SCR.A/6157/2020 of CHAUDHARY DIPESHKUMAR DEVAJIBHAI KARSHANBHAI Vs STATE OF GUJARAT on 30 December 2020

ORAL ORDER

1. Heard learned Advocate Shri Nasir Saiyed for the petitioners andlearned APP Ms. Jirga Jhaveri for the respondent State.

2. By way of present petition, petitioners who have got married on23.09.2019, have voiced their apprehension that since the parents of thepetitioner No.2 were not in favour of the marriage between the petitioners,there was a threat to the life and property of the petitioners.Consequentially, the petitioners have prayed that this Court may direct therespondent No.2 to provide police protection to the petitioners.

3. It appears that by earlier orders of this Court, at the request of thepetitioners, police protection had been granted to the petitioners at theirown costs. It also appears that such police protection had been grantedfrom 18.12.2020 to 24.12.2020 during which period, no law and orderproblem had been reported.

4. Learned Advocate Shri Nasir Saiyed on behalf of the petitioners,submits that while the petitioners had requested for the police protection tobe provided to them at their own cost, and whereas the same had beengranted by earlier orders of this Court, now while the threat to the life andproperty of petitioners still subsists, yet due to lack of resources, they arenot able to request for police protection at their own cost, therefore, theyhave requested that police protection may be provided at the cost of theState.

5. Learned APP Ms. Jhaveri for the respondent State has submitted thatduring the period when the police protection had been granted, there wasno law and order problem which had been reported and hence, as suchaccording to the learned APP, there is no requirement for any further policeprotection in any case. Learned APP submits that the aspect of threat to thelife and property of the petitioners may be examined by the DistrictSuperintendent of Police, Banaskantha, and in case, he is of the opinion thatthere appears threat to the life and property of the petitioners, he may issueappropriate orders. Learned APP has also relied upon the judgment of theHon'ble Apex Court in the case of Shakti Vahini Vs. Union of Indiareported in 2018 (7) SCC 192.

6. The Hon'ble Apex Court in the case of Shakti Vahini (Supra) directedpreventive, remedial and punitive measures to tackle the scourge of dis-honour killing. Since the petitioners have voiced their apprehension aboutthreat to their life and property on account of marriage between thepetitioners not being approved by the parents and other family members ofpetitioner No.2, the direction of the Hon'ble Apex Court would also beapplicable in the present instance. Steps as directed by the Hon'ble ApexCourt are reproduced herein below:

“I. Preventive Steps:-

(a) The State Governments should forthwith identify Districts,Sub-Divisions and/or Villages where instances of honour killing orassembly of Khap Panchayats have been reported in the recentpast, e.g., in the last five years.

(b) The Secretary, Home Department of the concerned States shallissue directives/advisories to the Superintendent of Police of theconcerned Districts for ensuring that the Officer Incharge of thePolice Stations of the identified areas are extra cautious if anyinstance of inter-caste or interreligious marriage within theirjurisdiction comes to their notice.

(c) If information about any proposed gathering of a KhapPanchayat comes to the knowledge of any police officer or anyofficer of the District Administration, he shall forthwith inform hisimmediate superior officer and also simultaneously intimate thejurisdictional Deputy Superintendent of Police and Superintendentof Police.

(d) On receiving such information, the Deputy Superintendent ofPolice (or such senior police officer as identified by the StateGovernments with respect to the area/district) shall immediatelyinteract with the members of the Khap Panchayat and impressupon them that convening of such meeting/gathering is notpermissible in law and to eschew from going ahead with such ameeting. Additionally, he should issue appropriate directions to theOfficer Incharge of the jurisdictional Police Station to be vigilantand, if necessary, to deploy adequate police force for prevention ofassembly of the proposed gathering.

(e) Despite taking such measures, if the meeting is conducted, theDeputy Superintendent of Police shall personally remain presentduring the meeting and impress upon the assembly that nodecision can be taken to cause any harm to the couple or the familymembers of the couple, failing which each one participating in the meeting besides the organisers would be personally liable forcriminal prosecution. He shall also ensure that video recording ofthe discussion and participation of the members of the assembly isdone on the basis of which the law enforcing machinery can resortto suitable action. (f) If the Deputy Superintendent of Police, afterinteraction with the members of the Khap Panchayat, has reasonto believe that the gathering cannot be prevented and/or is likelyto cause harm to the couple or members of their family, he shallforthwith submit a proposal to the District Magistrate/Sub-Divisional Magistrate of the District/ Competent Authority of theconcerned area for issuing orders to take preventive steps underthe Cr.P.C., including by invoking prohibitory orders under Section144 Cr.P.C. and also by causing arrest of the participants in theassembly under Section 151 Cr.P.C.

(g) The Home Department of the Government of India must takeinitiative and work in coordination with the State Governments forsensitising the law enforcement agencies and by involving all thestake holders to identify the measures for prevention of suchviolence and to implement the constitutional goal of social justiceand the rule of law.

(h) There should be an institutional machinery with the necessarycoordination of all the stakeholders. The different StateGovernments and the Centre ought to work on sensitization of thelaw enforcement agencies to mandate social initiatives andawareness to curb such violence.

II. Remedial Measures:-

(a) Despite the preventive measures taken by the State Police, if itcomes to the notice of the local police that the Khap Panchayat hastaken place and it has passed any diktat to take action against acouple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), thejurisdictional police official shall cause to immediately lodge anF.I.R. under the appropriate provisions of the Indian Penal Codeincluding Sections 141, 143, 503 read with 506 of IPC.

(b) Upon registration of F.I.R., intimation shall be simultaneouslygiven to the Superintendent of Police/ Deputy Superintendent ofPolice who, in turn, shall ensure that effective investigation of thecrime is done and taken to its logical end with promptitude. (c) Additionally, immediate steps should be taken to providesecurity to the couple/family and, if necessary, to remove them toa safe house within the same district or elsewhere keeping in mindtheir safety and threat perception. The State Government mayconsider of establishing a safe house at each District Headquarterfor that purpose. Such safe houses can cater to accommodate (i)young bachelor-bachelorette couples whose relationship is beingopposed by their families /local community/Khaps and (ii) youngmarried couples (of an inter-caste or inter-religious or any othermarriagebeingopposedbytheirfamilies/localcommunity/Khaps). Such safe houses may be placed under thesupervision of the jurisdictional District Magistrate andSuperintendentofPolice.(d)TheDistrictMagistrate/Superintendent of Police must deal with the complaintregarding threat administered to such couple/family with utmostsensitivity. It should be first ascertained whether the bachelor-bachelorette are capable adults. Thereafter, if necessary, they maybe provided logistical support for solemnising their marriageand/or for being duly registered under police protection, if they sodesire. After the marriage, if the couple so desire, they can beprovided accommodation on payment of nominal charges in thesafe house initially for a period of one month to be extended onmonthly basis but not exceeding one year in aggregate, depending on their threat assessment on case to case basis. (e) The initialinquiry regarding the complaint received from the couple(bachelor-bachelorette or a young married couple) or uponreceiving information from an independent source that therelationship/marriage of such couple is opposed by their familymembers/local community/Khaps shall be entrusted by theDistrict Magistrate/ Superintendent of Police to an officer of therank of Additional Superintendent of Police. He shall conduct apreliminary inquiry and ascertain the authenticity, nature andgravity of threat perception. On being satisfied as to theauthenticity of such threats, he shall immediately submit a report tothe Superintendent of Police in not later than one week. (f) TheDistrict Superintendent of Police, upon receipt of such report, shalldirect the Deputy Superintendent of Police incharge of theconcerned sub-division to cause to register an F.I.R. against thepersons threatening the couple(s) and, if necessary, invoke Section151 of Cr.P.C. Additionally, the Deputy Superintendent of Policeshall personally supervise the progress of investigation and ensurethat the same is completed and taken to its logical end withpromptitude. In the course of investigation, the concerned personsshall be booked without any exception including the members whohave participated in the assembly. If the involvement of themembers of Khap Panchayat comes to the fore, they shall also becharged for the offence of conspiracy or abetment, as the case maybe.

III. Punitive Measures:-

III. Punitive Measures:-

(a) Any failure by either the police or district officer/officials tocomply with the aforesaid directions shall be considered as an actof deliberate negligence and/or misconduct for whichdepartmental action must be taken under the service rules. The departmental action shall be initiated and taken to its logical end,preferably not exceeding six months, by the authority of the firstinstance.

(b) In terms of the ruling of this Court in Arumugam Servai(supra), the States are directed to take disciplinary action againstthe concerned officials if it is found that (i) such official(s) did notprevent the incident, despite having prior knowledge of it, or (ii)where the incident had already occurred, such official(s) did notpromptly apprehend and institute criminal proceedings against theculprits.

(c) The State Governments shall create Special Cells in everyDistrict comprising of the Superintendent of Police, the DistrictSocial Welfare Officer and District Adi-Dravidar Welfare Officerto receive petitions/complaints of harassment of and threat tocouples of inter-caste marriage.

(d) These Special Cells shall create a 24 hour helpline to receiveand register such complaints and to provide necessaryassistance/advice and protection to the couple.

(e) The criminal cases pertaining to honour killing or violence tothe couple(s) shall be tried before the designated Court/Fast TrackCourt earmarked for that purpose. The trial must proceed on dayto day basis to be concluded preferably within six months from thedate of taking cognizance of the offence. We may hasten to addthat this direction shall apply even to pending cases. Theconcerned District Judge shall assign those cases, as far as possible,to one jurisdictional court so as to ensure expeditious disposalthereof.”

7. Since the petitioners have expressed their apprehension about theirthreat from the family members of the petitioner No.2 on account of thesaid family members not approving of marriage between the petitioners, therefore, the above directions of the Apex Court would have directapplicability except that there is an absence of Khap Panchayat in thepresent case. In view of the same, relying upon the aforesaid reproduceddirections of the Hon'ble Apex Court, following directions are passed:

(i) The District Superintendent of Police, Banaskantha, toexamine the issue with reference to the apprehension voiced by thepetitioners herein and decide whether there really exists any threatto the life and property of the petitioners from the family membersof the petitioner No.2 and / or other community members. Suchdecision shall be taken within a period of one week from the date ofreceipt of this order and the decision shall also be communicated tothe petitioners.

(ii) If the District Superintendent of Police, Banaskantha, comesto a conclusion that the apprehension of threat is genuine, then heshould first try to impress upon / counsel the family members ofthe petitioner No.2 and / or their community members, againstcausing any harm to the petitioners and / or their family members.

(iii) Even after appropriate counseling, as directed above, if thethreat to the life and property of the petitioners and / or theirfamily members persists, the District Superintendent of Police,Banaskantha, shall provide police protection as deemed appropriateto the petitioners for such time period as he thinks fit. It would alsobe open to the District Superintendent of Police to direct grantingof police protection to the petitioners at the first instance, basedupon the threat perception, even before he counsels the familymembers of the respondent No.2.

8. With such direction, the present petition is disposed of. Needless to state that it would be open for the petitioners to approach this Court in caseof any grievance.

VARSHA DESAI/YNVYAS

(NIKHIL S. KARIEL,J)