SATYAMA DUBEY & ORS. versus UNION OF INDIA & ORS. on 27 October 2020

[2020] 9 S.C.R. 517

SATYAMA DUBEY & ORS.

v.

UNION OF INDIA & ORS.

(Writ Petition (Criminal) No. 296 of 2020)

OCTOBER 27, 2020

[S. A. BOBDE, CJI, A. S. BOPANNA ANDV. RAMASUBRAMANIAN, JJ.]

Constitution of India:

Art. 32 – Writ Petition – Seeking fair investigation in a caseof brutal gangrape and murder in the State of Uttar Pradesh –Petitioners alleged that cremation of the victim was illegal – TheState in its affidavit stated that the investigation was entrusted toCBI by the State – Held: Supreme Court is not required to monitorthe proceedings/ investigation because the High Court havingcompetent jurisdiction has adequately delved into the aspects offair investigation – Therefore, all aspects are left open to beconsidered by the High Court – Though sufficient steps have beentaken to protect the family of the victim by State Police, however, inthe facts of the case, CRPF is directed to take over the protection ofvictim’s family and witnesses – The aspect of appointment of SpecialPublic Prosecutor would be considered by the High Court – Theissue as to whether the trial of the case is to be transferred to Delhifrom Uttar Pradesh, is kept open to be considered if need arises infuture.

Penal Code, 1860:

s. 228A – Disclosure of names and relationship of familymembers of rape victim – In the judicial order – Held: is againstlaw.

Disposing of the Writ Petitions and the interventionapplications, the Court HELD: 1.1 The undisputed fact is that the investigationhas in fact been entrusted by the State Government itself to theCBI on 10.10.2020 and the CBI has started investigation inrespect of the crime on 11.10.2020. Therefore, the apprehensions

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Aexpressed by the petitioners/applicants that there would be noproper investigation if the Uttar Pradesh Police conducted thesame would not remain open for consideration at this stage andthe grievance to that extent stands redressed. [Para 10][527-C-E]

B1.2 From the order passed by the High Court of Allahabadin the PIL, it is noticed that the High Court has adequately delvedinto the aspects relating to the case to secure fair investigationand has also secured the presence of the father, mother, brotherand sister-in-law of the victim and appropriate orders are beingpassed, including securing reports from various quarters. In thatCcircumstance, it is not necessary to divest the High Court of theproceedings and take upon this Court to monitor the proceedings/investigation. That apart, the incident having occurred within thejurisdiction of that High Court and all particulars being available,it would be appropriate for the High Court to proceed to monitor Dthe investigation in the manner in which it would desire. In thatview, it would be open for the writ petitioners/applicants to seekto intervene in the matter before the High Court subject toconsideration of such request by the High Court and if it findsthe need to take into consideration the contentions to be urgedby the petitioners/applicants in that regard. [Para 10][527-E-H]

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1.3 Therefore, without expressing any opinion on the meritsof the rival contentions, all aspects of the matter are left open tobe considered by the High Court in PIL(C) No.16150/2020relating to the incident regarding which the investigation is to beconducted by the CBI and also with regard to the grievance putFforth alleging illegal cremation. The CBI shall report to the HighCourt in the manner as would be directed by the High Courtthrough its orders from time to time. [Paras 13 and 14][528-E-H]

2.1 Insofar as the protection to the victim’s family and thewitnesses, the affidavit, as filed, no doubt indicates that sufficientGsteps have been taken by the State Government to provideprotection. However, in a matter of the present nature, withoutcasting any aspersions on the security personnel of the StatePolice; in order to allay all apprehensions and only as a confidence H

building measure, it would be appropriate to direct that thesecurity to the victim’s family and the witnesses shall be providedby the CRPF. [Paras 11 and 12][528-A-D]

2.2. Respondent No.2 (Chief Secretary, State of U.P) inWP(Crl) No.296/2020 shall bring this order to the notice of thecompetent officer of the CRPF forthwith with a request to provideadequate security to the victim’s family and the witnesses andthe CRPF shall take steps to provide the same and shall reportthe same to the High Court. [Para 14][529-A-B]

3. There is no need to pass any specific order as regardsappointment of a Special Public Prosecutor. This is an aspect whichcould be considered by the High Court in the light of theprovisions of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989. In the circumstance whereinthe family members of the victim have chosen to engage theirprivate Advocates, they would consider these aspects and makerequest on behalf of the victim in accordance with law if suchneed arises. [Para 13][528-F-G]

4. Insofar as the transfer of the case to Delhi is concerned,it would be appropriate for investigating agency to complete theinvestigation and in any event since the local police have beendivested of the investigation and the CBI is carrying out theinvestigation, there would be no room for apprehensions at thisstage. However, the issue as to whether the trial of the case is tobe transferred, is a matter which is kept open to be considered ifneed arises in future. [Para 15][529-B-C]

5. The name and relationship of the family members withthe victim have been depicted in the face of the order dated12.10.2020 passed by the High Court in PIL(C) No.16150/2020.Since it is a requirement of law to avoid such disclosure, the HighCourt is requested to delete the same and also morph the samein the digital records and avoid indication of such contents infuture. [Para 16][529-D-E]

CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No. 296 of 2020.

Under Article 32 of the Constitution of India AB

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Writ Petition (Crl) Nos. 304, 308, 314 and 316 of 2020.

Tushar Mehta, SG, K. M. Natraj, ASG, Harish Salve, Ms. IndiraJaisingh, Sidharth Luthra, Colin Gonsalves, Sr.Advs., Pradeep KumarYadav, Abhay Singh Yadav, Sanjeev Malhotra, Smarhar Singh, RajeshBKumar, Gopi Raman, Md. Shahid Anwar, Firoz A. Shaikh, HareeshAhmad Minhaj, Varinder Kumar Sharma, Shantanu Sharma, S. B. Talekar,Karthik Jayashankar, Ms. Pradnya Talekar, Ms. Madhavi Ayyappan,Vipin Nair, Rajat Nair, Arvind Kumar Sharma, Ms. Garima Prashad,Ms. Kirti Singh, Ms. Nandita Rao, Ms. Manali Singhal, Ms. Iti Pandey,CMs. Swaty Singh Malik, Ms. Ekta Kapil, Ms. Pooja Saigal, Ms. SanjoliMehrotra, Ms. Kaveeta Wadia, Ms. Anshika Sood, Ms. Jyoti Babbar,Ms. Anjali Sharma, Ms. Shreya Agrawal, Ms. Anasuya Chowdhary,Ms. Kritika Gupta, Ms. Megha Katheria, Ms. Atishree Sood, Ms. SaumyaTandon, Ms. Geetika Panwar, Ms. Anubha Rastogi, Saurabh Kirpal,Akshay Makhija, Gaurav Sarin, Vineet Jhanji, Ms. Sonia Mathur,DMs. Ruksana Chowdhary, Ms. Arundhati Katju, Ms. Purnima Malik,Ms. Daisy Hannah, S.Sagar, Sahil Modi, Vivek Suri, Ms. Sonam Gupta,Ms. Silky Wadhwa, Rahul Chouhan, Ms. Guninder Kaur Gill, ManuYadav, Ms. Apporva Pandey, Ms. Sonam Anand, Sanjeev Mahajan,Ms. Pooja Dhar, Iram Majid, Ms. Aditi Gupta, Ms. Anuradha Dutt,EMs. Kriti Kakkar, Ms. Malavika Rajkotia, Ms. Zeba Khair, Ms. SangeetaBharti, R. R. David, Warisha Farasat, Ms. Shweta Kapoor, Ms. KajalChandra, Ms. Shalini Sati Prasad, Ms. Tanvi Asthana, Surya Rajappan,Ms. Nidhi Mohan Parashar, Ms. Manali Singhal, Ms. Prachi Dutta,Tarannum Cheema, Darpan Wadhwa, Ashish Dholakia, AbhimanyuMahajan, Prosenjeet Bannerjee, Tahira Karanjawala, Ms. MenakaFGuruswamy, Miriam Fozia Rahman, Ms. Amita Singh Kalkal, Rohit Kaul,Ms. Nandita Chauhan, Shashank Agarwal, Abhimanshu Dhyani,Ms. Ruby Singh Ahuja, Ms. Niharika Karanjawala, Satyam Chaturvedi,Ms. Ritu Raj Srivastava, Virinder Pal Singh Sandhu, Jatin Mongia,Kashyap Guddi Patti, Ms. Beena Pandey, Ms. Haripriya Padmanabhan,GShadab Husain Khan, Ms. Ritu Bhalla, Firdaus Moosa, Shahrukh Alam,Mrinalini Sen, Jhum Jhum Sarkar, Amita Gupta, Aathira Pillai, SatakshiSood, Ms. Naomi Chandra, Ms. Deepika Pokharia, Ms. Kiran Kalra,Ms. Prachi V. Sharma, Ms. Neha Dhir, Ms. Neha Pandey, Ms. SuruchiSuri, Anupam Sanghi, Ms. Rea Bhalla, Ms. Mahjabeen, Satvik Varma,Ms. Ila Kapoor, Ms. Charul Sarin, Viraj Datar, Ms. Nandini Gore,H

Ms. Shreya Singhal, Fozia Ahmed, Ms. Ruchi Singh, Ms. SurabhiAgarwal, Aashneet Singh, Karan Seth, Varun Kumar, Ms. AprajitaBudhwar, Ms. Rakshita Kachroo, Ms. Bonita Singh, Yogendra Misra,Mridul Yadav, Rajat Soni, Ms. Ruchi Agnihotri, Ms. Meghna Mishra,Ms. Gurkirat Kaur, Ms. Seema Kushwaha, Ishit Saharia, Ms. AparnaBhat, Ms. Karimhma Maria, Sudhir Mendiratta, Nishit Agrawal, SheezanHashmi, Anmol Kheta, Harsh Mishra, Gunjan Singh, Ms. Pragya Ganjoo,Satya Mitra, Ms. Shobha Gupta, Ms. Prachi Apte, J. Sai Deepak, SuviduttM. S., Mrs. Anu B., Vibhor Ahlawat, Abhishek Avadani, Avinash Sharma,Ms. Shaktiki Sharma, Ms. Vanya Agarwal, Yogesh Kumar, Abhijeet Singh,G Ankolekar, Surendra Singh Ran, Mukesh Kumar Singh, Ikshit Singhal,Shantanu Jugtawat, Bhanu Priya Sharma, M/s. Mukesh Kumar Singhand Co., Advs. for the appearing parties.

The following Judgment of the Court was delivered :

JUDGMENT

The following Judgment of the Court was delivered :

JUDGMENT

1. The petitioners and all the intervening applicants in these mattershave raised concern with regard to the manner in which a 19 years oldgirl hailing from Hathras, Uttar Pradesh is alleged to have been raped,brutally assaulted; due to which she lost her life and also the manner inwhich she was cremated. The Writ Petition (Crl) No.296/2020 was initiallytaken on board by this Court and notice was ordered to the respondentsreturnable in a week. In the meanwhile, the remaining petitions and theapplications were filed in respect of the same incident to seek for variedreliefs which are all ultimately in pursuit of a fair investigation and bringto justice the culprits.

2. The details of the other applications and writ petitions are asfollows:

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3. For a brief narration shorn of unnecessary details and to notethe nature of the relief sought, the petition in W.P.(Crl.) No.296/2020 isreferred. In the Writ Petition filed under Article 32 of the Constitution ofIndia the petitioners are praying that the Union of India and concernedauthorities be ordered to conduct a fair investigation; if need arise bytransferring the case to the Central Bureau of Investigation (‘CBI’ forshort) or SIT be formed to investigate the matter. It is also prayed that asitting or retired Supreme Court Judge or High Court Judge be appointedto look into the matter. The petitioners have further prayed that the casebe transferred from Hathras, Uttar Pradesh to Delhi.

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4. The case as put forth is that a 19-year-old girl, resident ofHathras village in Uttar Pradesh was brutally gang-raped. The mannerin which she was assaulted is referred to in the petition. Though she wasshifted to Safdarjung Hospital in Delhi, she breathed her last and shewas cremated in the middle of the night without the presence of herfamily members. Considering the manner in which the entire incidenthad taken place, the petitioners contended that a fair investigation wouldbe possible only if the matter is entrusted to an independent agency.

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5. The pleadings in the other writ petitions and the interventionapplications are relating to the same incident though different reliefshave been sought, which in any event is to secure fair investigation andpunish the guilty in accordance with law.

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6. At the outset, when the first of the petition was taken up by thisCourt on 16.10.2020, Mr. Tushar Mehta, learned Solicitor General hadfairly submitted that the instant petition would not be considered as anadversarial litigation and the respondents are also interested that a fairinvestigation be conducted and the offenders be brought to book. At that H

Astage, it was noticed that the Allahabad High Court, Lucknow Benchhaving taken note of the incident hadpassed a detailed order dated01.10.2020 and ordered registration of the suo moto petition beingPIL(C)No.16150/2020. In that circumstance this Court was of the primafacie view that the petitions filed before this Court need not be entertainedat this stage since the jurisdictional High Court was seized of the matter.BHowever, Ms. Indira Jaising, learned Senior Counsel while interveningon behalf of the intervening advocates had raised concern with regardto the adequate protection being provided to the victim’s family membersand the witnesses. Having found that such concern raised needs to beaddressed, the learned Solicitor General was requested to secureCinstructions on these aspects and file an appropriate affidavit.

7. Pursuant thereto, an affidavit dated 14.10.2020 sworn to by theSpecial Secretary, Home Department, Uttar Pradesh is filed, whereinthe details of the security provided is indicated. In that regard it is statedthat the parents, two brothers, one sister-in-law and grandmother of theDvictim who are residing at village Chandpa, District Hathras, UttarPradesh have been provided protection under a three-fold protectionmechanism through (a)Armed Constabulary Component, (b) Civil PoliceComponent and (c) Installation of CCTV cameras/lights. The details ofeach of the component is also stated in the affidavit and it is furtherstated that the Inspector (In-charge) of Police StationChandpa has beenEmade In-charge of the aforesaid entire arrangement to deploy suitablepolice force for the same. The Circle Officer, Sadabad is to ensurerobust security arrangement by holding regular clear briefings to thepolice force and to inform the family members about the securityarrangements provided to them. The affidavit also states that on enquiryFfrom the family members of the victim it is learnt that they have engagedMs. Seema Kushwaha and Mr. Raj Ratan, Advocates on behalf of thefamily as their private advocates.

8. The affidavit also indicates that the investigation by the CBIwould be conducted under the supervision of the Court in a time boundGmanner. The Director General of Police, State of Uttar Pradesh hasalso filed an affidavit indicating that the State Government itself hassought investigation by the CBI to be conducted under the supervisionof the Court and on 10.10.2020 the CBI accepted the request of theState and has started investigation in respect of the crime, on 11.10.2020.The orders dated 01.10.2020 and 12.10.2020 passed by the High CourtH

and the fact that the High Court has been apprised that the investigationby the CBI was in progress is stated therein.

9. In addition to hearing Mr. Tushar Mehta, learned SolicitorGeneral who appeared for the State, Mr. Harish Salve, learned SeniorCounsel for DGP and Smt. Seema Kushwaha on behalf of the familymembers of the victim as also the other learned counsel lead byMs. Indira Jaising, Mr. Colin Gonsalves, learned Senior Counsel whoraised concern on behalf of the victim’s family in the various writ petitionsand applications, we have taken note of the submission made byMr. Sidharth Luthra, learned senior counsel who sought to appear onbehalf of the accused to contend that the legal right available to theaccused ought not to be ignored in the process.

10. Though various contentions were urged, the undisputed factis that the investigation has in fact been entrusted by the StateGovernment itself to the CBI on 10.10.2020 and the CBI has startedinvestigation in respect of the crime on 11.10.2020. Therefore, theapprehensions expressed by the petitioners/applicants that there wouldbe no proper investigation if the Uttar Pradesh Police conducted thesame would not remain open for consideration at this stage and thegrievance to that extent stands redressed. Though the petitioners hadsought and the respondent-State also through their affidavit had indicatedthat this Court can monitor the same, as already referred to above, aPIL(C)No.16150/2020 has been registered in the Allahabad High Court,Lucknow Bench, suo motopursuant to its order dated 01.10.2020. Fromthe order passed by the High Court it is noticed that the High Court hasadequately delved into the aspects relating to the case to secure fairinvestigation and has also secured the presence of the father, mother,brother and sister-in-law of the victim and appropriate orders are beingpassed, including securing reports from various quarters. In thatcircumstance, we do not find it necessary to divest the High Court of theproceedings and take upon this Court to monitor the proceedings/investigation. That apart, the incident having occurred within thejurisdiction of that High Court and all particulars being available, it wouldbe appropriate for the High Court to proceed to monitor the investigationin the manner in which it would desire. In that view, it would be open forthe writ petitioners/applicants herein to seek to intervene in the matterbefore the High Court subject to consideration of such request by theHigh Court and if it finds the need to take into consideration the contentionsto be urged by the petitioners/applicants in that regard.

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A11. Insofar as the protection to the victim’s family and thewitnesses, the limited purpose for which this Court had directed noticeand sought for an affidavit; the affidavit as filed no doubt indicates thatsufficient steps have been taken by the State Government to provideprotection. Ms. Indira Jaising, learned Senior Counsel wouldhowever,contend that the protection as provided through the State Police wouldBnot be appropriate and as such the protection be directed to be providedby the Central Reserve Police Force (CRPF). It is further contended byher that a Special Public Prosecutor be appointed and the monitoring bemade.

12. Having taken note of the contentions and having perused theCaffidavit filed on behalf of the State Government we are convinced thatsteps have been taken by the State Government to make adequatearrangement for security to the victim’s family and witnesses. However,in a matter of the present nature it is necessary to address the normalperception and pessimism which cannot be said as being withoutDjustification. In that view, without casting any aspersions on the securitypersonnel of the State Police; in order to allay all apprehensions and onlyas a confidence building measure, we find it appropriate to direct thatthe security to the victim’s family and the witnesses shall be provided bythe CRPF within a week from today.

E13. On the aspect relating to the investigation, since we haveindicated that the High Court would look into that aspect of the matter,the CBI shall report to the High Court in the manner as would be directedby the High Court through its orders from time to time. On the requestof Ms. Indira Jaising, learned senior counsel for appointment of a SpecialPublic Prosecutor we see no need to pass any specific order. This is anFaspect which could be considered by the High Court in the light of theprovisions of the Scheduled Castes and the Scheduled Tribes (Preventionof Atrocities) Act, 1989. In the circumstance wherein the family membersof the victim have chosen to engage Ms. Seema Kushwaha and Mr. RajRatan, Advocates, they would consider these aspects and make requestGon behalf of the victim in accordance with law if such need arises.

14. Therefore, without expressing any opinion on the merits ofthe rival contentions, all aspects of the matter are left open to beconsidered by the High Court in PIL(C) No.16150/2020 relating to theincident regarding which the investigation is to be conducted by the CBIHand also with regard to the grievance put forth alleging illegal cremation.

With regard to the protection to the victim’s family and witnesses,therespondent No.2 (Chief Secretary, State of U.P) in WP(Crl) No.296/2020 shall bring this order to the notice of the competent officer of theCRPF forthwith with a request to provide adequate security to the victim’sfamily and the witnesses and the CRPF shall take steps to provide thesame and shall report the same to the High Court.

15. Insofar as the transfer of the case to Delhi as sought by thepetitioners/applicants, Ms. Seema Kushwaha, learned counsel for thevictim’s family indicated that the need for transfer would arise after theinvestigation is complete. On this aspect we are also of the view that itwould be appropriate for investigating agency to complete the investigationand in any event since the local police have been divested of theinvestigation and the CBI is carrying out the investigation there wouldbe no room for apprehensions at this stage. However, the issue as towhether the trial of the case is to be transferred is a matter which is keptopen to be considered if need arises in future.

16. Before parting, we take note of the submission of the learnedSolicitor General about the name and relationship of the family memberswith the victim being depicted in the face of the order dated 12.10.2020passed by the High Court in PIL(C) No.16150/2020. Since it is arequirement of law to avoid such disclosure, the High Court is requestedto delete the same and also morph the same in the digital records andavoid indication of such contents in future.

17. In terms of the above observations and directions, the writpetitions and applications stand disposed of. No costs.

Kalpana K. Tripathy

Petitions and applications disposed of.

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