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HIGH COURT OF JUDICATURE AT ALLAHABAD

Chief Justice's Court

Case :- CRIMINAL WRIT-PUBLIC INTEREST LITIGATION No. - 18005 of 2016
Petitioner :- In The Matter Of Rape With Mother & Daughter At N.H.91
Counsel for Respondent :- A.G.A.
Along with
Case :- CRIMINAL WRIT-PUBLIC INTEREST LITIGATION No. - 18231 of 2016
Petitioner :- We The People, Thru' Its General Secretary Prince Lenin
Respondent :- Union Of India Thru' Secy. Min. Of Home & Ors.
Counsel for Petitioner :- In Person,Prince Lenin
Counsel for Respondent :- C.S.C.,A.S.G.I.

Hon'ble Dilip B. Bhosale,Chief Justice

Hon'ble Yashwant Varma,J

These proceedings came to be registered upon the Court taking suo moto notice of a horrific
incident which occurred on 29th/30th July 2016 in District Bulandshahar. On the night of 29/30
July 2016, a family was travelling along NH 91 after attending the last rituals of a grandmother.
Kaushal Kishore one of the occupants in the car was accompanied by his wife and 13 year old
daughter. The car is stated to have hit an obstacle whereupon it stopped. As the occupants
alighted to attend to the problem, they are stated to have been assaulted by a group of 5-6
unknown men who surrounded them and on gunpoint dragged them into a neighboring field.
The cash and other valuables of the family were looted. The male members are stated to have
been tied down and their hands bound. Then ensued events which shocked the entire nation.
In the presence of the other family members the gang members sexually assaulted and raped
the wife and minor daughter of Kaushal Kishore. The assault, as was reported in the press,
continued for almost three hours where after the members of the gang fled the scene of crime.
The son of Santosh Misra, the first informant, somehow managed to untie himself and freed
the other members of the travelling party. The first informant is stated to have thereafter
contacted an acquaintance at NOIDA who in turn informed the local police. The police arrived
on the scene and thereafter a First Information Report was lodged on 30 July 2016 at 05:30 in
the morning.
An act of sexual assault and rape has been correctly described as not being a crime against
an individual alone but a crime against society as a whole. Quite apart from the physical injury
to the victim the heinousness of the crime assumes horrific proportions on account of the
permanent and indelible impact that it leaves and imbeds upon the psyche of the victim. The
crime not just shreds the soul of the victim, it leaves behind scars which perhaps even time
may never heal. The depravity of the crime is amplified even more when it is committed upon
a young girl in her minority. A girl who is yet to find her feet in this world becomes a victim of
abhorrent abuse and vileness beyond parallel. More fundamentally such a crime blots not just
the moral fibre and basic principles of civility which a society cherishes, it casts a haunting and
imperishable smear on our governance and the rule of law.
Taking note of the above incident which was reported widely in leading national dailies, on 8
August 2016 the learned Advocate General was called upon to take instructions as to whether
the State Government would consider the transfer of investigation to the Central Bureau of
Investigation (CBI). He was also asked to submit a confidential status report in sealed cover
detailing progress made till date in the ensuing investigation. On his request, the matter was
adjourned to 10 August 2016. On the said date, the matter was again adjourned to 11 August
2016 to enable the Advocate General to file the confidential status report. On 11 August 2016
the status report was submitted by the Additional Advocate General. It was pointed out to the
learned Additional Advocate General that the requisite statements, medical examination
reports and other material in respect of the crime in question had not been tendered. His
attention was also drawn to the reports and the submissions of the petitioner in person, who
had averred that the present incident was not the first time that such a crime had been
committed on and along the stretch of NH 91 and falling within the jurisdiction of the two police
stations in district Bulandshahr. On the assurance of the Additional Advocate General that the
requisite material in respect of the crime in question as also of the earlier incidents which had
occurred would be placed, the matter was posted for 12 August 2016.
During the course of hearing today, the Additional Advocate General has handed over a
compilation of documents comprising of the first information reports of earlier incidents as also
the medical examination report of a victim, who was assaulted on 9 August 2016. The
statements of the victims of the crime in question as also of the other individuals who had
lodged FIR's in respect of separate incidents of robbery, theft and assault were however, not
produced. We are constrained to note that the conduct of the State and its officers in assisting
the Court in the present proceedings has been extremely casual. Though more than enough
time had been provided to the State respondents and accommodation granted, the
disclosures have neither been full nor candid. Even the confidential status report leaves much
to be desired. We however, refrain from commenting any further on this aspect and proceed to
deal with the primary issue which arises for consideration.
From a perusal of the status report submitted before us, it transpires that a first information
report was lodged on 30 July 2016 against five to six unknown accused persons evidencing
the commission of crimes referable to Sections 395, 397, 376D, 343 IPC read with Section 4
of the Protection Of Children From Sexual Offences Act, 2012 (POCSO). As per the
confidential status report, a forensic team visited the scene of crime and gathered samples of
footprints and also photographed the place of occurrence. The clothing of the victims is also
stated to have been sent for forensic examination. However, even the preliminary findings or
material gathered by the forensic team has not been disclosed to this Court. The victims are
stated to have been subjected to a medical examination at the Kasturba Government Women
Hospital, Bulandshahr on 30 July 2016. The medical examination report of the victims of the
crime in question which was produced for our perusal clearly showed that the nature of
examination and enquiry which is liable to be conducted in a case of rape had not been
followed. Their statements under Section 161 Cr.P.C. are stated to have been recorded by the
Investigating Officer. Their statements under Section 164 Cr.P.C. are stated to have been
recorded before the concerned Magistrate on 10 August 2016. Although the statements under
Section 164 Cr.P.C. were stated to be in sealed cover with the concerned Magistrate, the
statements under Section 161 Cr.P.C. which were available with the police authorities were
also not produced. Insofar as the medical examination report of the victims is concerned, as
noted above, it does not appear to have followed the principles which must underlie and
inform every investigation in a case alleging sexual assault.
The status report asserts that on 31 July 2016, the investigating team arrested three accused
persons. At the time of their arrest, the team is stated to have recovered a sum of Rs. 5500
and "some looted items" from their possession. The three accused are stated to have been
produced before the concerned Magistrate who is stated to have remanded them to three
days police custody. The Additional Advocate General was unable to apprise the Court as to
whether further police custody had been either sought or prayed for before the Magistrate.
The report then states that on the basis of information elicited from the three arrested
accused, three other persons were also arrested on 8 August 2016 and some ornaments,
looted money, mobile phones and country made pistols recovered from their possession.
From where these persons were arrested has not been disclosed. Surprisingly, the status
report asserts that the three accused arrested on 8 August 2016 were produced before the
concerned Magistrate on 9 August 2016 and sent to jail under judicial custody. No application
for taking the arrested accused into police custody appears to have been made. All that the
status report asserts is that the Investigating Officer "will apply for police custody remand".
The Additional Advocate General further candidly admitted that the procedure and processes
prescribed by Section 53A of the Cr.P.C. had not been followed or applied against any of the
arrested persons. A test identification parade is yet to be undertaken. Whether the looted
items and valuables recovered from the possession of the arrested accused is related to the
crime in question is also not disclosed. This and other glaring lapses are more than evident
from an ex facie examination of the status report and the material produced for our
consideration. We further find no justifiable cause or plausible explanation for the police not
taking the arrested accused into police custody or even praying for extension of police
custody. This also clearly indicates that the investigation has not been fair and proper.
We are deliberately and consciously neither recording nor elaborating upon the various
discrepancies which are ex facie noticeable from the disclosures made before us. This only
because at this stage the ongoing investigation must not be influenced in any manner.
However, it is more than evident that the investigation far from being credible does not inspire
confidence at all. We may in this connection only observe that while a fair trial is a right
conferred upon an accused, equally important is the right of a victim to a fair and credible
investigation. Both fair investigation and trial are concomitants and clearly flow from Article 21
of the Constitution. We may only note that in Nirmal Singh Kahlon Vs. State of Punjab1, the
Supreme Court has aptly noted that a victim of crime is equally entitled to a fair investigation.
A shabby investigation may compel a Court to exercise its extraordinary powers of entrusting
the same to an independent agency. This power is also liable to be exercised bearing in mind
the sensibility of the victims of crime and their next of kin. The underlying objective for the
exercise of this power is to ensure that true facts are discovered and the faith of the people
restored upon the investigation being undertaken by an independent agency. In a recent
judgment rendered by the Supreme Court in Pooja Pal Vs. Union of India 2 these aspects
were highlighted in the following words:
"100. The present factual conspectus leaves one with a choice either to let the ongoing trial
casually drift towards its conclusion with the possibility of offence going unpunished or to
embark upon investigation belated though, spurred by the intervening developments, to
unravel the truth, irrespective of the persons involved. As it is, every offence is a crime against
the society and is unpardonable, yet there are some species of ghastly, revolting and
villainous violations of the invaluable right to life which leave all sensible and right minded
persons of the society shell shocked and traumatized in body and soul. Such incidents
mercifully rare though are indeed exceptionally agonizing, eliciting resentful condemnation of
all and thus warrant an extra-ordinary attention for adequate remedial initiatives to prevent
their recurrence. In our considered view, even if such incidents otherwise diabolical and
horrendous do not precipitate, national or international ramifications, these undoubtedly
transcend beyond the confines of individual tragedies and militatively impact upon the
society's civilized existence. If the cause of complete justice and protection of human rights
are the situational demands in such contingencies, order for further investigation or
reinvestigation, even by an impartial agency as the CBI ought to be a peremptory measure in
the overwhelming cause of justice" (emphasis supplied)
Bearing in mind the manner in which the investigation has proceeded till now, the glaring
lapses which are more than evident from the record and considering the depravity of the
crime, the impact that this occurrence has had on the nation as a whole we are of the
considered opinion that the circumstances of the case warrant a transfer of the investigation to
the CBI forthwith. The crime in question has transcended far beyond what may be described
as a tragedy which befell an isolated family. The depravity of the crime, the manner in which a
young mother's honour was mutilated and the innocense of a child defiled has shocked an
entire nation which prides itself in being governed by the rule of law. This measure becomes
imperative in order to inspire confidence in the people, the next of kin and ensure a free, fair
and credible investigation.
This Court is further constrained to note that as many as four other incidents have occurred in
the area in which a similar modus operandi was adopted. We find that on 7 May 2016 [Case
Crime No. 616/2016, under Section 356 IPC, FIR dated 8 May 2016] certain persons travelling
on a stretch of NH 91 falling in District Bulandshahar were forced to stop their vehicle when it
hit an obstacle. As the driver alighted from the vehicle, he was surrounded by unknown
persons and money and valuables looted. On 12 May 2016 [Case Crime No. 636 of 2016,
under Section 379 IPC, FIR dated 14 May 2016], a repeat incident occurred when a person
who had parked his car near a hotel found that valuables had been looted. On and about 9
July 2016, as the press has reported, one Devraj Thakur, a former Pradhan of the village,
informed the police that a woman had been brought in a tempo and gang-raped late in the
night. Devraj Thakur is reported to have stated that immediately on reaching the spot he
raised an alarm whereafter the attackers fled the scene of crime. He found the woman in a
distraught condition and in dishevelled clothing. He is stated to have stopped a passing police
vehicle and handed over the victim, a mobile phone and some clothes that the men had left
behind at the spot. Astonishingly, a report in respect of this incident is stated to have been
registered by the police only after we had confronted the Additional Advocate General with the
said report. The FIR in this regard has come to be registered only on 11 August 2016 [Case
Crime No. 946 of 2016 under section 395 IPC]. The Additional Advocate General except from
apprising us that the statement of Devraj Thakur has been recorded was unable to provide
any further details. On 29/30 July 2016, the crime in question came to be committed [Case
Crime No. 838 of 2016 under sections 395, 397, 376 (D), 342 IPC read with section 4
POCSO]. On 9 August 2016 i.e. a day after we initiated these proceedings, a girl is stated to
have been administered an intoxicating substance while travelling in a car with four other
persons whereafter she was beaten up, assaulted and left languishing before a prominent mall
in Bulandshahr [Case Crime No. 919 of 2016 under sections 323 and 328 IPC]. These series
of incidents seem to indicate that some unknown persons adopting identical modus operandi
have waylaid various persons on different dates and indulged in acts of robbery, assault and
rape. Surprisingly, however, no effective action has been taken by the police authorities. The
repetitive character of these crimes evidences a complete and abject failure of the police
machinery to protect and secure the citizens of this State. This and other issues we leave for
further consideration on the date fixed.
We accordingly and for the reasons recorded above pass the following order: -
The Central Bureau of Investigation [CBI] is directed to take over investigation of Case Crime
No. 838 of 2016 registered at Police Station Kotwali Dehat District Bulandshahar forthwith.
The concerned Police Station is directed to hand over the original records/documents relating
to the investigation collected uptil now immediately. The Suprintendent of Police Bulandshahar
and his subordinate officers shall provide and accord all assistance to the CBI and shall
cooperate with them for investigating the crime. The CBI shall furnish a status report of its
investigation in sealed cover within a period of 3 weeks from the date of taking over the
investigation before this Court.
Learned Additional Solicitor General of India is requested to communicate this order to the
CBI immediately.
This PIL to come up for further hearing in respect of other issues on 17th August 2016 at 2:00
PM.
Order date: 12.8.2016
LA/-
(YASHWANT VARMA, J) (DILIP B BHOSALE, CJ)

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