- (1.) By this writ application under Article 226 of the Constitution of India, the writ applicant, a victim of rape, has prayed for the following reliefs: "10(A) Yours Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus directing the respondent no.1 to set up the Special Investigation Team chaired by a Lady Police Officer of the rank of Inspector General or Dy. Inspector General who is serving outside the Kachchh District and manned by such officers who are serving outside the Kachchh District for investigation of the offence in pursuance of the FIR; OR IN THE ALTERNATIVE (B) Your Lordships may be pleased to issue an appropriate writ, order or direction, directing the respondents to transfer the investigation to other investigating agency viz. CID, (Crime) led by a female investigating officer and/or to the Centre Bureau of Investigation, Gandhinagar with a further direction to submit regular reports of progress in the investigation to this Hon'ble Court. (C) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus directing the respondent no.1 to register the FIR against the persons who have disclose the identity of the petitioner in the press conferences and against the persons who are present in the said press conferences; (D) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus directing the respondents to register FIR against the persons who are pressurizing / threatening the petitioner and her family members for destroying the case in pursuance of FIR by not giving correct information to the investigating officer. (E) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or directing in the nature of mandamus in the nature of mandamus directing the respondent no.4 immediately to carry out the interrogation of Ms. Payal of Nalia and of Mr. Atul Thakkar of Bhuj on the basis of the information provided by the informant to the investigating officer and with further direction to initiate proceedings for their arrest and further directed to submit report to this Hon'ble Court; (F) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or directing in the nature of mandamus directing the respondent no.1 to cause departmental inquiry against the officer of respondent no.2 to 4 for not obeying the mandatory provisions of Section 157(1) of Cr.P.C. and for registering the FIR late with a direction to take appropriate disciplinary proceedings against the arraying officers; (G) During pendency and final hearing of this petition Your Lordships may be pleased to direct the respondent authorities to submit their action taken report before this Hon'ble Court for passing further interim directions; (H) Your Lordships may be pleased to pass such other and further order in the interest of justice which may be deed fit to this Hon'ble Court."
(2.) Let me preface my judgment with a recent pronouncement of the Supreme Court in the case of Dharam Pal vs. State of Haryana and others [Criminal Appeal No.85 of 2016 decided on 29th January 2016]. His Lordship Justice Dipak Mishra observed as under: "2. Cry for fair trial by the accused as well as by the victim sometimes remains in the singular and individualistic realm, may be due to the perception gatherable from the facts that there is an attempt to contest on the plinth of fairness being provoked by some kind of vengeance or singularity of "affected purpose"; but, irrefutably a pronounced and pregnant one, there are occasions when the individual cry is not guided by any kind of revengeful attitude or anger or venom, but by the distressing disappointment faced by the grieved person in getting his voice heard in proper perspective by the authorities who are in charge of conducting investigation and the frustration of a victim gets more aggravated when he is impecunious, and mentally shattered owing to the situation he is in and thereby knows not where to go, the anguish takes the character of collective agony. When the investigation, as perceived by him, is nothing but an apology for the same and mirrors before him the world of disillusionment that gives rise to the scuffle between the majesty and sanctity of law on one hand and its abuses on the other, he is constrained to seek intervention of the superior courts putting forth a case that his cry is not motivated but an expression of collective mortification and the intention is that justice should not be attenuated.
(3.) Justice, which is "truth in action" and "the firm and continuous desire to render to everyone which in his due" becomes a mirage for the victim and being perturbed he knocks at the doors of the High Court under Article 226 of the Constitution alleging that principle of fair and proper investigation has been comatosed by the investigating agency, for the said agency has crucified the concept of faith in the investigation which is expected to maintain loyalty to law and sustain fidelity to its purpose. In the case at hand, the assertions made with immense anguish gave rise to the question before the High Court whether some progress in trial would act as a remora in the dispensation of justice and the situation should be allowed to remain as it is so that an organic disorder is allowed to creep in and corrode and create a culdesac in administration of justice. The further question posed whether the nonapproach to the court prior to the stage of commencement of trial would be a peccadillo so as to usher in an absolutely indifferent, unconcerned and, in a way, biased investigation to rule and in the ultimate eventuate lead to guillotining of justice. The High Court having negatived the stand put forth by the appellant, the husband of the deceased, he has approached this Court by way of special leave. 8. The issue that arises for consideration is whether such a situation calls for issuance of direction for transfer of the investigation to the CBI. The High Court has declined to so direct as trial has commenced and some witnesses have been examined. The High Court has gone by the principle of "stage". When the matter was listed on 18.09.2015, this Court had directed a copy of the petition to be served on Mr. P.K. Dey, learned counsel who ordinarily appears for the CBI. The stand of the CBI is that the case does not fall within the guidelines laid down by this Court in State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others[(2010) 3 SCC 571]. 9. Learned counsel for the State has supported the order passed by the High Court and also emphasized that regard being had to the stage of the trial, there is no need for directing for investigation by another agency. 10. First, we intend to deal with the stand of the CBI and the principles laid down in Committee for Protection of Democratic Rights (supra). In the said case, the Constitution Bench, after examining the rival contentions in the context of the constitutional scheme, recorded the following conclusions: "(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. (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 2A 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 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, [pic]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." [emphasis added] ;