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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 211 OF 2013

NISHU ...    PETITIONER(S)

VERSUS

COMMISSIONER OF POLICE,  DELHI & ORS.      ...  RESPONDENT (S)  

J U D G M E N T

RANJAN GOGOI, J.

1. This writ application under Article 32 of the Constitution  

seeks  directions  from  the  Court  for  registration  of  first  

information report under Sections 376-C, 376-D, 376(2)(n) of  

the Indian Penal Code; for the arrest of the accused and for  

their  prosecution  after  investigation  of  the  case  by  the  

Central Bureau of Investigation.  Appropriate action against  

the  officers  of  the  Delhi  and  Haryana  police  by  way  of  

departmental proceedings for their refusal/failure to register  

the FIR under the aforesaid sections of the Indian Penal Code  

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as well as the provisions of The Protection of Children from  

Sexual Offences Act,  2012 (hereinafter referred to as ‘the  

POCSO Act’) has also been prayed for.   

2. The facts, in short, are as follows.

The petitioner, who is represented by her father, claims  

to  be  a  minor  (17-1/2  years)  and  a  resident  of  village  

Sundana, Tehsil Kalanaur, District Rohtak.  According to the  

petitioner, she was kidnapped on 25.10.2013 by a group of  

nine persons who had kept her confined upto 8.11.2013.   It  

is  alleged  that  during  the  aforesaid  period,  the  accused  

persons, in different combinations, had repeatedly raped her  

and that one of the accused, named, Pradeep is a constable  

in  Haryana  Police.   The  petitioner  claims  that  after  her  

recovery from village Sirol, Sector 18, Gurgaon, Haryana on  

8.11.2013 she was produced before the Judicial  Magistrate  

First Class, Rohtak for recording her statement.  As she was  

under threat and intimidation she did not level any allegation  

of  rape  against  the  accused.   The  petitioner  alleges  that  

despite  her  medical  examination  by  the  doctor  on  

10.11.2013, a copy of the report of medical examination was  

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not furnished to her; neither was any FIR under Section 376-

D of the Indian Penal Code or the provisions of the POCSO  

Act registered against the accused persons who have been  

named in para 18 of the writ petition. It may be noted at this  

stage that the aforesaid writ petition was filed on 29.11.2013  

seeking  the  reliefs  earlier  noted  alongwith  direction  for  

payment of compensation to the petitioner and her family.

3. The respondent No. 1 i.e. Commissioner of Police, Delhi  

has filed an affidavit stating that inquiries have revealed that  

initially  a  FIR  (319/2013)  under  Sections  363/366A  dated  

26.10.2013 was registered in Police Station Kalanaur, District  

Rohtak, Haryana on the written complaint of the father of the  

petitioner.   It  is  further  stated  that  on  the  basis  of  the  

statement  made  by the  victim before  the  learned Judicial  

Magistrate First  Class,  alleging commission of rape by the  

accused named by her, a case has been registered and the  

accused persons have been arrested.  As the matter is under  

investigation by the Haryana Police, the first respondent has  

contended that no order/direction is warranted insofar as the  

said respondent is concerned.   

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4. Respondents 2 and 3 have filed an affidavit on 8.1.2014  

through the Superintendent of Police, Rohtak.   In  the said  

affidavit  it  is  stated  that  initially  FIR  No.  319/2013  dated  

26.10.2013 was registered at police station Kalanaur, District  

Rohtak under Sections 363, 366A and 120-B of the Indian  

Penal  Code  on the  written  complaint  of  the  father  of  the  

petitioner.  On the basis of the investigations carried out by  

the police, the petitioner was recovered from village Sirol,  

Sector-18, Gurgaon and produced before the Duty Magistrate  

(Judicial  Magistrate  First  Class)  Rohtak on 9.11.2013.  Her  

statement, which was to the effect that ‘she had herself left  

the  house’,  was  recorded  by  the  learned  Magistrate  on  

9.11.2013.  The respondents 2 and 3 have further stated that  

subsequently  the  petitioner  desired  to  make  a  further  

statement  which  was  refused  by  the  learned  Magistrate,  

Rohtak on two occasions i.e. 13.11.2013 and 29.11.2013.  As  

the  petitioner  persisted  with  the  said  request  another  

statement  made  by  her  was  recorded  under  Section  164  

Cr.P.C. by the learned Magistrate on 30.11.2013 wherein she  

had implicated  the  accused persons in  the  commission of  

rape during the period of her alleged confinement.   In view  4

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of the said statement of the petitioner, Section 376-D of the  

Indian Penal Code and Sections 4/6 of the POCSO Act were  

added to the FIR No. 319/2013 which was already registered.  

According to the Superintendent of Police, Rohtak all the nine  

accused persons have been arrested and are in custody.   

5. We have heard Mr. R.K. Kapoor, learned counsel for the  

petitioner, Mr. Rakesh K. Khanna, learned Additional Solicitor  

General  for  the  respondent  No.  1  and  Mr.  Ankit  Swarup,  

learned counsel for respondents 2 and 3.

6. Learned  counsel  for  the  petitioner  has  vehemently  

urged that the petitioner, after being recovered from village  

Sirol,  Sector-18,  Gurgaon,  Haryana  on  8.11.2013,  was  

unlawfully detained in the police station till  her  statement  

was recorded by the learned Judicial Magistrate First Class on  

9.11.2013.  It is further submitted that offences under the  

POCSO Act have been committed against the petitioner in  

addition to the offence under  Section 376-D of the  Indian  

Penal  Code.   Despite  the  seriousness  of  the  matter  the  

investigation,  it  is  alleged,  has  not  been  conducted  

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impartially which would justify appropriate intervention of the  

Court.

7. Shri  Rakesh  K.  Khanna,  learned  Additional  Solicitor  

General  appearing  for  the  first  respondent  has  submitted  

that no order or direction to the first respondent would be  

justified in view of the fact that the case has been registered  

by  the  Haryana  Police  and  has  been  investigated  by  the  

authorities  of  the  State  of  Haryana.   Shri  Ankit  Swarup,  

learned counsel for the respondents 2 and 3 has submitted  

that  on completion of  investigation chargesheet  has  been  

filed against all the nine accused who are in custody and are  

presently  lodged  in  Rohtak  Jail.   It  is  also  submitted  that  

charges  have been framed by the Trial  Court  against  the  

accused inter alia under Section   376-D IPC and Section 4/6  

of the POCSO Act; in fact, according to the learned counsel,  

the trial has also commenced in the meantime.

8. In view of what has been stated by the Superintendent  

of Police, Rohtak in the counter affidavit  filed on 8.1.2014  

and  as  chargesheet  has  been  filed  against  all  the  nine  

accused and the trial has commenced in the meantime it will  

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be  wholly  inappropriate  to  exercise  our  jurisdiction  under  

Article  32  of  the  Constitution.   The  allegations  and  

apprehensions expressed in the writ petition are not borne  

out  by  the  subsequent  facts,  as  stated  on  behalf  of  the  

respondents 2 and 3, which are not disputed.  In view of the  

above, we will have no occasion to pass any order save and  

except that the trial against the accused persons, which has  

already commenced, be concluded by the Trial  Court  with  

utmost  expedition.   We  make  it  clear  that  we  have  not  

expressed  any  opinion  on  the  merits  of  the  case  of  the  

respective parties.  Beyond the above, no further direction  

will be called for or justified.   

9. The writ petition consequently stands disposed of in the  

above terms.

...…………………………CJI. [P. SATHASIVAM]

.........………………………J. [RANJAN GOGOI]

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…..........……………………J. [N.V. RAMANA]

NEW DELHI,  APRIL 24, 2014.

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