
own along with Superintendent of Police,Gwalior. The Police Case
diary reveals that after the statement of the prosecutrix was recorded
under Section 164 of Cr.P.C., the C.J.M., Gwalior directed C.S.P.,
Morar to keep the prosecutrix in a secured place. There is no
direction that the prosecutrix should be lodged in One Stop Center.
78. The case diary proceedings reveals that the prosecutrix was
sent to One Stop Center on the orders of the C.S.P., Morar. However,
the case diary doesnot contain any written order of C.S.P. Morar. It
appears that the prosecutrix was lodged in One Stop Center, Gwalior
on the verbal orders of C.S.P., Morar.
79. When C.S.P., Morar was asked by the Court as to why the
prosecutrix was sent to One Stop Center, Gwalior and why not to her
parental home, then it was submitted by C.S.P., Morar, that there was
an oral order by C.J.M., Gwalior. This reply given by C.S.P., Morar
cannot be accepted. Courts never give any oral order. Once, the
C.J.M., Gwalior had written an order that the prosecutrix be kept in a
secured place, then there was no difficulty for him to give a specific
direction to lodge the prosecutrix in One Stop Center. Thus, it is
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
clear that the explanation given by C.S.P. Morar, Gwalior is false and
is hereby rejected.
80. Thus, it is clear that after detaining the prosecutrix for the
whole intervening night of 31-1-2021 and 1-2-2021, She was forcibly
detained in the Police Station for the entire day, and thereafter, She
was sent to One Stop Center. Thus, the entire effort of the police was
to keep the prosecutrix away from the entire world.
Whether Sub-Inspector Kirti Upadhyaya had correctly recorded
the statement of Dharmendra Dhakad
81. The respondents have also provided the video clippings of the
statement of Dharmendra Dhakad. In his statement, Dharmendra
Dhakad has no where stated that about one month back, he had
attended a Paneer Party in the room of the prosecutrix, but in his
statement recorded under Section 161 of Cr.P.C., the Sub-Inspector
Kirti Upadhyaya, has added certain allegations on her own. Further,
from the video clipping, it is clear that Sub-Inspector Kirti Dhakad is
not visible. As per the Police Circulars, the Investigating Officer
should also be visible, and the paper on which the statement is being
recorded, should also be visible. But in this Video Clipping, since,
the Sub-Inspector Kirti Upadhyaya is not visible, therefore, it is not
clear as to whether She was writing the statement of Dharmendra
Dhakad or not? But one thing is clear that the statements of the
witnesses under Section 161 of Cr.P.C. should be recorded verbatim
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and the investigating officer, cannot write the statements on his own.
Thus, it is clear that Sub-Inspector Kirti Upadhayay has added certain
allegations in the statement of Dharmendra Dhakad on her own.
Thus, She is prima facie guilty of manipulating the official record.
Whether Sub-Inspector Kirti Upadhyaya had rightly recorded
the statement of father of the prosecutrix ?
82. The video clipping of statement of father of the prosecutrix has
also been provided. If the statement of father of the prosecutrix
written by Sub-Inspector Kirti Upadhyaya and the video clippings are
compared, then it is clear that the demeanor of father of prosecutrix is
not mentioned in the statement under Section 161 of Cr.P.C. Further,
it is also found that the statement of the father of the prosecutrix was
not written verbatim. Due to noise in the background, the audio of
video clipping of the statement of father of prosecutrix is not good,
but one thing is clear that he was taking long pause in between his
two sentences. He also doesnot appear to be very comfortable while
giving statement. Thus, it is clear that Sub-Inspector Kirti
Upadhyaya has manipulated the official record.
Whether the S.H.O., Police Station Morar Ajay Singh Pawar has
tried to level allegations against the J.M.F.C., Gwalior in order to
get over the allegations of beating in the police station?
83. It is mentioned in the case diary proceedings that the
prosecutrix was sent to the Court along with Lady Constable
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Pratibha. It is also mentioned that after coming back, Lady Constable
Pratibha informed that earlier the J.M.F.C. Gwalior, refused to record
the statement of the prosecutrix under Section 164 of Cr.P.C.
Accordingly, when She came out of the chamber of the J.M.F.C.,
Gwalior, She and the prosecutrix were surrounded by 5-6 unknown
persons and they started insisting that the statement of the prosecutrix
must be recorded and accordingly, one Advocate took the prosecutrix
in the chamber of the J.M.F.C, Gwalior, where the statement of the
prosecutrix was recorded under Section 164 of Cr.P.C. Thus, it is
alleged against the J.M.F.C., Gwalior, that although She was not
inclined to record the statement of the prosecutrix under Section 164
of Cr.P.C., but under the pressure of an Advocate, her statements were
recorded.
84. From the statement of the prosecutrix recorded under Section
164 of Cr.P.C., it is clear that the J.M.F.C., Gwalior has not recorded
any thing about pressure by any Advocate. Further, it is well known
that J.M.F.C., Gwalior cannot refuse to record the statement of the
prosecutrix under Section 164 of Cr.P.C.
85. While making allegations against the J.M.F.C., Gwalior, the
Police has also recorded in the Police Case Diary, that Govt Pleader
O.P. Sharma, forcibly took the prosecutrix inside the Chamber of the
J.M.F.C., Gwalior and got her statement recorded under Section 164
of Cr.P.C. It is also mentioned in the police case diary that Shri O.P.
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Sharma, Govt. Pleader is hands in glove with Sonu Sharma who is
behind the scene.
86. Therefore, it is clear that in order to fulfill their ill designs, the
police officers were not only beating the prosecutrix, but they have
gone to the extent of leveling allegations against the J.M.F.C.,
Gwalior as well as against O.P. Sharma, Govt. Pleader.
Whether the S.H.O., had travelled beyond his jurisdiction by
directing the D.P.O. to provide video footage of CCTV Cameras
installed in Court premises.
87. From the case diary proceedings, it is clear that on 9-3-2021
the S.H.O., Police Station Sirol, Distt. Gwalior wrote a letter to
D.P.O.,, directing him to provide the CCTV footage of the Court
premises. The copy of the letter has been filed along with the Return
and is at page 190. It is also mentioned in the case diary proceedings
that D.P.O. has verbally informed that there are only two cameras in
the Court premises, and the CCTV footage of the same can be
obtained after taking due permission from District Judge.
88. When the Superintendent of Police, Gwalior was asked as to
whether the Investigating Officer/S.H.O., Sirol, Distt. Gwalior can
direct the D.P.O. to provide the CCTV footage of the Cameras
installed inside the Court premises, then it is rightly submitted by
Shri Sanghi, Superintendent of Police, Gwalior, that such type of
letter written by S.H.O., Police Station Sirol, Distt. Gwalior was
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clearly out of her jurisdiction. If the investigating officer was of the
view that the CCTV footage of any camera installed inside the Court
premises is necessary for investigation, then the I.O., should have
brought this fact to the knowledge of the Superintendent of Police,
and the letter of request would have been sent by Superintendent of
Police, Gwalior, to the District Judge, Gwalior. But in no
circumstances, the I.O., could have directed the D.P.O. to provide
CCTV footage of Cameras installed inside the Court premises.
89. Thus, it is clear that in order to fulfill the ill designs of the
police authorities, the Investigating Officer, had not only gone to the
extent of leveling false allegations against the Judicial Officers, but
they also travelled beyond their jurisdiction by directing the D.P.O.,
to provide the CCTV footage of cameras installed within the Court
premises.
Whether there is any difference in the Medial Opinion given by
the Doctors in relation to the injuries sustained by the prosecutrix
90. The prosecutrix was sent for medical examination for four
times i.e.,
(I) In the intervening night of 31-1-2021 and 1-2-2021, but the
Doctor refused to carry out internal examination of the prosecutrix.
However, under the orders of the Court, the prosecutrix was sent for
medical examination on 1-2-2021. As per M.L.C. report, 8
contusions were found on different parts of the body of the
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prosecutrix like face, left forearm, right wrist, right lumber region,
left thigh, neck etc. Again She was sent for medical examination at
10:30 P.M. on 1-2-2021 and it is alleged that the prosecutrix refused
to undergo the medical examination of her private parts.
91. However, another medical examination of the prosecutrix was
conducted on 2-2-2021 at 9:30 P.M., and the Doctor did not find any
abrasion, but multiple bruises were found over B/L thighs, bruising
and swelling over Left Cheek bone and tenderness was found behind
the ears. Although the Doctor has not given the duration of these
injuries and has merely mentioned that as per the information given
by the victim, the incident happened 3-4 days back, but one thing is
clear that there is a difference in the medical opinion of two Doctors.
The medical report given on 2-2-2021, corroborates with the
allegations of the prosecutrix that She was beaten by belts. As
already pointed out, the bruises were found on both thighs, cheek and
behind ears. Thus, it is clear that She was beaten by belts and most
probably was also slapped. Thus, it is also a matter of investigation,
that why two different medical reports were given by Doctors
because in one report, abrasions were found and another report
bruises were found. The investigating officer is also directed to
investigate into the role of the Doctor who had given the medical
report dated 1-2-2021.
Whether Medical Report dated 1-2-2021 was given by the Doctor
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immediately or not?
92. From the police case diary proceedings, it is clear that the
medical report dated 1-2-2021 was received in the police station on
18-2-2021. The case diary proceedings dated 10-2-2021 reveals that
a letter was written to C.S.P., Morar, to the effect that he had got the
prosecutrix medically examined but the medical report has not been
sent. It appears that the C.S.P., Morar, sent the medical report to the
police station on 18-2-2021. It is true that C.S.P., Morar, was
conducting an enquiry into the allegations of beating by the police,
but the file of Add. S.P. (East) shows that enquiry report dated 12-2-
2021, was submitted by C.S.P. to the Add. S.P. (East) which was
received by Add. S.P. (East) on 13-2-2021. There is nothing in the
case diary or in the file of Add. S.P.(East) as to on what date, the
C.S.P., Morar had received the medical report dated 1-2-2021. But
one thing is clear. After preparing enquiry report dated 12-2-2021,
there was no occasion for the C.S.P., Morar to keep the medical
report of the prosecutrix dated 1-2-2021 with him. But still, he
retained the said medical report with him and was sent to the Police
Station on 18-2-2021, whereas a letter of request dated 10-2-2021
was already made by the Investigating Officer.
93. As already pointed out, there is no diary proceedings dated 2-2-
2021, but the case diary contains the Medical Report of the
prosecutrix which was prepared on 2-2-2021 at 9:30 P.M. From the
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case diary proceedings, it is clear that this medical report was sent to
investigating officer on 3-2-2021, which was included in the case
diary on 4-2-2021 i.e., much prior to receipt of medical report dated
1-2-2201.
94. Since, the medical report dated 2-2-2021 is in conformity with
the allegations made by the prosecutrix, therefore, it is held that
multiple bruises/tenderness were found on the thighs of both legs, left
cheek bone and behind the ears.
Whether free and fair investigation has been done in the matter
or not?
95. As already pointed out, the police started harassing the
prosecutrix immediately after She reached Police Station, as the
S.H.O., Police Station Morar, Ajay Singh Pawar, C.S.P. Morar, and
M.2 were aware of the fact that the prosecutrix has alleged
commission of rape and She is residing in the house of Ganga Singh
Bhadoria.
96. As already pointed out, although the prosecutrix had reached
Police Station at 21:04:09, but the F.I.R. was lodged at 23:50 i.e.,
after near about 3 hours.
97. As already pointed out the Sub-Inspector Kirti Upadhyaya
deliberately omitted the allegations made against Ganga Singh
Bhadoria in the statements of the prosecutrix recorded on 31-1-2021.
98. As already pointed out, that immediately after lodging of F.I.R.,
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Ganga Singh Bhadoria came to the Police Station and without
recording his statement, he was directed to provide the video clipping
of CCTV footage installed in his house.
99. As already pointed out, the prosecutrix was illegally kept (In
fact detained ) in the police station for the whole night.
100. As already pointed out, the prosecutrix was illegally kept ( In
fact detained) in the police station for the entire next day.
101. As already pointed out, the prosecutrix was mercilessly beaten
by the police personals on 1-2-2021 and thereafter She was
compelled to change her version.
102. As already pointed out, no questions were asked to the
prosecutrix as to why She had disclosed her incorrect age, therefore,
the explanation given in the case diary for recording of
supplementary statements is false.
103. As already pointed out, the statement of the prosecutrix under
Section 164 of Cr.P.C. was recorded, in which She made specifically
allegations of beating by the police.
104. As already pointed out, the matter was reported by J.M.F.C.,
Gwl to C.J.M. Gwalior who also verified from the prosecutrix
regarding the allegations of beating which was endorsed by the
prosecutrix.
105. As already pointed out, the C.S.P., Morar, without any
authority of law, sent the prosecutrix to One Stop Center, Gwalior on
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1-2-2021.
106. As already pointed out, the investigating officer in case diary
proceedings has leveled allegations against the J.M.F.C., Gwalior as
well as against Shri O.P. Sharma, Govt. Pleader. Again, during the
course of arguments, the C.S.P., Morar, made a false submission that
the prosecutrix was admitted in One Stop Center on the verbal orders
of the C.J.M., Gwalior.
107. This Court has already come to a conclusion that Sub-Inspector
Kirti Upadhyaya was manipulating the official records, and the
statements of the witnesses and prosecutrix were not recorded as
disclosed by them in the video graphy. It is also not known, as to
whether the F.I.R. itself was written properly or not and whether any
allegation against Ganga Singh Bhadoria was in omitted in F.I.R. or
not?
108. This Court has already come to a conclusion that without any
authority of law, the investigating officer, tried to obtain the CCTV
footage of the Court premises from D.P.O., Gwalior, without giving
any information to the District Judge, Gwalior and Superintendent of
Police.
109. From the case diary proceedings it is clear that Ganga Singh
Bhadoria had come to the Police Station in the night of 31-1-2021
and he was asked to provide the CCTV footage of cameras installed
in his house.
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110. However, this Court failed to understand, that why the
investigating officer, did not go to the house of Ganga Singh
Bhadoria to seize the DVR of CCTV and why he gave opportunity to
Ganga Singh Bhadoria to provide CD of CCTV recording, as per his
conveniance specifically when the S.H.O., Police Station Morar, Ajay
Singh Pawar as well as Sub-Inspector Kirti Upadhyaya knew fully
well that the prosecutrix has leveled certain allegations against Ganga
Singh Bhadoria also.
111. It is not out of place to mention here that the prosecutrix was a
maid servant of Ganga Singh Bhadoria and the incident is alleged to
have taken place in his house. Even then, the investigating
officer/S.H.O., Police Station Morar, Ajay Singh Pawar, did not try to
prepare the spot map on 1-2-2021 but on the other hand they were
busy in beating the prosecutrix and were busy in pressurizing her to
change her statement.
112. Thus, it is clear that for the reasons best known to the S.H.O.,
Police Station Morar, Ajay Singh Pawar, and Sub-Inspector Kirti
Upadhyaya could not collect courage to go to the house of Ganga
Singh Bhadoria where the incident took place. Spot map is an
important part of investigation and it was deliberately ignored by the
S.H.O., Police Station Morar, Ajay Singh Pawar and Sub-Inspector
Kirti Upadhyaya.
113. It is not out of place to mention here that the prosecutrix was
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sent to One Stop Center in the night of 1-2-2021 and on 2-2-2021 at
about 11 A.M., a habeas Corpus Petition was filed in the High Court,
and on 3-2-2021, the prosecutrix was produced before the Division
Bench of this Court through Video Conferencing and on the said
date, the prosecutrix expressed her desire to go to her parental home.
114. It also appears from the Police case diary, that the investigating
officer was changed, and the S.H.O., Police Station Sirol, Distt.
Gwalior, took over the investigation on 3-2-2021.
115. The S.H.O., Sirol, Distt. Gwalior/changed I.O., found that even
the spot map was not prepared. It is also observed in the case diary
proceedings dated 3-2-2021, that the video clippings of the
statements of the witnesses have not been kept in the police case
diary and the attention of this lapse was drawn to the Senior Officers.
Unfortunately, no one paid heed, and even when the case diary was
produced before this Court, the case diary was not containing the
video clippings of the statements of the witnesses. Thus, it is clear
that the S.H.O., Police Station Morar Ajay Singh Pawar, and Sub-
Inspector Kirti Upadhyaya as well as Lady Constable Manisha Jadon
had kept the video clippings with them. The video clippings which
have been made available to the Court contains different captions.
(I) The video clipping of statement of prosecutrix recorded on 31-
1-2021 contains a caption Whatsapp Video 2021-02-02 at 2:37:57
P.M., whereas statement of prosecutrix in which she had leveled
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allegations against Dharmendra contains a caption Whatsapp Video
2021-02-02, at 2:39:15 P.M., Second supplementary statement
recorded on 1-2-2021 contains a caption Whatsapp video 2021-02-
02 at 5:41:00 P.M., the statement of Dharmendra Dhakad contains a
caption Whatsapp Video 2021-02-02 at 5:21:56 P.M., and the
statement of the father of the prosecutrix contains a caption
Whatsapp Video 2021-02-02 at 2:34:30 P.M. Only the S.H.O.,
Police Station Morar, Ajay Singh Pawar, Sub-Inspector Kirti
Upadhyaya and Lady Constable Ms. Manisha Jadon would be in a
position to explain the meaning of above mentioned captions.
Therefore, the investigating officer is directed to investigate on this
issue also. However, one thing is clear that no inference can be
drawn from the above mentioned Whatsapp Video that at what time
and on what date, the videography was done. However, one thing is
clear. The video clippings were not kept in the case diary in
accordance with law or even in the Police Station, otherwise, there
was no occasion for caption like Whatsapp Video. Thus, it is clear
that the S.H.O., Police Station Morar Ajay Singh Pawar, Sub-
Inspector Kirti Upadhyaya and Lady Constable Manisha Jadon had
transmitted the video clippings through Whatsapp platform. The
Counsel for the State could not explain that under what provisions of
law, the police officers can transmit the video clippings through
Whatsapp platform. Thus, it clearly shows that the S.H.O., Police
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Station Morar Ajay Singh Pawar, Sub-Inspector Kirti Upadhyaya and
Lady Constable Manisha Jadon has violated the privacy of the
prosecutrix and have acted contrary to law as well as contrary to
police circulars. Further more, the case diary proceedings dated 3-2-
2021 also clearly show that the video clipping were not kept in the
Police Case Diary, whereas as per the provisions of Section 163(3) of
Cr.P.C., the statements of the witnesses can also be recorded by video
graphy. Therefore, the videoclippings of the statements of the
witnesses can be regarded as statements under Section 161 of Cr.P.C.
116. Be that as it may.
117. On 4-2-2021, the statement of the prosecutrix was once again
recorded by the S.H.O., Police Station Sirol, Distt. Gwalior/changed
I.O., and in that statement, the prosecutrix once again re-iterated the
same allegations which She had leveled in her statement under
Section 164 of Cr.P.C. It is also mentioned in the case diary
proceedings dated 4-2-2021 that the Add. S.P. (East) directed the
S.H.O., Police Station Sirol, Distt. Gwalior/changed I.O., not to
investigate into the allegations of beating by the police and the
S.H.O., Police Station Sirol, Distt. Gwalior/changed I.O. was directed
to investigate into the allegations of rape only.
118. On 5-2-2021, the spot map was prepared and torn cloths of the
prosecutrix were also seized.
119. In her videographed statement of the prosecutrix recorded by
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Sub-Inspector Kirti Upadhyaya on 31-1-2021, the prosecutrix had
specifically alleged that her cloths were torned, but the S.H.O., Police
Station Morar Ajay Singh Pawar and Sub-Inspector Kirti Upadhyaya
could not collect courage to go to the spot and to seize the torn cloths
of the prosecutrix. They did not go to the spot for collecting
incriminating/supporting evidence. Even the room of the prosecutrix
was not sealed. Only the changed I.O., prepared the spot map and
seized the torn cloths from the prosecutrix.
120. The case diary contains an Absconding Panchnama of Aditya
Bhadoria to the effect that on 4-2-2021, he was not found at his
address, but there is no mention of above mentioned fact in the case
diary proceedings of 4-2-2021.
121. The case diary contains an Absconding Panchnama of Aditya
Bhadoria to the effect that on 5-2-2021, he was not found at his
address, but in the case diary, there is no mention that Aditya
Bhadoria was searched, but it is mentioned that friend of Aditya
Bhadoria was not found.
122. On 9-4-2021, Brijmohan Singh Chouhan, who is the maternal
uncle of suspect Aditya Bhadoria provided one C.D. to investigating
officer, which was allegedly containing the videoclipping of 1-2-
2021(Most probably of Court premises). He also provided two
photographs i.e., photographs of one boy claimed to be Sonu Sharma
and prosecutrix and also provided two photographs of a person, who
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is claimed to be Sonu Sharma by Brijmohan Chouhan and also
provided one photograph of a person claimed to be Shaymu Pandit.
Although the photographs are in the case diary but the C.D. provided
by Brijmohan Singh Chouhan is not in the case diary. However, the
case diary doesnot contain any diary proceedings of 9-2-2021,
whereas the case diary contains the seizure memo dated 9-2-2021.
It is really surprising that although the Investigating Officer Priti
Bhargava, Town Inspector is alleged to have seized the above
mentioned documents, but the police case diary doesnot contain
proceedings regarding any such seizure. Thus, it is clear that even
the changed investigating officer had started dancing to the tunes
of Ganga Singh Bhadoria, and was collecting and receiving
documents from them, without making any reference of the same
in the police case diary.
123. As per the case diary, Aditya Singh was searched in his house,
but his family members expressed ignorance about his whereabouts.
But the case diary doesnot contain any abscondence panchnama
dated 10-2-2021 of Aditya Bhadoria. Again in diary proceedings
dated 12-2-2021, it is mentioned that Aditya Bhadoria was searched
in his house, but his family members were not in a position to tell
about his whereabouts. But the police case diary doesnot contain
Abscondence Panchnama dated 12-2-2021. Thus, it is clear that even
the changed Investigating Officer had started manipulating the
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investigation, and was making false entries in the Police case diary
proceedings. It is not out of place to mention here that the case
diary contains one application made by Ganga Singh Bhadoria to
the Changed investigating officer on 3-2-2021. Thus, it is clear that
immediately after taking over the investigation, the changed
investigating officer was also in constant touch with Ganga Singh
Bhadoria. It is further shocking that although Ganga Singh
Bhadoria had met with changed Investigating Officer (it is
endorsed by the changed I.O., that application was given by Ganga
Singh Bhadoria personally by mentioning " Lo;a ", and had given
an application in his defence, but there is no reference of the same
in the case diary proceedings dated 3-2-2021.
124. It also appears that Ganga Singh Bhadoria, made a similar
application to Superintendent of Police, Gwalior on 4-2-2021 and the
same was marked to S.H.O., Police Station Morar, Ajay Singh Pawar,
and S.H.O., Police Station Morar Ajay Singh Pawar received the
same on 8-2-2021. Since, the investigating officer was already
changed, therefore, it was marked to T.I., Police Station Sirol, Distt.
Gwalior, and as per the endorsement made by changed I.O., She
received this application on 24-2-2021 by hand. The word " Lo;a "
clearly indicates, that this application must have been handed over
by Ganga Singh Bhadoria, but in case diary proceedings dated 24-
2-2021, there is no such reference.
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125. Case diary proceedings dated 16-2-2021, 18-2-2021, 24-2-
2021, mentions that Aditya Bhadoria and his friends were searched
but there whereabouts were not found, but there is no abscondence
panchnama in the case diary. Thus, it appears that false entries were
being made by Changed Investigating Officer also.
126. In case diary proceedings dated 25-2-2021, there is a reference
of applications made by Ganga Singh Bhadoria to Superintendent of
Police, Gwalior and Inspector General of Police, Gwalior and
accordingly, letter was written to D.P.O., to obtain video footage of
CCTV cameras installed in Court premises. In case diary
proceedings dated 9-3-2021, there is reference of application given
by Ganga Singh Bhadoria as well as application given by father of the
prosecutrix to the Superintendent of Police, and thereafter, the
investigating officer immediately changed her investigation and
started looking for Sanjay Nai and Shaymu Pandit as alleged by
Ganga Singh Bhadoria. On the same day, the father of Shaymu
Pandit came to the police station and denied the involvement of his
son Shaymu Pandit.
127. It also appears that on 26-3-2021, a notice was issued and its
reply was given by Govind Sharma, which is in the police case diary.
It is specifically mentioned in the reply, that Govind Sharma tried to
hand over the reply personally to the investigating officer, but She
refused to accept it and accordingly, the same was sent through
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registered post. In the reply, it is specifically mentioned that in
connection with the present case, he was summoned in the police
station for number of times and was made to sit in the police station
for no reasons and accordingly on 4-2-2021, he had also made a
complaint to the Superintendent of Police. The said application is
also in the case diary Thus, it is clear that right from the very
beginning, the police was not trying to collect the correct facts but
was trying to implicate other persons without any basis but only on
the request of Ganga Singh Bhadoria. Similarly, the case diary
contains a reply sent by Sanjay Savita by registered post, in which
there is an endorsement that the investigating officer has refused to
accept the same, therefore, it is being sent by registered post.
128. The case diary also contains an application made by Ganga
Singh Bhadoria dated 2-2-2021, in which he has mentioned that the
prosecutrix has refused to undergo the medical examination of her
private parts. This application was also received by changed
investigating officer personally on 5-2-2021. It is really surprising
that according to the prosecution, the prosecutrix had refused to
undergo the medical examination of her private part on 1-2-2021 at
10:35 P.M., and Ganga Singh Bhadoria was aware of this fact. Thus,
it is clear that Ganga Singh Bhadoria was keeping a close watch on
the investigation which is not possible without the help of the
investigating officer or any other police personal posted in the police
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station. From the police case diary, it is clear that Ganga Singh
Bhadoria was making applications constantly to the Superintendent
of Police, Gwalior which were being marked to changed Investigating
Officer.
129. In application dated 7-3-2021, the father of the prosecutrix had
also made a complaint to the Superintendent of Police, Gwalior that
under the orders of the High Court, the custody of the prosecutrix has
been handed over to him, but still the police is harassing and is
pressurizing them to withdraw the complaint. Although this
application was also marked to changed investigating officer, but
nothing was done on this application.
130. Thus, it is clear that the police was simply acting on the
dictations of Ganga Singh Bhadoria and was neither investigating on
the complaint made by the prosecutrix, nor took cognizance of
complaint made by father of the prosecutrix.
131. On 27-5-2021, Ganga Singh Bhadoria, made one more
application and the contents of the application clearly shows that he
was aware of each and every investigation which was being done in
the matter. In this letter it is mentioned that false case has been
registered at the behest of Shyamu Pandit. It is also mentioned that
during investigation, the police has collected the CDR (Call details),
according to which Shyamu Pandit had talked to the prosecutrix from
1st Jan 2021 till 19 Jan 2021, and thereafter the SIM of Shyamu
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Pandit was deactivated. Thereafter, he talked to the prosecutrix from
another SIM from 20 Jan 2021 till 31 Jan 2021, whereas this SIM is
registered in the name of Ravi son of Rajendra Prasad village Barona
Distt. Bhind. It was also mentioned that Sandeep Sharma by putting
the prosecutrix under pressure has succeeded in getting her statement
recorded under Section 164 of Cr.P.C. against Aditya Bhadoria and
himself. It is also mentioned that inspite of the direction given by
the police, the house has not been vacated. Thus, it is clear that the
investigating officer had gone to the extent of pressuring the
prosecutrix to vacate the house of Ganga Singh Bhadoria and
therefore, father of the prosecutrix had made a complaint of
harassment by the police, but no action was taken, but on the
contrary, the police was involved in making an attempt to get the
house of Ganga Singh Bhadoria vacated. Thus, it is clear that the
police was out and out to destroy all evidences which were against
Aditya Bhadoria and Ganga Singh Bhadoriya.
132. It appears that Mamta Sharma, wife of Sandeep Sharma had
also made an application to the Superintendent of Police, Gwalior
regarding false implication of her husband Sandeep Sharma, but no
heed was paid. In the complaint made by Mamta Sharma, it is
specifically mentioned that her husband Sandeep Sharma was present
in the Court premises in connection with his Court case. Thus, it is
clear that Sandeep Sharma, did not try to hide his presence in the
W.P. No. 5321 of 2021
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State of M.P. & Ors.
Court premises on 1-2-2021.
133. Court is a public place and every person, who is facing trial or
whose case is fixed or persons for other works like preparation of
affidavits etc come to the Court. Therefore, even if some person is
seen behind another person who has been brought to the Court by a
police personal, then it cannot be said that the witness is being taught.
But still, the police on the application made by Ganga Singh
Bhadoria immediately directed the D.P.O., to collect the CCTV
footage of cameras installed in Court premises. It is also not out of
place to mention here that the lady Constable who was accompanying
the prosecutrix in the Court premises, also did not record the incident
in the Court premises from her mobile as alleged by her, as per the
case diary. Thus, it is clear that the allegation that the prosecutrix
was tutored by Govt. Pleader O.P. Sharma, and the J.M.F.C., Gwalior,
recorded the statement of the prosecutrix under the pressure of Govt.
Pleader O.P. Sharma are not only false but are contemptuous.
Whether the Investigating Officer was following the direction
given by the Superintendent of Police, Gwalior.
134. The Superintendent of Police, Gwalior by its letter dated 24-2-
2021, 16-4-2021 had directed the Investigating officer to arrest the
accused persons or to initiate the proceedings under Section 82 and
83 of Cr.P.C. In reply, the Investigating Officer, by her letter dated
15-5-2021 informed the Superintendent of Police, Gwalior, that some
W.P. No. 5321 of 2021
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State of M.P. & Ors.
more time would be required to arrest Aditya Bhadoria and his friend.
The case diary also contains various letters written by Superintendent
of Police, Gwalior for early conclusion of investigation, but still the
Investigating Officer was proceeding on her own snails' speed.
135. By supervision report no. 11/2021 dated 5-2-2021, the
Superintendent of Police, Gwalior had directed to record the
statement of Ganga Singh Bhadoria, but no action was taken on said
letter.
136. Thus, it is clear that even the changed Investigating Officer was
not listening to the directions of Superintendent of Police, Gwalior.
Whether diversion of investigation to Shyamu Pandit and others
was due to evidence collected during investigation or it was on the
dictations of Ganga Singh Bhadoria.
137. The case diary reveals that on 31-1-2021, Ganga Singh
Bhadoria was present in the police station and he was directed to
provide the recording of CCTV cameras installed in his house to
verify that movements of assailants.
138. The case diary contain a seizure memo dated 13-3-2021 by
which the DVR, one CD and one Photo were seized from Brijmohan
Singh Chouhan, maternal uncle of Aditya Bhadoria. According to
this C.D., it was alleged that on 31-1-2021 at about 7:22:22 PM one
person with mask was seen entering inside the house of Ganga Singh
Bhadoria, who according to Ganga Singh Bhadoria was Shyamu
W.P. No. 5321 of 2021
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State of M.P. & Ors.
Pandit.
139. Although Ganga Singh Bhadoria had started claiming from 3-
2-2021 itself, that Shaymu Pandit had come to his house in the night
of 31-1-2021 at about 7:22 and went back at about 18:15(timings
appear to be wrongly mentioned). However, the CD of recording of
CCTV camera was made available by Ganga Singh Bhadoria on 13-
3-2021. The case diary also contains a notice dated 1-2-2021 issued
to Ganga Singh Bhadoria to supply recording of CCTV footage. This
Court has already held that the police could have seized the DVR of
the CCTV camera installed in the house of Ganga Singh Bhadoria on
1-2-2021 itself, but instead of doing that, full opportunity was given
to Ganga Singh Bhadoria to manipulate the recording. The Police
Case diary contains a photograph of a person wearing cap and mask
with one polythene in his hand and according to the recording time,
the timings of this photo is 07:22:22 P.M.
140. From the timings visible from the photo, it cannot be said that
the photograph provided by Ganga Singh Bhadoria through
Brijmohan Singh Chouhan is not morphed one. The date and Time in
the DVR is always set manually. If the photograph provided by
Ganga Singh Bhadoria was the original one, then why it was not
provided by Ganga Singh Bhadoria on 1-2-2021 itself, and why he
took approximately 1 and a half month to provide the recording of
CCTV footage specifically when he was in constant touch with
W.P. No. 5321 of 2021
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Superintendent of Police, Inspector General of Police and
Investigating Officers.
141. If the date and time in the DVR is changed, then it would
reflect the changed date and time. Thus, it is clear that during this 1
and a half month, Ganga Singh Bhadoria had ample opportunity to re-
record the things after changing the date and time of recording.
142. Thus, it is clear that the police was giving full opportunity to
Ganga Singh Bhadoria to destroy all evidences.
Why Ganga Singh Bhadoria had let out his house to the
prosecutrix.
143. It is an admitted position that the prosecutrix was working in
the house of Ganga Singh Bhadoria and was allowed to stay in the
house. It is the claim of the prosecutrix in her statement dated 31-1-
2021 which was videographed, that since, She was doing dusting and
mopping, therefore, Ganga Singh Bhadoria had allowed her to stay in
the house. However, Ganga Singh Bhadoria has claimed in his
applications that the prosecutrix was inducted as a tenant. In the case
diary proceedings dated 1-2-2021, it is mentioned that Ganga Singh
Bhadoria had informed that the prosecutrix was inducted as tenant on
monthly rent of Rs. 3500, and Bua of the prosecutrix had
recommended for the same. Thus, it is clear that Ganga Singh
Bhadoria was in touch with Bua of the prosecutrix, even then the
police did not try to find out the whereabouts of Bua of the
W.P. No. 5321 of 2021
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State of M.P. & Ors.
prosecutrix. It is really surprising that a young girl aged about 19
having no sources of income as well as having no information of
background was inducted as a tenant by Ganga Singh Bhadoria and
also did not give any information and details of the newly inducted
tenant to the nearby police station. Thus, the stand of the prosecutrix
that She was employed as a maid servant for dusting and mopping
purposes and was allowed to stay on the ground floor appears to be
more convincing.
Why the torn cloths of the prosecutrix were not seized on the date
of incident itself
144. According to the prosecution story, the torn cloths of the
prosecutrix were seized in the One Stop Center on 5-2-2021. It is
really surprising that the prosecutrix was with the police for the
whole night of 31-1-2021 and whole day of 1-1-2021, but still her
cloths were not seized, specifically when in her statement which was
videographed, the prosecutrix had specifically stated that She was
disrobed forcibly and her cloths were torned. However, the Sub-
Inspector Kirti Upadhyaya in the statement of the prosecutrix written
under Section 161 of Cr.P.C., conveniently omitted the fact that her
cloths were torned and were removed by miscreants. Thus, in view of
material difference between the statement of the prosecutrix which
was videographed and the statement which was written by Sub-
Inspector Kirti Upadhyaya, it is clear that the police personals were
W.P. No. 5321 of 2021
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State of M.P. & Ors.
trying to divert the investigation right from day one. Therefore,
S.H.O., Police Station Morar Ajay Singh Pawar, and Sub-Inspector
Kirti Upadhyaya did not seize the torned cloths of the prosecutrix
which She was also wearing when She came to police station.
145. It is true that generally, the cloths of the prosecutrix are sealed
by the Doctor and thereafter they are handed over to the Police
Personals. But in the present case, it appears that the prosecutrix was
not permitted to change her cloths by the police personals and She
was compelled to wear the same cloths from 31-1-2021 till 2-2-2021
(The cloths were seized from the prosecutrix from One Stop Center,
Gwalior on 5-2-2021). Further, from the Medical Report dated 2-2-
2021 which was prepared at 9:30 P.M., it is clear that the Doctor has
written that the prosecutrix has not changed her cloths. Further more,
when the Investigating Officer can seal the cloths on 5-2-2021, then
why the prosecutrix was compelled to wear the same torn Kurta,
Salwar and Chunni which according to her were torn during the
commission of offence? However, this aspect is to be looked into by
the investigating officer.
Whether Rojnamcha Sanhas of Police Station Morar contains the
timings of investigation.
146. A copy of the Rojnamchsanha which is also called General
Diary is maintained as per the provisions of Section 44 of Police Act.
A copy of the Rojnamchasanhas are sent to the office of
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State of M.P. & Ors.
Superintendent of Police, on daily basis. Earlier a separate book was
maintained and the original sanhas were sent to the office of
Superintendent of Police, and the carbon copy of the same were
retained in police station, but with passage of time, the
Rojnamchasanha book has been replaced by Computer entries.
Therefore, the print of Rojnamchasanhas which are maintained in the
office of Superintendent of Police, Gwalior, was supplied. As the
Rojnamchasanhas were sent after the case was reserved for orders,
therefore, the police officer who brought the Rojnamchasanhas
informed that since, the print out which was taken out from the ID of
Superintendent of Police Gwalior was not reflecting time of
recording of Rojnamchasanhas, therefore, the print out of
Rojnamchasanhas of the Police Station Morar were separately taken
out.
147. Whether non print of timings in the Rojnamchasanhas which
are available in the office of Superintendent of Police, Gwalior is due
to any technical flaw or otherwise, is not known, but one thing is
clear from the Rojnamchasanhas maintained at Police Station Morar,
the timings of each and every event has not been mentioned. It is
clear that the Rojnamchasanhas were written at the end of the day,
and after comparing with the case diary proceedings and the
Rojnamhasanhas, it is clear that almost all the Rojnamhachasanhas
are cut and paste. But only Rojnamchasanhas written at serial no. 58,
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74, 80, 81 dated 1-2-2021 (intervening night of 31-1-2021) and
Rojnamchasanha no. 8 dated 1-2-2021 written on the morning of 1-2-
2021 are not the cut paste. Be that as it may.
148. This Court did not get any assistance from the
Rojnamchasanhas of Police Station Morar, except that a A.S.I.
Vishram Singh was sent at 7:48 A.M. on 1-2-2021 to give
information to the father of the prosecutrix.
149. Thus, it is found that most of the Rojnamchasanhas did not
contain the timings of any particular investigation done by the
investigating officer.
150. Thus, in nutshell, the following circumstances would emerge :
151. The prosecutrix was employed as maid servant in the house of
Ganga Singh Bhadoria on 18-12-2020 and the prosecutrix was
residing in the house of Ganga Singh Bhadoria where the incident is
alleged to have taken place.
(a) The prosecutrix informed Dial 100 on 31-1-2021 at 20:29:09
about commission of rape.
(b) The headquarter of Dial 100 informed Unit Gwl 43 about the
event at 20:30:35 on 31-1-2021.
(c) The headquarter of Dial 100 informed S.H.O., P.S.Morar about
the incident on 31-1-2021 at 20:32:33.
(d) The headquarter of Dial 100 informed DPCR at 20:33:52.
(e) The headquarter of Dial 100 informed CSP Morar at 20:35:30
W.P. No. 5321 of 2021
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State of M.P. & Ors.
(f) The headquarter of Dial 100 sent sms to Mobile No.
8085188394 at 20:36:18
(g) The headquarter of Dial 100 sent sms to Mobile No.
7587612701 (Must be of some police officer) at 20:36:19
(h) The headquarter of Dial 100 sent sms to Mobile No.
7587600013 (Must be of some Police Officer) at 20:36:20
(i) The headquarter of Dial 100 sent sms to Mobile No. 9425964313
(Must be of some Police Officer) at 20:36:51
(j) The headquarter of Dial 100 sent sms to Mobile No.
9479993002 (Must be of some Police Officer) at 20:36:52
(k) CCSP Morar was informed about incident at 20:36:53
(xii) At 20:46:28 the headquarter of Dial 100 sent informed ASP on
Mobile No. 9479993002 who informed that P.S. Morar doesnot fall
within his jurisdiction.
(l) M.2 (Most Probably Add. S.P.) was informed about incident at
20:48:21
(m) FRV reached on the spot at 20:51:48
(n) FRV reached police station along with prosecutrix at 21:04:09
Thus, it is clear that after the incident was reported by the
prosecutrix on Dial 100, then S.H.O., Police Station Morar, Ajay
Singh Pawar, C.S.P., Morar, M.2( Most Probably Add. S.P.) were
informed even before the FRV could reach on the spot. Further, it
is clear that the prosecutrix was dropped by the F.R.V. at police
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State of M.P. & Ors.
station Morar at 21:04:09.
(o) F.I.R. was lodged at 23:50.
That means the prosecutrix was made to wait in the police station
for approximately 3 hours, but the fact that the prosecutrix had
reached police station at 21:04:09 is not mentioned in the Police
case diary.
Even the Police case diary doesnot indicate, that the M.2, C.S.P.,
Morar and S.H.O., Police Station Morar, Ajay Singh Pawar were
already informed about the incident at 20:32:33 onwards.
(p) The Statement of the prosecutrix under Section 161 of Cr.P.C.
was reduced in writing and it was also videographed.
However, there is material omission in the written statement of the
prosecutrix and the statement which was videographed. In video
clipping the prosecutrix has alleged that when She raised an alarm
for her protection, then Ganga Singh Bhadoria also came there
and after calling her by caste name, extended a threat that the
prosecutrix should not narrate the incident to any body, otherwise,
She would be killed. However, Sub-Inspector Kirti Upadhyaya,
conveniently omitted the allegations against Ganga Singh
Bhadoria in the written statement of the prosecutrix.
(q) Ganga Singh Bhadoria also reached Police Station and he was
advised to preserve and provide the CCTV footage of cameras which
are installed in his house and a notice in this regard was also given.
W.P. No. 5321 of 2021
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State of M.P. & Ors.
(r) However, Brijmohan Singh Chauhan, maternal uncle of Aditya
Bhadoria provided the DVR of CCTV on 13-3-2021 i.e., after
approximately 1 and a half month.
Thus, full opportunity was given to Ganga Singh Bhadoira to
manipulate the recording of CCTV footage of cameras installed in
his house, and recording of CCTV camera installed in the house of
Ganga Singh Bhadoria was not seized by the police in the
intervening night of 31-1-201 and 1-2-2021. On the contrary, in
the case diary proceedings dated 1-2-2021, it is mentioned that
when Ganga Singh Bhadoria was called in Police Station, then he
was directed to see the recording of CCTV footage and he informed
that one boy had come to his house at 7:22 P.M. Thus, it is clear
that Ganga Singh Bhadoria must have visited police station for
number of times in the night of 31-1-2021.
(s) The mobile and duplicate Adhar Card of prosecutrix was seized
and the prosecutrix was taken for medical examination and in the
prescription form for medical examination, no injuries were
mentioned by the police on the body of the prosecutrix.
(t) The Out Patient Record of Distt. Hospital, Morar indicates,
that the OPD Slip was prepared at 12:26:43 A.M., on which Dr.
Reena Saxena has mentioned that since, the prosecutrix has disclosed
her age as 15 years, therefore, She cannot conduct her internal
examination in absence of her guardians. The Medico-Legal Form
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State of M.P. & Ors.
indicates, that Dr. Reena Sexena had refused to carry out her internal
examination at 2:20 A.M.
(u) Although Shri Raghuvanshi, during the course of arguments
had stated that the prosecutrix was brought back to the police station
at 4 A.M., but the Rojnamchasanha indicates, that the prosecutrix was
brought back to the police station at 2:54 A.M.
(v) Rojnamchasanha No. 81 indicates that the prosecutrix was kept
in Urja Mahila Desk in the police station itself.
(w) On 1-2-2021, as per Rojnamhasanha no. 8 recorded at 7:48,
A.S.I. Vishram Singh was sent to inform the father of the prosecutrix.
From thereafter, neither the Rojnamchasanha nor the case diary
proceedings contain the timings of the events.
(x) The statement of the father of the prosecutrix was recorded and
was also got videographed.
On comparison, it is found that the written statement of father of
the prosecutrix and the video clipping of statement of father of
prosecutrix is different on certain issues.
Further, none of the videography of statements of the
witnesses/prosecutrix are in accordance with the police circulars.
(y) The first supplementary statement of the prosecutrix was
recorded in which she is looking terrified.
It is clear from the video clippings the Sub-Inspector Kirti
Upadhyaya was taking notes of the statement but was not writing
W.P. No. 5321 of 2021
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State of M.P. & Ors.
the same verbatim.
The video clipping was prepared from the right side of the
prosecutrix. Her head is covered with chunni and thus, her left
side of face is not visible in video clipping (The Doctor had found
swelling on left cheek of the prosecutrix)
(z) The prosecutrix was taken to the house of Dharmendra Dhakad.
(aa) The statement of Dharmendra Dhakad was recorded and
videographed.
In the video clipping, the investigating officer is not visible, and
there are differences in the written statement and the video clipping
and the fact of enjoying Paneer party in the room of Prosecutrix is
not in the video clipping.
(bb) The Second supplementary statement of prosecutrix was
recorded and was also videographed.
In the video clipping the prosecutrix is looking terrified and is not
answering fluently and is taking long pauses.
As the face of the prosecutrix was covered with Chunni and due to
light in the background, it is not possible to find out as to whether
there are any injuries on her left cheek and behind ears or not?
(cc) The prosecutrix was sent for recording of her statement under
Section 164 of Cr.P.C.
(dd) The prosecutrix, apart from re-iterating the allegations which she
had leveled in her videographed statement before the investigating
W.P. No. 5321 of 2021
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officer, made serious allegations against the police personals
regarding her beating. In her statement under Section 164, the
prosecutrix had also alleged that before leaving the police station for
the Court, the S.H.O., Police Station Morar, Ajay Singh Pawar had
threatened her that She should depose in accordance with their
directions, otherwise, She has to come back to the Police Station.
(ee) The J.M.F.C., Gwalior, immediately brought this fact to the
knowledge of C.J.M., Gwalior, who immediately summoned the
C.S.P., Morar and also verified from the prosecutrix. The prosecutrix
once again made allegations of beating by the police.
(ff) In order to overcome the allegations of beating, it was mentioned
in the police case diary, that initially the J.M.F.C., Gwalior, refused to
record the statement of the prosecutrix under Section 164 of Cr.P.C.
When the lady constable came out of the chamber of the J.M.F.C.,
Gwl, they were surrounded by 5-6 persons who started pressuring
that the statement would be recorded and the prosecutrix has to make
a statement as per their wish and one Advocate forcibly took the
prosecutrix inside the chamber of the J.M.F.C. and the statement
under Section 164 of Cr.P.C. was recorded. In the case proceedings it
is also mentioned that Shri O.P. Sharma, Govt. Pleader is assisting
one Sonu Sharma
Thus, in order to overcome the allegations of beating, the police
went to the extent of leveling allegations against the J.M.F.C.,
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State of M.P. & Ors.
Gwalior and Govt. Pleader.
(gg) A separate order was passed by C.J.M., Gwl, directing for
change of investigating officer and also to keep the prosecutrix at a
secured place.
(hh) The prosecutrix was sent for medical examination.
(ii) Since, the internal examination of the prosecutrix was not done,
therefore, She was once again sent for medical examination. As per
medico-legal Examination report, the prosecutrix was brought to the
Hospital at 10:30 P.M. and as per the endorsement written at 10:35
P.M., the prosecutrix refused to undergo medical examination.
(jj) Thereafter, without any order from the Court, the C.S.P., Morar
sent the prosecutrix to One Stop Center instead of sending her to her
parental home.
During the course of arguments, it was wrongly stated by C.S.P.,
Morar, that the prosecutrix was sent to One Stop Center, on the
verbal orders of the C.J.M., Gwl
(kk) This Court after considering the various facts and circumstances,
has come to a conclusion that the prosecutrix was beaten mercilessly
before her 1st and 2nd supplementary statements.
(ll) The case diary proceedings doesnot contain the steps which were
taken by the investigating officer on 2-2-2021, but the case diary
contains a Medico-Legal Examination Form prepared on 2-2-2021 at
9:30 P.M. and Doctor found Multiple Bruises on B/L thigh and
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
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State of M.P. & Ors.
tenderness as well as bruising and tenderness on left cheek bone,
and mild tenderness behind the ears.
(mm) The Doctor has not given the duration of the injuries but has
cleverly mentioned that as per victim, incident happened 3-4 days
back, whereas in the medical report dated 1-2-2021, it is mentioned
that duration of injuries is 24-48 hours.
(nn) There is material contradictions in the medical report dated 1-
2-2021 and 2-2-2021. In report dated 1-2-2021, the Doctor had
opined 8 abrasions were found, whereas in report dated 2-2-2021,
multiple bruises were found.
The prosecutrix had alleged that she was beaten by police
personals by belt, and her allegations finds corroboration from
Medico-Legal Examination Report dated 2-2-2021.
(oo) Neither the spot map was prepared, nor the room of the
prosecutrix was sealed. The CCTV footage of the house of Ganga
Singh Bhadoria were also not seized, but ample time was granted to
Ganga Singh Bhadoria to provide CCTV footage as per his
convenience. Thus, it is clear that Gana Singh Bhadoria had full
opportunity to manipulate the recording of CCTV footage of his
cameras.
(pp) The Superintendent of Police, Gwalior directed the Add. S.P.
(East) to conduct an enquiry into the allegations of beating by police
personals and to submit the report within 5 days.
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State of M.P. & Ors.
(qq) The Add. S.P. (East) in her turn, assigned the enquiry to C.S.P.,
Morar, which clearly shows a hostile and inhuman attitude of the
police authorities towards to atrocities complained by the rape victim.
(rr) The Add. S.P. (East), even did not care to talk to the Prosecutrix.
(ss) On 3-2-2021, Smt Priti Bhargava, S.H.O. Police Sirol was
assigned investigation, who found that neither the spot map was
prepared nor the video clippings of the statements of the witnesses
are in the case diary.
(tt) On 3-2-2021, the prosecutrix was produced before the High
Court through Video conferencing in a habeas corpus petition and
W.P. No. 2571 of 2021 was heard and reserved on 3-2-2021 and order
was pronounced on 9-2-2021. During the Video Conferencing, the
prosecutrix had expressed her willingness to go to her parental home.
(uu) Ganga Singh Bhadoria was constantly making applications to
Inspector General of Police, Superintendent of Police, and
Investigating Officers. He was in constant touch with Investigating
Officers, and contents of some of his applications indicate that he
was aware of each and every development in the investigation.
(vv) The father of the prosecutrix also made a written complaint to
the Superintendent of Police, which was forwarded to the
Investigating Officer, but one thing is clear that no cognizance of the
complaint of father of the prosecutrix was taken.
(ww) Although Ganga Singh Bhadoria against whom allegations of
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State of M.P. & Ors.
threatening were made by the prosecutrix was not made an accused,
but at the same time, he was personally making applications to the
Investigating Officer and every time it was being written by the
Investigating Officer that Aditya Bhadoria is not found at his
residence. Except that, there is nothing on record to show that any
effort was made by the investigating Aditya Bhadoria.
(xx) Although Ganga Singh Bhadoria was present in the police
station on 31-1-2021 and was in constant touch with the Inspector
General of Police, Superintendent of Police and Investigating Officer,
but his statements were not recorded.
(yy) Right from day one, not only the police was harassing the
Prosecutrix, but had diverted the investigation and from 1-2-2021
was trying hard that the prosecutrix should change her version.
(zz) An attempt was made by the I.O. Smt. Priti Bhargava to obtain
CCTV footage of District Court premises through D.P.O. without
taking the Superintendent of Police in confidence.
(aaa) In Rojnamchasanha even the Court reader was roped in, in
order to develop a false story that the statement of the prosecutrix
under Section 164 of Cr.P.C. was tutored one and was recorded under
pressure.
(bbb) Although there is reference to the information given by
Constable Satyendra that the prosecutrix was tutored inside the Court
premises, but no videography of such an incident was done either by
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
the lady constable or male constable Satyendra.
(ccc) Since, one Sonu Sharma had come to the Court, therefore,
Ganga Singh Bhadoria tried to make a mountain out of a mole.
(ddd) From the allegations in the applications made by Ganga Singh
Bhadoria, it is clear that Ganga Singh Bhadoria was aware of the fact
that the prosecutrix would be taken to the Court for recording of her
statement under Section 164 of Cr.P.C., therefore, he was keeping a
watch and has also provided the photographs of the prosecutrix, Sonu
Sharma, while they were in Court premises.
(eee) The National Commission for Women had also taken
cognizance of beating of the prosecutrix in the police custody and
wrote a letter to D.G.P., State of Madhya Pradesh, asking for action
taking report, but inspite of that the Add. S.P. (East) did not take
pains to conduct the enquiry on her own and assigned the same to
C.S.P., Morar.
(fff) C.S.P., Morar submitted his report dated 12-2-2021, from
which it is clear that after reproducing the statements of witnesses,
directly jumped to a conclusion that there is no proof of beating in
the police station.
(ggg) C.S.P., Morar thereafter, submitted his report, that the
explanation given by S.H.O., Police Station Morar, Ajay Singh Pawar
on certain aspects is not acceptable.
(hhh) However, C.S.P., Morar, again submitted his fresh report on 4-
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
6-2021 to the Add. S.P. (East) which was reproduction of first report.
(iii) On 4-6-2021, Add. S.P. (East) directed her Reader to place the
report along with evidence and documents, but did not take any pains
to even look into the ocular and documentary evidence.
(jjj) From the application dated 28-5-2021, made by Ganga Singh
Bhadoria, it is clear that even police had pressurized the prosecutrix
to vacate the house of Ganga Singh Bhadoria, and that is why, the
father of the prosecutrix had made a complaint of harassment by the
police.
(kkk) Thus, it is clear that the police was interested in destroying the
evidence against Ganga Singh Bhadoria and his grand son Aditya
Bhadoria.
(lll) Although the parents of Aditya Bhadoria are still alive but they
did not come forward in support of Aditya Bhadoria.
(mmm) No steps were taken to apprehend Aditya Bhadoria and
his friends and even no proceedings were initiated under Section 82
and 83 of Cr.P.C. against the culprits inspite of repeated directions by
the Superintendent of Police, Gwalior.
(lnnn)Section 46(4) of Cr.P.C. reads as under :
Section 46. Arrest how made
(4) Save in exceptional circumstances, no woman shall
be arrested after sunset and before sunrise, an where such
exceptional circumstances exist, the woman police officer
shall, by making a written report, obtain the prior
permission of the Judicial Magistrate of the first class
within whose local jurisdiction the offence is committed or
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
the arrest is to be made.
When a woman cannot be arrested after sunset and before
sunrise, then how police can keep a rape victim in the police station
for the whole night? Undisputedly, no orders from the competent
Court were obtained for keeping the rape victim in the police station
for the whole night. No orders from the Senior Officers like
Superintendent of Police or Inspector General of Police were
obtained. Thus, it is clear that the detention of the prosecutrix in the
police station for the whole intervening night of 31-1-2021 and 1-2-
2021 is a glaring example of violation of Fundamental Rights of the
rape victim under Article 21 of the Constitution of India.
(ooo) There is nothing in the case diary dated 1-2-2021, that since,
the prosecutrix refused to leave the police station, therefore She was
kept in Police Station, Morar. Even the case diary proceedings dated
1-2-2021 doesnot contain anything in this regard. The fact of
keeping the prosecutrix in Urja Desk, Police Station Morar is
mentioned in Rojnamchasanha only.
(ppp) As per the medico-legal Examination Form dated 2-2-2021, the
Prosecutrix was referred to Orthopadician, but She was never taken
to Orthopedician.
152. Thus, from the facts and circumstances it is clear that the
prosecutrix is the maid servant of Ganga Singh Bhadoria and
conclusion can be drawn that before the prosecutrix could reach
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Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
Police Station Morar, the ill designs of S.H.O., Police Station
Morar, Ajay Singh Pawar, and Sub-Inspector Kirti Upadhaya had
started taking shape and the prosecutrix was made to wait for near
about 3 hours in the police station and the F.I.R. was lodged
belatedly. Sub-Inspector Kirti Upadhyaya not only did not mention
the allegations made by the prosecutrix against Ganga Singh
Bhadoria in her videographed police statements, but even Ganga
Singh Bhadoria came to police station and he was requested to
provide the recording of CCTV cameras installed in his house,
instead of seizing the same immediately. Even the police did not
visit the place of incident which is the house of Ganga Singh
Bhadoria. The prosecutrix was in fact detained in the Police
Station for the entire night and on the next day, She was
mercilessly beaten and her two supplementary statements were
recorded and every effort was made to compel the prosecutrix to
change her version. Thereafter, when the prosecutrix leveled
allegations of beating by police, the S.H.O, Morar went to the
extent of leveling allegations against the J.M.F.C. and Govt.
Pleader. Even during the course of arguments, the C.S.P., Morar
leveled false allegations against the C.J.M., Gwalior, that he had
verbally directed the C.S.P., Morar to lodge the prosecutrix in One
Stop Center. Multiple bruises were found on the body of the
prosecutrix and inspite of the fact that the house of the prosecutrix
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Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
is situated at a distance of 25 Kms from the police station, but She
was sent to One Stop Center. Even the spot map was not prepared.
No attempts were made to apprehend Aditya Bhadoria and his
friend, but attempts are being made to divert the investigation at
the behest of Ganga Singh Bhadoria. No attempt was made to seal
the room of the prosecutrix and to collect incriminating/material
evidence from the spot.
153. Thus, it is held that the police has not conducted the
investigation in a free and fair manner and the entire efforts of police
are tainted and outcome of its ill design.
Whether the S.H.O., Police Station Morar, Ajay Singh Pawar,
Sub-Inspector Kirti Upadhyaya, and other police officers are
guilty of criminal act or not?
154. This Court after detailed appreciation of facts, has come to a
prima facie conclusion that S.H.O., Police Station Morar, Ajay Singh
Pawar (Shri Ajay Singh Pawar) and Sub-Inspector Kirti Upadhyaya
are directly and indirectly involved in merciless beating of the
prosecutrix in the Police Station. According to the prosecutrix,
initially She was beaten by lady police and on second occasion, even
the Male police also joined hands in beating her. She has also stated
that T.I. had threatened her that She should depose before the
Magistrate in accordance with the wishes of the police department,
otherwise, She has to come back to the police Station and She would
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
be beaten even if She dies.
155. Thus, it is held that Ajay Singh Pawar and Sub-Inspector Kirti
Upadhyaya as well as other police personals are prima facie guilty of
beating the prosecutrix in the police station.
Whether any direction for registration of F.I.R. can be given
against the police personals, specifically when they have not been
made party to this petition?
156. It is a trite law that an accused has no right of pre-audience
before registration of F.I.R.
The Supreme Court in the case of Chandra Deo Singh Vs.
Prakash Chandra Bose reported in (1964) 1 SCR 639 has held as
under :
7. Taking the first ground, it seems to us clear from the
entire scheme of Chapter XVI of the Code of Criminal
Procedure that an accused person does not come into the
picture at all till process is issued. This does not mean that
he is precluded from being present when an enquiry is held
by a Magistrate. He may remain present either in person or
through a counsel or agent with a view to be informed of
what is going on. But since the very question for
consideration being whether he should be called upon to
face an accusation, he has no right to take part in the
proceedings nor has the Magistrate any jurisdiction to
permit him to do so. It would follow from this, therefore,
that it would not be open to the Magistrate to put any
question to witnesses at the instance of the person named as
accused but against whom process has not been issued; nor
can he examine any witnesses at the instance of such a
person. Of course, the Magistrate himself is free to put such
questions to the witnesses produced before him by the
complainant as he may think proper in the interests of
justice. But beyond that, he cannot go......
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
Further, order under Section 156(3) of Cr.P.C. is issued always
at pre-cognizance stage and whenever such an order is issued then the
police has to register the F.I.R. The Supreme Court in the case of
Mohd. Yusuf Vs. Afaq Jahan reported in (2006) 1 SCC 627 has
held as under :
11. The clear position therefore is that any Judicial
Magistrate, before taking cognizance of the offence, can
order investigation under Section 156(3) of the Code. If he
does so, he is not to examine the complainant on oath
because he was not taking cognizance of any offence
therein. For the purpose of enabling the police to start
investigation it is open to the Magistrate to direct the police
to register an FIR. There is nothing illegal in doing so. After
all registration of an FIR involves only the process of
entering the substance of the information relating to the
commission of the cognizable offence in a book kept by the
officer in charge of the police station as indicated in Section
154 of the Code. Even if a Magistrate does not say in so
many words while directing investigation under Section
156(3) of the Code that an FIR should be registered, it is the
duty of the officer in charge of the police station to register
the FIR regarding the cognizable offence disclosed by the
complainant because that police officer could take further
steps contemplated in Chapter XII of the Code only
thereafter.
The Supreme Court in the case of Lalita Kumari Vs. State of
U.P., reported in (2014) 2 SCC 1 has held as under :
120.1. The registration of FIR is mandatory under Section
154 of the Code, if the information discloses commission of
a cognizable offence and no preliminary inquiry is
permissible in such a situation.
The Supreme Court in the case of Satishkumar Nyalchand
Shah v. State of Gujarat, reported in (2020) 4 SCC 22 has held as
under :
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Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
10..........It is required to be noted that, as such, even the
proposed accused Shri Bhaumik shall not have any say at
this stage in an application under Section 173(8) CrPC for
further investigation, as observed by this Court in W.N.
Chadha; Narender G. Goel and Dinubhai Baghabhai
Solanki. In Dinubhai Baghabhai Solanki after considering
another decision of this Court in Sri Bhagwan Samardha
Sreepada Vallabha Venkata Vishwanandha Maharaj v.
State of A.P., it is observed and held that there is nothing in
Section 173(8) CrPC to suggest that the court is obliged to
hear the accused before any direction for further
investigation is made. In Sri Bhagwan Samardha, this Court
in para 11 held as under : (Sri Bhagwan Samardha case,
SCC p. 743)
"11. In such a situation the power of the court to direct
the police to conduct further investigation cannot have
any inhibition. There is nothing in Section 173(8) to
suggest that the court is obliged to hear the accused
before any such direction is made. Casting of any such
obligation on the court would only result in
encumbering the court with the burden of searching
for all the potential accused to be afforded with the
opportunity of being heard. As the law does not
require it, we would not burden the Magistrate with
such an obligation."
The Supreme Court in the case of Dinubhai Boghabhai
Solanki v. State of Gujarat, reported in (2014) 4 SCC 626 has held
as under :
50........These observations make it abundantly clear that it
would not be necessary to give an opportunity of hearing to
the proposed accused as a matter of course. The Court
cautioned that if prior notice and an opportunity of hearing
have to be given in every criminal case before taking any
action against the accused person, it would frustrate the
entire objective of an effective investigation. In the present
case, the appellant was not even an accused at the time
when the impugned order was passed by the High Court.
Finger of suspicion had been pointed at the appellant by
independent witnesses as well as by the grieved father of
the victim.
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
The Supreme Court in the case of Union of India Vs. W.N.
Chadha reported in 1993 Supp (4) SCC 260 has held as under :
89. Applying the above principle, it may be held that when
the investigating officer is not deciding any matter except
collecting the materials for ascertaining whether a prima
facie case is made out or not and a full enquiry in case of
filing a report under Section 173(2) follows in a trial before
the Court or Tribunal pursuant to the filing of the report, it
cannot be said that at that stage rule of audi alteram partem
superimposes an obligation to issue a prior notice and hear
the accused which the statute does not expressly recognise.
The question is not whether audi alteram partem is implicit,
but whether the occasion for its attraction exists at all.
90. Under the scheme of Chapter XII of the Code of
Criminal Procedure, there are various provisions under
which no prior notice or opportunity of being heard is
conferred as a matter of course to an accused person while
the proceeding is in the stage of an investigation by a police
officer.
91. In State of Haryana v. Bhajan Lal this Court to which
both of us (Ratnavel Pandian and K. Jayachandra Reddy,
JJ.) were parties after making reference to the decision of
the Privy Council in Emperor v. Khwaja Nazir Ahmad and
the decision of this Court in State of Bihar v. J.A.C.
Saldanha has pointed out that: (SCC p. 359, para 40)
"... the field of investigation of any cognizable offence
is exclusively within the domain of the investigating
agencies over which the courts cannot have control
and have no power to stifle or impinge upon the
proceedings in the investigation so long as the
investigation proceeds in compliance with the
provisions relating to investigation...."
92. More so, the accused has no right to have any say as
regards the manner and method of investigation. Save under
certain exceptions under the entire scheme of the Code, the
accused has no participation as a matter of right during the
course of the investigation of a case instituted on a police
report till the investigation culminates in filing of a final
report under Section 173(2) of the Code or in a proceeding
instituted otherwise than on a police report till the process is
issued under Section 204 of the Code, as the case may be.
Even in cases where cognizance of an offence is taken on a
complaint notwithstanding that the said offence is triable by
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
a Magistrate or triable exclusively by the Court of Sessions,
the accused has no right to have participation till the process
is issued. In case the issue of process is postponed as
contemplated under Section 202 of the Code, the accused
may attend the subsequent inquiry but cannot participate.
There are various judicial pronouncements to this effect but
we feel that it is not necessary to recapitulate those
decisions. At the same time, we would like to point out that
there are certain provisions under the Code empowering the
Magistrate to give an opportunity of being heard under
certain specified circumstances.
(Underline supplied)
* * * *
98. If prior notice and an opportunity of hearing are to be
given to an accused in every criminal case before taking
any action against him, such a procedure would frustrate the
proceedings, obstruct the taking of prompt action as law
demands, defeat the ends of justice and make the provisions
of law relating to the investigation lifeless, absurd and self-
defeating. Further, the scheme of the relevant statutory
provisions relating to the procedure of investigation does
not attract such a course in the absence of any statutory
obligation to the contrary.
The Supreme Court in the case of Anju Choudhary Vs. State
of U.P. reported in (2013) 6 SCC 384 has held as under :
30. Section 154 of the Code places an unequivocal duty
upon the police officer-in-charge of a police station to
register FIR upon receipt of the information that a
cognizable offence has been committed. It hardly gives any
discretion to the said police officer. The genesis of this
provision in our country in this regard is that he must
register the FIR and proceed with the investigation
forthwith. While the position of law cannot be dispelled in
view of the three-Judge Bench judgment of this Court in
State of U.P. v. Bhagwant Kishore Joshi, a limited discretion
is vested in the investigating officer to conduct a
preliminary inquiry pre-registration of an FIR as there is
absence of any specific prohibition in the Code, express or
implied. The subsequent judgments of this Court have
clearly stated the proposition that such discretion hardly
exists. In fact the view taken is that he is duty-bound to
register an FIR. Then the question that arises is whether a
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Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
suspect is entitled to any pre-registration hearing or any
such right is vested in the suspect.
31. The rule of audi alteram partem is subject to exceptions.
Such exceptions may be provided by law or by such
necessary implications where no other interpretation is
possible. Thus rule of natural justice has an application,
both under the civil and criminal jurisprudence. The laws
like detention and others, specifically provide for post-
detention hearing and it is a settled principle of law that
application of this doctrine can be excluded by exercise of
legislative powers which shall withstand judicial scrutiny.
The purpose of the Criminal Procedure Code and the Penal
Code, 1860 is to effectively execute administration of the
criminal justice system and protect society from perpetrators
of crime. It has a twin purpose; firstly to adequately punish
the offender in accordance with law and secondly, to ensure
prevention of crime. On examination, the scheme of the
Criminal Procedure Code does not provide for any right of
hearing at the time of registration of the first information
report. As already noticed, the registration forthwith of a
cognizable offence is the statutory duty of a police officer-
in-charge of the police station. The very purpose of fair and
just investigation shall stand frustrated if pre-registration
hearing is required to be granted to a suspect. It is not that
the liberty of an individual is being taken away or is being
adversely affected, except by the due process of law. Where
the officer-in-charge of a police station is informed of a
heinous or cognizable offence, it will completely destroy the
purpose of proper and fair investigation if the suspect is
required to be granted a hearing at that stage and is not
subjected to custody in accordance with law. There would
be predominant possibility of a suspect escaping the process
of law. The entire scheme of the Code unambiguously
supports the theory of exclusion of audi alteram partem pre-
registration of an FIR. Upon registration of an FIR, a person
is entitled to take recourse to the various provisions of bail
and anticipatory bail to claim his liberty in accordance with
law. It cannot be said to be a violation of the principles of
natural justice for two different reasons: firstly, the Code
does not provide for any such right at that stage, secondly,
the absence of such a provision clearly demonstrates the
legislative intent to the contrary and thus necessarily
implies exclusion of hearing at that stage. This Court in
Union of India v. W.N. Chadha clearly spelled out this
principle in para 98 of the judgment that reads as under:
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Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
(SCC p. 293)
"98. If prior notice and an opportunity of hearing are
to be given to an accused in every criminal case before
taking any action against him, such a procedure would
frustrate the proceedings, obstruct the taking of prompt
action as law demands, defeat the ends of justice and
make the provisions of law relating to the investigation
lifeless, absurd and self-defeating. Further, the scheme
of the relevant statutory provisions relating to the
procedure of investigation does not attract such a
course in the absence of any statutory obligation to the
contrary."
* * * *
33. While examining the above stated principles in
conjunction with the scheme of the Code, particularly
Sections 154 and 156(3) of the Code, it is clear that the law
does not contemplate grant of any personal hearing to a
suspect who attains the status of an accused only when a
case is registered for committing a particular offence or the
report under Section 173 of the Code is filed terming the
suspect an accused that his rights are affected in terms of
the Code. Absence of specific provision requiring grant of
hearing to a suspect and the fact that the very purpose and
object of fair investigation is bound to be adversely
affected if hearing is insisted upon at that stage, clearly
supports the view that hearing is not any right of any
suspect at that stage.
34. Even in the cases where report under Section 173(2) of
the Code is filed in the court and investigation records the
name of a person in column (2), or even does not name the
person as an accused at all, the court in exercise of its
powers vested under Section 319 can summon the person
as an accused and even at that stage of summoning, no
hearing is contemplated under the law.
The Supreme Court in the case of Samaj Parivartan
Samudaya v. State of Karnataka, reported in (2012) 7 SCC 407
has held as under :
50. There is no provision in CrPC where an investigating
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Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
agency must provide a hearing to the affected party before
registering an FIR or even before carrying on investigation
prior to registration of case against the suspect. CBI, as
already noticed, may even conduct pre-registration inquiry
for which notice is not contemplated under the provisions
of the Code, the Police Manual or even as per the
precedents laid down by this Court. It is only in those cases
where the Court directs initiation of investigation by a
specialised agency or transfer investigation to such agency
from another agency that the Court may, in its discretion,
grant hearing to the suspect or affected parties. However,
that also is not an absolute rule of law and is primarily a
matter in the judicial discretion of the Court. This question
is of no relevance to the present case as we have already
heard the interveners.
Thus, it is clear that unless and until FIR is registered, or
complaint filed under Section 200 of Cr.P.C. is registered and
summons are issued, the accused persons have no say in the matter.
Accordingly, non-joinder of Police Personals in this writ petition,
would not be a hurdle in issuing any direction for registration of
F.I.R.
157. During the course of arguments, a question was asked to the
Superintendent of Police, Gwalior as to whether the act of beating a
rape victim in the police station is a serious act or not and in case, the
allegations are found true, then what action is provided under the law.
Then it was submitted by Shri Amit Sanghi, Superintendent of Police,
Gwalior that beating a rape victim in the police station is a serious act
on the part of the police personals and in such cases, criminal offence
is to be registered against them, apart from Departmental Enquiry.
W.P. No. 5321 of 2021
Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
158. Accordingly, in the light of the reply submitted by Shri
Amit Sanghi, Superintendent of Police, as well in the light of
discussion mentioned above, the Superintendent of Police,
Gwalior is directed to register F.I.R. against S.H.O., Police
Station Morar Ajay Singh Pawar, Sub-Inspector Kirti
Upadhyaya and other unknown police personals for beating the
prosecutrix in the police station. Since, the prosecutrix was
illegally detained in the police station for the whole night,
therefore, offence under Section 341 of I.P.C. and any other
offence which according to S.P., Gwalior is made out, be also
registered. Further, the S.H.O., Police Station Morar, Shri Ajay
Singh Pawar, Sub-Inspector Kirti Upadhyaya and Lady
Constables who had videographed the statements of prosecutrix
are guilty of not keeping the video clippings of the statements of
the prosecutrix properly and in accordance with law and the
same have been transmitted on Whatsapp platform, therefore,
prima facie they are responsible for revealing the identity of the
rape victim, therefore, offence under Section 228-A of I.P.C. be
also registered against them.
159. Further, this Court has already come to a conclusion that
Sub-Inspector Kirti Upadhyaya has made material changes in the
statements of the prosecutrix and other witnesses written by her
under Section 161 of Cr.P.C., therefore, based on the video
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Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
clipping of the statements of prosecutrix and witnesses, it is
directed that offence under Section 467,468, 471 of I.P.C. etc. be
also registered against Sub-Inspector Kirti Upadhyaya.
160. Further, this Court has come to a conclusion that S.H.O.,
Police Station Morar, Ajay Singh Pawar, Sub-Inspector Kirti
Upadhyaya were out and out to help out Ganga Singh Bhadoria
and went to extent of ensuring that the evidence against Ganga
Singh Bhadoria, and his grand son Aditya Bhadoria is not
collected and is destroyed. Thus, they are also prima facie guilty
of offence under Section 201 of I.P.C. The investigating agency
would be free to implicate every public and private person, who
is found involved in commission of aforesaid offences.
161. Further, in view of allegations made by the prosecutrix
against Ganga Singh Bhadoria in her videographed statement
dated 31-1-2021, it is directed that Ganga Singh Bhadoria be also
added as an accused in Crime No. 87/2021 registered at Police
Station Morar and since he had humiliated and threatened the
prosecutrix, therefore, offence under Section 3(1)(r)(s) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989, Section 506 Part II of I.P.C. be also added in addition
to any other offence, which according to Superintendent of
Police, Gwalior is made out against Ganga Singh Bhadoria.
162. The present Investigating Officer is also prima facie found to
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Prosecutrix (Minor) through her Natural Guardian
Vs.
State of M.P. & Ors.
be guilty of negligence and manipulating the investigation and it is
also found that the police has gone to the extent of pressurizing the
prosecutrix to vacate the house of Ganga Singh Bhadoria.
163. So far as the role of C.S.P. Morar is concerned, the same cannot
be said to be in accordance with law. He was already informed by
headquarter of Dial 100 about the incident reported by the
prosecutrix, but even then he did not try to supervise the matter.
Even when he was summoned by the C.J.M., Gwalior, he did not
send the prosecutrix to her parental home and without any order of
the Court or without any order of the Superior Officer, directed for
lodging the prosecutrix in One Stop Center. Thus, the whole
intention of C.S.P., Morar was to some how keep the prosecutrix
away from the rest of the world. Thus, he is prima facie guilty of
dereliction of duties. Further, C.S.P., Morar during the course of
arguments had tried to level allegations against the C.J.M., Gwalior,
by saying that the prosecutrix was lodged in the One Stop Center on
the verbal directions of C.J.M., Gwalior. This explanation was false
because in every document it has been mentioned that the prosecutrix
was sent to One Stop Center on the orders of the C.S.P. Morar.
164. Since, this Court has held that Smt. Suman Gurjar, Add. S.P.
(East), Shri Ajay Singh Pawar (S.H.O., Police Station Morar), Sub-
Inspector Kirti Upadhyaya, Smt. Priti Bhargava (S.H.O., Police
Station Sirol, Distt. Gwalior), C.S.P. Morar have shown undue favor
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State of M.P. & Ors.
to Ganga Singh Bhadoria and has not done the investigation/enquiry
in a free and fair manner, and the Add. S.P. (East) even did not touch
the file of enquiry and instead of conducting an enquiry by herself,
entrusted the same to the C.S.P., Morar, therefore, the Director
General of Police/competent officers are directed to initiate
departmental enquiry against the above mentioned police officers as
well as against those who were involved in beating the rape victim in
the police station.
165. Since, the presence of above mentioned police officers in their
police stations would not be conducive, therefore, the Director
General of Police is directed to transfer all the above mentioned
police officers out of Gwalior and Morena Range immediately.
The prayer 7(1) of the writ petition is answered accordingly.
Whether the Investigating Officer should be changed or the
Investigating Agency should be changed.
166. During the course of arguments, it was submitted by Shri Amit
Sanghi, Superintendent of Police that he may be granted one more
opportunity and he would handover the investigation to another Add.
S.P., who is an IPS Officer and he would personally monitor the
same.
167. Considered the submissions made by Shri Amit Sanghi. It is an
unfortunate case, where the police was listening to the persons
against whom allegations were made and even the rape victim was
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State of M.P. & Ors.
detained in the police station for the whole night and the whole next
day and thereafter without any orders of the Court or Superior
Officers, the prosecutrix was sent to One Stop Center, instead of
sending her to her parental home. Even the prosecutrix was
mercilessly beaten in the police station in order to pressurize her to
change her version. The investigating officer, went to the extent of
pressuring the prosecutrix to vacate the house of Ganga Singh
Bhadoria. The Investigating Officers, even did not care to follow the
instructions of the Superintendent of Police, and no proceedings
under Section 82 and 83 of Cr.P.C. were initiated against the culprits
inspite of the direction of the Superintendent of Police. The
unfortunate part is that when the Superintendent of Police had
already come to know that a serious allegation of beating in the
police station has been leveled by the prosecutrix, even then he did
not talk to the prosecutrix. Even the Add. S.P. (East) did not talk to
the prosecutrix. The applications made by Ganga Singh Bhadoria
were entertained and the entire investigation was done on the
dictations of Ganga Singh Bhadoria, whereas it is settled law, that the
accused has no right to dictate that in what manner the investigation
is to be done.
168. The Supreme Court in the case of Romila Thapar Vs. Union
of India reported in (2018) 10 SCC 753 has held as under :
24. Turning to the first point, we are of the considered
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opinion that the issue is no more res integra. In Narmada
Bai v. State of Gujarat, in para 64, this Court restated that it
is trite law that the accused persons do not have a say in the
matter of appointment of investigating agency. Further, the
accused persons cannot choose as to which investigating
agency must investigate the offence committed by them.
Para 64 of this decision reads thus: (SCC p. 100)
"64. ... It is trite law that the accused persons do not
have a say in the matter of appointment of an
investigating agency. The accused persons cannot
choose as to which investigating agency must
investigate the alleged offence committed by them."
(emphasis supplied)
25. Again in Sanjiv Rajendra Bhatt v. Union of India, the
Court restated that the accused had no right with reference
to the manner of investigation or mode of prosecution. Para
68 of this judgment reads thus: (SCC p. 40)
"68. The accused has no right with reference to the
manner of investigation or mode of prosecution.
Similar is the law laid down by this Court in Union of
India v. W.N. Chadha, Mayawati v. Union of India,
Dinubhai Boghabhai Solanki v. State of Gujarat, CBI
v. Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S.
Chowdhary."
(emphasis supplied)
26. Recently, a three-Judge Bench of this Court in E.
Sivakumar v. Union of India, while dealing with the appeal
preferred by the "accused" challenging the order of the
High Court directing investigation by CBI, in para 10
observed: (SCC pp. 370-71)
"10. As regards the second ground urged by the
petitioner, we find that even this aspect has been duly
considered in the impugned judgment. In para 129 of
the impugned judgment, reliance has been placed on
Dinubhai Boghabhai Solanki v. State of Gujarat,
wherein it has been held that in a writ petition seeking
impartial investigation, the accused was not entitled to
opportunity of hearing as a matter of course. Reliance
has also been placed on Narender G. Goel v. State of
Maharashtra, in particular, para 11 of the reported
decision wherein the Court observed that it is well
settled that the accused has no right to be heard at the
stage of investigation. By entrusting the investigation
to CBI which, as aforesaid, was imperative in the
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State of M.P. & Ors.
peculiar facts of the present case, the fact that the
petitioner was not impleaded as a party in the writ
petition or for that matter, was not heard, in our
opinion, will be of no avail. That per se cannot be the
basis to label the impugned judgment as a nullity."
169. The next question for consideration is that whether only the
accused is entitled for free and fair investigation or whether the
victim is also entitled for free and fair investigation. The Supreme
Court in the case of Nirmal Singh Kahlon Vs. State of Punjab
reported in (2009) 1 SCC 441 has held as under :
28. An accused is entitled to a fair investigation. Fair
investigation and fair trial are concomitant to preservation
of fundamental right of an accused under Article 21 of the
Constitution of India. But the State has a larger obligation
i.e. to maintain law and order, public order and preservation
of peace and harmony in the society. A victim of a crime,
thus, is equally entitled to a fair investigation. When serious
allegations were made against a former Minister of the
State, save and except the cases of political revenge
amounting to malice, it is for the State to entrust one or the
other agency for the purpose of investigating into the
matter. The State for achieving the said object at any point
of time may consider handing over of investigation to any
other agency including a Central agency which has acquired
specialisation in such cases.
The Supreme Court in the case of Zahira Habibulla H.
Sheikh v. State of Gujarat, reported in (2004) 4 SCC 158 has held
as under :
18.......When the investigating agency helps the accused,
the witnesses are threatened to depose falsely and the
prosecutor acts in a manner as if he was defending the
accused, and the court was acting merely as an onlooker
and when there is no fair trial at all, justice becomes the
victim.
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State of M.P. & Ors.
170. It is true that an accused is also entitled for free and fair
investigation, but under the garb of free and fair investigation, the
police personals cannot go to the extent of harassing the rape victim,
as well as beating her in the police station in order to pressurize her
to change her version, as well as deliberately omitting the allegations
in the statement of the rape victim in order to save accused.
171. Thus, it is clear that the police personals have not only acted on
the dictations of Ganga Singh Bhadoria, but also diverted the
investigation right from the very beginning as per the dictations of
Ganga Singh Bhadoria. Therefore, the submission made by the
Superintendent of Police, Gwalior to give one more chance to change
the Investigating Officer cannot be accepted, specifically when the
police officers are involved and the entire attempt of the police
officers is to save its officers and to prove that the prosecutrix has
made false allegations at the behest of other persons.
Whether this Court can suo motu direct for transfer of
investigation to other Agency or not?
172. The Supreme Court in the case of D.K. Basu Vs. State of W.B.
reported in (1997) 1 SCC 416 has held as under :
9. The importance of affirmed rights of every human being
need no emphasis and, therefore, to deter breaches thereof
becomes a sacred duty of the Court, as the custodian and
protector of the fundamental and the basic human rights of
the citizens. Custodial violence, including torture and death
in the lock-ups, strikes a blow at the rule of law, which
demands that the powers of the executive should not only
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Vs.
State of M.P. & Ors.
be derived from law but also that the same should be
limited by law. Custodial violence is a matter of concern. It
is aggravated by the fact that it is committed by persons
who are supposed to be the protectors of the citizens. It is
committed under the shield of uniform and authority in the
four walls of a police station or lock-up, the victim being
totally helpless. The protection of an individual from
torture and abuse by the police and other law-enforcing
officers is a matter of deep concern in a free society. These
petitions raise important issues concerning police powers,
including whether monetary compensation should be
awarded for established infringement of the Fundamental
Rights guaranteed by Articles 21 and 22 of the Constitution
of India. The issues are fundamental.
10. "Torture" has not been defined in the Constitution or in
other penal laws. "Torture" of a human being by another
human being is essentially an instrument to impose the will
of the "strong" over the "weak" by suffering. The word
torture today has become synonymous with the darker side
of human civilisation.
"Torture is a wound in the soul so painful that
sometimes you can almost touch it, but it is also so
intangible that there is no way to heal it. Torture is
anguish squeezing in your chest, cold as ice and heavy
as a stone, paralyzing as sleep and dark as the abyss.
Torture is despair and fear and rage and hate. It is a
desire to kill and destroy including yourself."
-- Adriana P. Bartow
11. No violation of any one of the human rights has been
the subject of so many Conventions and Declarations as
"torture" -- all aiming at total banning of it in all forms, but
in spite of the commitments made to eliminate torture, the
fact remains that torture is more widespread now than ever
before. "Custodial torture" is a naked violation of human
dignity and degradation which destroys, to a very large
extent, the individual personality. It is a calculated assault
on human dignity and whenever human dignity is wounded,
civilisation takes a step backward -- flag of humanity must
on each such occasion fly half-mast.
12. In all custodial crimes what is of real concern is not
only infliction of body pain but the mental agony which a
person undergoes within the four walls of police station or
lock-up. Whether it is physical assault or rape in police
custody, the extent of trauma, a person experiences is
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State of M.P. & Ors.
beyond the purview of law.
13. "Custodial violence" and abuse of police power is not
only peculiar to this country, but it is widespread. It has
been the concern of international community because the
problem is universal and the challenge is almost global. The
Universal Declaration of Human Rights in 1948, which
marked the emergence of a worldwide trend of protection
and guarantee of certain basic human rights, stipulates in
Article 5 that: "No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment."
Despite the pious declaration the crime continues unabated,
though every civilised nation shows its concern and takes
steps for its eradication.
The Supreme Court in the case of State of W.B. v. Committee
for Protection of Democratic Rights, reported in (2010) 3 SCC 571
has held as under :
68. Thus, having examined the rival contentions in the
context of the constitutional scheme, we conclude as
follows:
(i) The fundamental rights, enshrined in Part III of the
Constitution, are inherent and cannot be extinguished
by any constitutional or statutory provision. Any law
that abrogates or abridges such rights would be
violative of the basic structure doctrine. The actual
effect and impact of the law on the rights guaranteed
under Part III has to be taken into account in
determining whether or not it destroys the basic
structure.
(ii) Article 21 of the Constitution in its broad
perspective seeks to protect the persons of their lives
and personal liberties except according to the
procedure established by law. The said article in its
broad application not only takes within its fold
enforcement of the rights of an accused but also the
rights of the victim. The State has a duty to enforce the
human rights of a citizen providing for fair and
impartial investigation against any person accused of
commission of a cognizable offence, which may
include its own officers. In certain situations even a
witness to the crime may seek for and shall be granted
protection by the State.
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State of M.P. & Ors.
(iii) In view of the constitutional scheme and the
jurisdiction conferred on this Court under Article 32
and on the High Courts under Article 226 of the
Constitution the power of judicial review being an
integral part of the basic structure of the Constitution,
no Act of Parliament can exclude or curtail the powers
of the constitutional courts with regard to the
enforcement of fundamental rights. As a matter of fact,
such a power is essential to give practicable content to
the objectives of the Constitution embodied in Part III
and other parts of the Constitution. Moreover, in a
federal constitution, the distribution of legislative
powers between Parliament and the State Legislature
involves limitation on legislative powers and,
therefore, this requires an authority other than
Parliament to ascertain whether such limitations are
transgressed. Judicial review acts as the final arbiter
not only to give effect to the distribution of legislative
powers between Parliament and the State Legislatures,
it is also necessary to show any transgression by each
entity. Therefore, to borrow the words of Lord Steyn,
judicial review is justified by combination of "the
principles of separation of powers, rule of law, the
principle of constitutionality and the reach of judicial
review".
(iv) If the federal structure is violated by any
legislative action, the Constitution takes care to protect
the federal structure by ensuring that the Courts act as
guardians and interpreters of the Constitution and
provide remedy under Articles 32 and 226, whenever
there is an attempted violation. In the circumstances,
any direction by the Supreme Court or the High Court
in exercise of power under Article 32 or 226 to uphold
the Constitution and maintain the rule of law cannot be
termed as violating the federal structure.
(v) Restriction on Parliament by the Constitution and
restriction on the executive by Parliament under an
enactment, do not amount to restriction on the power
of the Judiciary under Articles 32 and 226 of the
Constitution.
(vi) If in terms of Entry 2 of List II of the Seventh
Schedule on the one hand and Entry 2-A and Entry 80
of List I on the other, an investigation by another
agency is permissible subject to grant of consent by
the State concerned, there is no reason as to why, in an
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State of M.P. & Ors.
exceptional situation, the Court would be precluded
from exercising the same power which the Union
could exercise in terms of the provisions of the statute.
In our opinion, exercise of such power by the
constitutional courts would not violate the doctrine of
separation of powers. In fact, if in such a situation the
Court fails to grant relief, it would be failing in its
constitutional duty.
(vii) When the Special Police Act itself provides that
subject to the consent by the State, CBI can take up
investigation in relation to the crime which was
otherwise within the jurisdiction of the State police,
the Court can also exercise its constitutional power of
judicial review and direct CBI to take up the
investigation within the jurisdiction of the State. The
power of the High Court under Article 226 of the
Constitution cannot be taken away, curtailed or diluted
by Section 6 of the Special Police Act. Irrespective of
there being any statutory provision acting as a
restriction on the powers of the Courts, the restriction
imposed by Section 6 of the Special Police Act on the
powers of the Union, cannot be read as restriction on
the powers of the constitutional courts. Therefore,
exercise of power of judicial review by the High
Court, in our opinion, would not amount to
infringement of either the doctrine of separation of
power or the federal structure.
The Supreme Court in the case of State of Punjab v. Central
Bureau of Investigation and Ors., reported in (2011) 9 SCC 182
has held as under:-
"30. In the peculiar facts and circumstances of the case, the
High Court felt that justice would not be done to the case if
the investigation stays in the hands of the local police and
for these reasons directed that the investigation of the case
be handed over to the CBI. The narration of the facts and
circumstances in paragraphs 2 to 9 of this judgment also
support the conclusion of the High Court that investigation
by an independent agency such as the CBI was absolutely
necessary in the interests of justice.
31. Moreover, even though the High Court in the impugned
order dated 11.12.2007 did make a mention that in case
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challan has been filed, then the petition will stand as having
become infructuous in the order dated 12.12.2007, the High
Court has stayed further proceedings before the trial court
in the case arising out of FIR No.82 of PS City I, Moga, till
further orders. Thus, the High Court was of the view that
even though investigation is complete in one case and
charge sheet has been filed by the Police, it was necessary
in the ends of justice that the CBI should carry out an
investigation into the case.
32. In the recent case of State of West Bengal and Others v.
Committee for Protection of Democratic Rights, West
Bengal and Others [(2010) 3 SCC 571] a Constitution
Bench of this Court, while holding that no Act of
Parliament can exclude or curtail the powers of the High
Court under Article 226 of the Constitution, has cautioned
that the extra-ordinary powers of the High Court under
Article 226 of the Constitution must be exercised sparingly,
cautiously and in exceptional situations where it becomes
necessary to provide credibility and confidence in
investigation or where the incident may have national or
international ramifications or where such an order may be
necessary for doing complete justice and enforcing
fundamental rights. This caution equally applies to the
cases where the High Court exercises inherent powers
under Section 482 CrPC to direct investigation by CBI for
securing the ends of justice.
33. In the facts and circumstances of this case, however, the
High Court has held that the state local police was unable to
carry out investigation into the cases and for securing the
ends of justice the investigation has to be handed over to
the CBI. In other words, this was one of those extraordinary
cases where the direction of the High Court for
investigation by the CBI was justified."
173. Although the petitioner has only prayed for change of
Investigating officer, but as the petitioner had no access to the case
diary, therefore, She was not aware of the fact that in what manner
the police has manipulated the investigation. But once, this Court
has come to a conclusion that the Police Officers were doing tainted
investigation with oblique motive, then this Court would be failing in
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State of M.P. & Ors.
discharging its Constitution obligation to uphold the life and liberty
of a rape victim, if the local police is still permitted to continue with
the investigation.
174. The Supreme Court in the case of R.S. Sodhi v. State of U.P.
reported in 1994 Supp (1) SCC 143 has held as under :
2........We have perused the events that have taken place
since the incidents but we are refraining from entering upon
the details thereof lest it may prejudice any party but we
think that since the accusations are directed against the local
police personnel it would be desirable to entrust the
investigation to an independent agency like the Central
Bureau of Investigation so that all concerned including the
relatives of the deceased may feel assured that an
independent agency is looking into the matter and that
would lend the final outcome of the investigation
credibility. However faithfully the local police may carry
out the investigation, the same will lack credibility since the
allegations are against them. It is only with that in mind that
we having thought it both advisable and desirable as well as
in the interest of justice to entrust the investigation to the
Central Bureau of Investigation forthwith and we do hope
that it would complete the investigation at an early date so
that those involved in the occurrences, one way or the other,
may be brought to book. We direct accordingly.
The Supreme Court in the case of Kashmeri Devi v. Delhi
Admn., reported in 1988 Supp SCC 482 has held as under :
5. After hearing learned counsel for the parties and on
perusal of the record we are satisfied that prima facie the
police have not acted in a forthright manner in investigating
the case, registered on the complaint of Sudesh Kumar. The
circumstances available on record prima facie show that
effort has been made to protect and shield the guilty officers
of the police who are alleged to have perpetrated the
barbaric offence of murdering Gopi Ram by beating and
torturing. The appellant has been crying hoarse to get the
investigation done by an independent authority but none
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State of M.P. & Ors.
responded to her complaint. The Additional Sessions Judge
while considering the bail application of Jagmal Singh,
Constable, considered the autopsy report and observed that
doctor had postponed giving his opinion regarding the
cause of death although the injuries were ante-mortem. The
learned Sessions Judge referring to a number of
circumstances observed that the investigating officer had
converted the case from Section 302 IPC to Section 304
IPC on flimsy grounds within hours of the registration of
the case even without waiting for the post-mortem report.
The learned Sessions Judge further observed that it was a
prima facie case of deliberate murder of an innocent
illiterate poor citizen of Delhi in police custody and
investigation was partisan.
6. We are in full agreement with the observations made by
the learned Sessions Judge. As already noted during the
pendency of the writ petition before the High Court and
special leave petition before this Court the case was further
converted from Section 304 IPC to Section 323/34 IPC.
Prima facie the police has acted in partisan manner to shield
the real culprits and the investigation of the case has not
been done in a proper and objective manner. We are
therefore of the opinion that in the interest of justice it is
necessary to get a fresh investigation made through an
independent authority so that truth may be known.
The Supreme Court in the case of Rubabbuddin Sheikh v.
State of Gujarat, reported in (2010) 2 SCC 200 has held as under :
80. We have already discussed the decisions cited from the
Bar on the question that after the charge-sheet being filed
whether the investigation could be handed over to the CBI
Authorities or to any other independent agency from the
State police authorities. We have already distinguished the
decisions cited by the State that they related to the power of
the court to monitor the investigation after the charge-sheet
was filed. The scope of this order, however, cannot deal
with the power of this Court to monitor the investigation,
but on the other hand in order to make sure that justice is
not only done, but also is seen to be done and considering
the involvement of the State police authorities and
particularly the high officials of the State of Gujarat, we are
compelled even at this stage to direct the CBI Authorities to
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State of M.P. & Ors.
investigate into the matter. Since the high police officials of
the State of Gujarat are involved and some of them had
already been in custody, we are also of the view that it
would not be sufficient to instil confidence in the minds of
the victims as well as of the public that still the State police
authorities would be allowed to continue with the
investigation when allegations and offences were mostly
against them.
81. In the present circumstances and in view of the
involvement of the police officials of the State in this crime,
we cannot shut our eyes and direct the State police
authorities to continue with the investigation and the
charge-sheet and for a proper and fair investigation, we also
feel that CBI should be requested to take up the
investigation and submit a report in this Court within six
months from the date of handing over a copy of this
judgment and the records relating to this crime to them.
The Supreme Court in the case of Mithilesh Kumar Singh v.
State of Rajasthan reported in (2015) 9 SCC 795 has held as under :
12. Even so the availability of power and its exercise are
two distinct matters. This Court does not direct transfer of
investigation just for the asking nor is transfer directed only
to satisfy the ego or vindicate the prestige of a party
interested in such investigation. The decision whether
transfer should or should not be ordered rests on the
Court's satisfaction whether the facts and circumstances of
a given case demand such an order. No hard-and-fast rule
has been or can possibly be prescribed for universal
application to all cases. Each case will obviously depend
upon its own facts. What is important is that the Court
while exercising its jurisdiction to direct transfer remains
sensitive to the principle that transfers are not ordered just
because a party seeks to lead the investigator to a given
conclusion. It is only when there is a reasonable
apprehension about justice becoming a victim because of
shabby or partisan investigation that the Court may step in
and exercise its extraordinary powers. The sensibility of the
victims of the crime or their next of kin is not wholly
irrelevant in such situations. After all transfer of
investigation to an outside agency does not imply that the
transferee agency will necessarily, much less falsely
implicate anyone in the commission of the crime. That is
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State of M.P. & Ors.
particularly so when transfer is ordered to an outside
agency perceived to be independent of influences,
pressures and pulls that are commonplace when State
Police investigates matters of some significance. The
confidence of the party seeking transfer in the outside
agency in such cases itself rests on the independence of
that agency from such or similar other considerations. It
follows that unless the Court sees any design behind the
prayer for transfer, the same must be seen as an attempt
only to ensure that the truth is discovered. The hallmark of
a transfer is the perceived independence of the transferee
more than any other consideration. Discovery of truth is the
ultimate purpose of any investigation and who can do it
better than an agency that is independent.
* * * *
15. Suffice it to say that transfers have been ordered in
varied situations but while doing so the test applied by the
Court has always been whether a direction for transfer, was
keeping in view the nature of allegations, necessary with a
view to making the process of discovery of truth credible.
What is important is that this Court has rarely, if ever,
viewed at the threshold the prayer for transfer of
investigation to CBI with suspicion. There is no reluctance
on the part of the Court to grant relief to the victims or their
families in cases, where intervention is called for, nor is it
necessary for the petitioner seeking a transfer to make out a
cast-iron case of abuse or neglect on the part of the State
Police, before ordering a transfer. Transfer can be ordered
once the Court is satisfied on the available material that
such a course will promote the cause of justice, in a given
case.
175. If the fact of this case are considered, then it is clear that the
police officers of Police Station Morar and Sirol are involved in
tainted investigation with oblique motive. Even the Add. S.P. (East)
did not show any interest in conducting an enquiry into the
allegations of merciless beating of the rape victim inside the police
station. Even the C.J.M., Gwalior directed for transfer of
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State of M.P. & Ors.
investigation to some other officer, but still the things did not
improve, and even the changed investigating officer started dancing
to the tunes of Ganga Singh Bhadoria. Under these circumstances,
this Court is left with no other option but to direct for transfer of
investigation of Crime No. 87/2021 registered at Police Station
Morar, Distt. Gwalior to CBI. The Superintendent of Police,
Gwalior is directed to handover the entire original documents
including the file of Add. S.P. (East) to the CBI. The Director of
CBI, is directed to assign this investigation to a Senior Officer.
176. It is made clear that facts of the case have been considered in
detail in order to find out as to whether the investigation which was
being done by the police was free and fair or was tainted one.
Therefore, all the observations are confined to this writ petition only,
and the Investigating Officer is directed to investigate the matter in a
free and fair manner.
177. CBI is also directed to collect the record of phone calls of
Ganga Singh Bhadoria, Add. S.P. (East), C.S.P., Morar, S.H.O. Police
Station Morar Ajay Singh Pawar, S.H.O., Police Station Sirol Smt.
Priti Bhargava, Sub-Inspector Kirti Upadhyaya from 31-1-2021
onwards to find out that for how many times, Ganga Singh Bhadoria
had talked to the above mentioned officers. If it is found that Ganga
Singh Bhadoria was in touch with any of the above mentioned Police
Officer, then not only the CDRs shall be immediately forwarded to
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the Director General Of Police, State of Madhya Pradesh for taking
immediate action against the erring police officer under Service Law,
but the CBI shall also register the offence under Section 201 etc. of
I.P.C.
178. Before parting with this order, this Court would like to deal
with the CCTV cameras installed in Police Station Morar, which
were reported to be out of order.
179. In the enquiry report submitted by Shri R.N. Pachouri, C.S.P.,
Morar, it is mentioned that the CCTV Cameras installed in Police
Station Morar are out of order from 25-7-2020. Thus,it is clear that
the Superintendent of Police, Gwalior, C.S.P., Morar, S.H.O., Police
Station Morar, Ajay Singh Pawar and Incharge CCTV Camera, Police
Control Room, Gwalior did not ensure that the CCTV cameras
installed in the Police Station should remain in working condition.
180. The Supreme Court in the case of D.K. Basu v. State of W.B.,
reported in (2015) 8 SCC 744 has held as under :
31. There are, apart from the above, few other
recommendations made by the Amicus like installation of
CCTV cameras in all police stations and prisons in a phased
manner, and appointment of non-official visitors to prisons
and police stations for making random and surprise
inspections. Initiation of human proceedings under Sections
302/304 IPC in each case where the enquiry establishes
culpability in custodial death and framing of uniform
definition of custodial death and mandatory deployment of
at least two women constables in each district are also
recommended by the Amicus.
32. As regards installation of CCTV cameras in police
stations and prisons, with a view to checking human rights
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abuse, it is heartening to note that all the States have in their
affidavits supported the recommendation for installation of
CCTV cameras in police stations and prisons. In some of
the States, steps appear to have already been initiated in that
direction. In the State of Bihar, CCTV cameras in all prisons
and in 44 police stations in the State have already been
installed. So also the State of Tamil Nadu plans to equip all
police stations with CCTV cameras. The State of Haryana
has stated that CCTV cameras should be installed in all
police stations, especially, at the entrance and in the
lockups. The Union Territories of Andaman & Nicobar and
Puducherry have also installed CCTV cameras in most of
the police stations. Some other States also appear to be
taking steps to do so. Some of the States have, however,
remained silent and non-committal on the issue.
33. We do not for the present consider it necessary to issue a
direction for installation of CCTV cameras in all police
stations. We are of the opinion that the matter cannot be left
to be considered by the State Governments concerned,
having regard to the fact that several other State
Governments have already taken action in that direction
which we consider is commendable. All that we need say is
that the State Governments may consider taking an
appropriate decision in this regard, and appropriate action
wherever it is considered feasible to install CCTV cameras
in police stations. Some of these police stations may be
located in sensitive areas prone to human rights violation.
The States would, therefore, do well in identifying such
police stations in the first instance and providing the
necessary safeguard against such violation by installing
CCTV cameras in the same. The process can be completed
in a phased manner depending upon the nature and the
extent of violation and the experience of the past.
34. In regard to CCTV cameras in prison, we see no reason
why all the States should not do so. CCTV cameras will
help go a long way in preventing violation of human rights
of those incarcerating in jails. It will also help the
authorities in maintaining proper discipline among the
inmates and taking corrective measures wherever abuses are
noticed. This can be done in our opinion expeditiously and
as far as possible within a period of one year from the date
of this order.
The Supreme Court in the case of Shafhi Mohd. v. State of
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H.P.,reported in (2018) 5 SCC 311 has held as under :
9. We are in agreement with the Report of the Committee of
Experts that videography of crime scene during
investigation is of immense value in improving
administration of criminal justice. A Constitution Bench of
this Court in Karnail Singh v. State of Haryana, SCC para
34 noted that technology is an important part in the system
of police administration. It has also been noted in the
decisions quoted in the earlier part of this order that new
techniques and devices have evidentiary advantages, subject
to the safeguards to be adopted. Such techniques and
devices are the order of the day. Technology is a great tool
in investigation. By the videography, crucial evidence can
be captured and presented in a credible manner.
10. Thus, we are of the considered view that
notwithstanding the fact that as of now investigating
agencies in India are not fully equipped and prepared for the
use of videography, the time is ripe that steps are taken to
introduce videography in investigation, particularly for
crime scene as desirable and acceptable best practice as
suggested by the Committee of the MHA to strengthen the
Rule of Law. We approve the Centrally Driven Plan of
Action prepared by the Committee and the timeline as
mentioned above. Let the consequential steps for
implementation thereof be taken at the earliest.
11. We direct that with a view to implement the Plan of
Action prepared by the Committee, a Central Oversight
Body (COB) be set up by the MHA forthwith. The COB
may issue directions from time to time. Suggestions of the
Committee in its report may also be kept in mind. The COB
will be responsible for further planning and implementation
of use of videography. We direct the Central Government to
give full support to the COB and place necessary funds at
its disposal. We also direct that the COB may issue
appropriate directions so as to ensure that use of
videography becomes a reality in a phased manner and in
first phase of implementation by 15-7-2018 crime scene
videography must be introduced at least at some places as
per viability and priority determined by the COB.
12. We place on record the suggestion of the learned Amicus
Curiae that funding for this project may be initially by the
Center to the extent possible and a central server may be set
up. These suggestions may be considered by the COB. We
also note that law and order is a State subject.
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13. We may also refer to a connected issue already dealt
with by this Court in D.K. Basu v. State of W.B. This Court
directed that with a view to check human rights abuse
CCTV cameras be installed in all police stations as well as
in prisons. There is need for a further direction that in every
State an oversight mechanism be created whereby an
independent committee can study the CCTV camera
footages and periodically publish report of its observations.
Let the COB issue appropriate instructions in this regard at
the earliest. The COB may also compile information as to
compliance of such instructions in the next three months
and give a report to this Court.
The Supreme Court in the case of Paramvir Singh Saini Vs.
Baljit Singh reported in (2021) 1 SCC 184 has held as under :
8. The majority of the compliance affidavits and Action-
Taken Reports fail to disclose the exact position of CCTV
cameras qua each police station. The affidavits are bereft of
details with respect to the total number of police stations
functioning in the respective State and Union Territory;
total number of CCTV cameras installed in each and every
police station; the positioning of the CCTV cameras already
installed; working condition of the CCTV cameras; whether
the CCTV cameras have a recording facility, if yes, then for
how many days/hours, have not been disclosed. Further, the
position qua constitution of Oversight Committees in
accordance with the order dated 3-4-2018 2, and/or details
with respect to the Oversight Committees already
constituted in the respective States and Union Territories
have also not been disclosed.
9. Compliance affidavits by all the States and Union
Territories are to be filed, as has been stated earlier, by
either the Principal Secretary of the State or the Secretary,
Home Department of the States/Union Territories. This is to
be done by all the States and Union Territories, including
those who have filed so-called compliance affidavits till
date, stating the details mentioned in para 8 of this order.
These affidavits are to be filed within a period of six weeks
from today.
10. So far as constitution of Oversight Committees in
accordance with our order dated 3-4-2018 is concerned, this
should be done at the State and district levels. The State
Level Oversight Committee (hereinafter referred to as "the
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SLOC") must consist of:
(i) The Secretary/Additional Secretary, Home
Department;
(ii) Secretary/Additional Secretary, Finance
Department;
(iii) The Director General/Inspector General of Police;
and
(iv) The Chairperson/member of the State Women's
Commission.
11. So far as the District Level Oversight Committee
(hereinafter referred to as "DLOC") is concerned, this
should comprise of:
(i) The Divisional Commissioner/Commissioner of
Divisions/Regional Commissioner/Revenue
Commissioner Division of the District (by whatever
name called);
(ii) The District Magistrate of the District;
(iii) A Superintendent of Police of that District; and
(iv) A mayor of a municipality within the District/a
Head of the Zila Panchayat in rural areas.
12. It shall be the duty of the SLOC to see that the
directions passed by this Court are carried out. Amongst
others, the duties shall consist of:
(a) Purchase, distribution and installation of CCTVs
and its equipment;
(b) Obtaining the budgetary allocation for the same;
(c) Continuous monitoring of maintenance and upkeep
of CCTVs and its equipment;
(d) Carrying out inspections and addressing the grievances
received from the DLOC; and
(e) To call for monthly reports from the DLOC and
immediately address any concerns like faulty equipment.
Likewise, the DLOC shall have the following obligations:
(a) Supervision, maintenance and upkeep of CCTVs
and its equipment;
(b) Continuous monitoring of maintenance and upkeep
of CCTVs and its equipment;
(c) To interact with the Station House Officer
(hereinafter referred to as "the SHO") as to the
functioning and maintenance of CCTVs and its
equipment; and
(d) To send monthly reports to the SLOC about the
functioning of CCTVs and allied equipment.
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(e) To review footage stored from CCTVs in the
various police stations to check for any human rights
violation that may have occurred but are not reported.
13. It is obvious that none of this can be done without
allocation of adequate funds for the same, which must be
done by the States'/Union Territories' Finance Departments
at the very earliest.
14. The duty and responsibility for the working,
maintenance and recording of CCTVs shall be that of the
SHO of the police station concerned. It shall be the duty
and obligation of the SHO to immediately report to the
DLOC any fault with the equipment or malfunctioning of
CCTVs. If the CCTVs are not functioning in a particular
police station, the SHO concerned shall inform the DLOC
of the arrest/interrogations carried out in that police station
during the said period and forward the said record to the
DLOC. If the SHO concerned has reported malfunctioning
or non-functioning of CCTVs of a particular police station,
the DLOC shall immediately request the SLOC for repair
and purchase of the equipment, which shall be done
immediately.
15. The Director General/Inspector General of Police of
each State and Union Territory should issue directions to
the person in charge of a police station to entrust the SHO
of the police station concerned with the responsibility of
assessing the working condition of the CCTV cameras
installed in the police station and also to take corrective
action to restore the functioning of all non-functional
CCTV cameras. The SHO should also be made responsible
for CCTV data maintenance, backup of data, fault
rectification, etc.
16. The State and Union Territory Governments should
ensure that CCTV cameras are installed in each and every
police station functioning in the respective State and/or
Union Territory. Further, in order to ensure that no part of a
police station is left uncovered, it is imperative to ensure
that CCTV cameras are installed at all entry and exit points;
main gate of the police station; all lock-ups; all corridors;
lobby/the reception area; all verandahs/outhouses,
Inspector's room; Sub-Inspector's room; areas outside the
lock-up room; station hall; in front of the police station
compound; outside (not inside) washrooms/toilets; Duty
Officer's room; back part of the police station, etc.
17. CCTV systems that have to be installed must be
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equipped with night vision and must necessarily consist of
audio as well as video footage. In areas in which there is
either no electricity and/or internet, it shall be the duty of
the States/Union Territories to provide the same as
expeditiously as possible using any mode of providing
electricity, including solar/wind power. The internet
systems that are provided must also be systems which
provide clear image resolutions and audio. Most important
of all is the storage of CCTV camera footage which can be
done in digital video recorders and/or network video
recorders. CCTV cameras must then be installed with such
recording systems so that the data that is stored thereon
shall be preserved for a period of 18 months. If the
recording equipment, available in the market today, does
not have the capacity to keep the recording for 18 months
but for a lesser period of time, it shall be mandatory for all
States, Union Territories and the Central Government to
purchase one which allows storage for the maximum period
possible, and, in any case, not below 1 year. It is also made
clear that this will be reviewed by all the States so as to
purchase equipment which is able to store the data for 18
months as soon as it is commercially available in the
market. The affidavit of compliance to be filed by all States
and Union Territories and Central Government shall clearly
indicate that the best equipment available as of date has
been purchased.
18. Whenever there is information of force being used at
police stations resulting in serious injury and/or custodial
deaths, it is necessary that persons be free to complain for a
redressal of the same. Such complaints may not only be
made to the State Human Rights Commission, which is then
to utilise its powers, more particularly under Sections 17
and 18 of the Protection of Human Rights Act, 1993, for
redressal of such complaints, but also to Human Rights
Courts, which must then be set up in each district of every
State/Union Territory under Section 30 of the aforesaid Act.
The Commission/Court can then immediately summon
CCTV camera footage in relation to the incident for its safe
keeping, which may then be made available to an
investigating agency in order to further process the
complaint made to it.
19. The Union of India is also to file an affidavit in which it
will update this Court on the constitution and workings of
the Central Oversight Body, giving full particulars thereof.
In addition, the Union of India is also directed to install
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CCTV cameras and recording equipment in the offices of:
(i) Central Bureau of Investigation (CBI)
(ii) National Investigation Agency (NIA)
(iii) Enforcement Directorate (ED)
(iv) Narcotics Control Bureau (NCB)
(v) Department of Revenue Intelligence (DRI)
(vi) Serious Fraud Investigation Office (SFIO)
(vii) Any other agency which carries out interrogations and has
the power of arrest.
As most of these agencies carry out interrogation in their
office(s), CCTVs shall be compulsorily installed in all
offices where such interrogation and holding of accused
takes place in the same manner as it would in a police
station.
20. The COB shall perform the same function as the
SLOC for the offices of investigative/enforcement
agencies mentioned above both in Delhi and outside
Delhi wherever they be located.
21. The SLOC and the COB (where applicable) shall
give directions to all police stations,
investigative/enforcement agencies to prominently
display at the entrance and inside the police
stations/offices of investigative/enforcement agencies
about the coverage of the premises concerned by
CCTV. This shall be done by large posters in English,
Hindi and vernacular language. In addition to the
above, it shall be clearly mentioned therein that a
person has a right to complain about human rights
violations to the National/State Human Rights
Commission, Human Rights Court or the
Superintendent of Police or any other authority
empowered to take cognizance of an offence. It shall
further mention that CCTV footage is preserved for a
certain minimum time period, which shall not be less
than six months, and the victim has a right to have the
same secured in the event of violation of his human
rights.
22. Since these directions are in furtherance of the
fundamental rights of each citizen of India guaranteed
under Article 21 of the Constitution, and since nothing
substantial has been done in this regard for a period of
over 2½ years since our first order dated 3-4-2018, the
Executive/Administrative/police authorities are to
implement this order both in letter and in spirit as soon
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as possible. Affidavits will be filed by the Principal
Secretary/Cabinet Secretary/Home Secretary of each
State/Union Territory giving this Court a firm action
plan with exact timelines for compliance with today's
order. This is to be done within a period of six weeks
from today.
181. The above judgment was passed by the Supreme Court on 02-
12-2020 and a specific direction was given to comply the directions
within a period of six weeks, but unfortunately, due to hostile attitude
of the District Police, Gwalior towards the directions issued by the
Highest Court of the Country, they did not even try to put the CCTV
cameras in working orders which are already installed in the police
station .
182. Accordingly, the Director General of Police, State of Madhya
Pradesh is directed to immediately implement the directions given by
the Supreme Court in the case of Paramvir Singh (Supra). The
Superintendent of Police, Gwalior is directed to ensure that every
Police Station situated within his jurisdiction has not only the CCTV
cameras in working order but the cameras must be installed in such a
manner that every room of the concerning Police Station is covered
by the CCTV camera.
183. The CBI is directed to provide full protection to the prosecutrix
and must ensure that not only her pride and dignity is maintained but
She is not pressurized in any manner. Even otherwise, the Supreme
Court in the case of Mahender Chawla Vs Union of India, reported
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in (2019) 14 SCC 615 has formulated a Witness Protection Scheme.
184. Since, the petitioner has not prayed for payment of
compensation for violation of her Fundamental Rights under Article
21 of the Constitution of India, therefore, liberty is granted to her to
pursue such relief in appropriate forum.
185. With aforesaid observations, the writ petition is Allowed with
cost of Rs. 50,000/-. The cost shall be deposited by the respondents
within a period of 10 days from today in the Registry of this Court
and the petitioner shall be free to withdraw the same.
186. The Superintendent of Police, Gwalior is directed to keep the
original case diary as well as the file of the office of Add. S.P. (East),
Record of Dial 100 and the copies of the Rojnamcha sanhas provided
to this Court in sealed cover and handover the same to CBI.
187. It was informed by Shri Raghuvanshi that the Pen Drive
provided to the Court, which contains the video clippings of three
statements of the prosecutrix i.e., first statement recorded on 31-1-
2021 and two supplementary statements recorded on 1-2-2021,
statement of father of the prosecutrix and statement of Dharmendra
Dhakad, is not the original copy, but it has been prepared for the
purposes of the Court. Accordingly, the Reader of the Court is
directed to retain the Pen Drive and keep the same in the file of this
Case in a sealed cover.
188. Accordingly, the original case diary, original file of Add. S.P.
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(East), print out of record of Dial 100, and print out of
Rojnamchasanhas be returned to the Superintendent of Police,
Gwalior only.
(G.S. Ahluwalia)
Judge
ARUN KUMAR MISHRA
2021.06.24 13:33:01 +05'30'
