Memorandum to Chief Justice of Bombay High Court – Complaint of rape against Dr Rustom Soonawalla #Rape #Vaw


6th June 2013

To

The Chief Justice,

High Court,

Bombay

Reference: Concerns of women’s groups regarding the manner in which the complaint against Dr. Rustom Sonawala is dealt with. (Anticipatory Bail Application No. 578 of 2013)

Sir,

We, the members of women’s groups, organisations and individuals are concerned about developments in the complaint of rape filed against Dr. Rustom Sonawala at Khar Police Station on 17.05.2013.

We have been fighting for the rights of victims in cases of sexual assault in Mumbai and various parts of the country for many decades. In view of the increasing number of cases of sexual assault and brutal rapes, laws regarding rape and sexual assault have been recently amended to bring in stringent punishments. After the Justice Verma Committee report and the recent happenings in the country, we felt that the Courts too were taking the issue of violence against women more seriously and sensitively.

 

Background: A 26 year old woman, who was taking treatment from Dr. Rustom Sonawala since August 2012, filed a complaint of rape against him on the evening of 17th May, 2013. The filing of the first information report as well as the medical examination of the complainant was concluded by 7 am of the 18th of May.

After the complainant and her husband returned home on the same day, 18th May, the police called them to Dadar to identify the doctor, as they had located his whereabouts in Parsi colony.  On locating and identifying the accused doctor, the two police personnel accompanied him in his car, asking the complainant to take a taxi. While the complainant as well as the police personnel reached the Khar police station, the accused Doctor managed to abscond while he was being accompanied by the police.

During protests that were being held against the doctor opposite his clinic, one of the neighbours informed some of the protestors, that the same doctor had also molested their daughter in the past.

This has raises several questions:

1.       Why did the police go to arrest the doctor in a taxi for which the complainant was made to pay and not in a police van?

2.       Why has no action been taken against the concerned police personnel and why have they not been suspended?

3.       Given the complicity of the entire machinery with the accused, how do we ensure a fair trial?

4.       How do we ensure that even the forensic and medical reports are not tampered with?

Further, the accused who had not been arrested and was absconding even after 10 days of the crime, on 29th May, 2013, moved the High Court seeking anticipatory bail, even as his application for anticipatory bail was pending before the Sessions Court at Greater Bombay, Mumbai. In the anticipatory bail application, the accused said through his lawyer that his blood and semen sample may be collected and he be given protection from arrest till the anticipatory bail application is finally decided in the Sessions Court. The victim’s advocate argued that the accused was absconding and in his absence no reliefs should be granted to him.
On 29th May, 2013 the Hon’ble Court passed an order directing the accused to deposit his passport and appear before the Khar Police Station. The Assistant Public Prosecutor was asked whether the court should pass an order of not arresting the accused or she would give an undertaking. The Assistant Public Prosecutor said that she would give an undertaking of not arresting the accused till his anticipatory bail was decided by the Hon’ble Sessions Court. The court asked by when they would do the medical examination and the Assistant Public Prosecutor said that there is no provision in law by which this medical examination can be done prior to arrest.  After her refusal to agree to do the medical test the court said it will hear the matter after vacation, that is, on 11th June, 2013 and till then the accused is protected, as the Assistant Public Prosecutor has given an undertaking regarding the same.

Sec. 54  of the Code of Criminal Procedure allows medical examination of the accused at the instance of the accused, if the examination of his body will afford evidence which will disprove commission by him of any offence or which will establish the commission by any other person of any offence against his body.

But the section is very clear that it is after arrest and that the accused will have to make an application to the Magistrate.

We fear that the Order of the Hon’ble High Court sets a wrong and dangerous precedent in terms of rape matters for many reasons.

The Accused was not present before the court and yet he was granted relief, which is never done, especially in rape matters. The medical evidence of semen, blood, injuries cannot be the sole basis of deciding whether rape was committed.  At present the law defines rape by penetration, [that is, penetration is enough to prove rape,]; nowhere does it say that it has to be coupled with the presence of DNA.

The FIR states that there was penetration; the presence of DNA and other factors is corroborative evidence.

If this order becomes final it not only  means that the rape accused can approach the courts to seek this kind of protection, but it will also mean that cases will be closed on the basis of DNA reports. And given the circumstances related above, one cannot be sure that these reports cannot not doctored or tampered with. DNA test can be evaluated during trial.

This also takes us to the conclusion that if traces of semen are not found, there is no rape. This goes counter to the recent Criminal Amendment Act, 2013.

The current situation also gives the accused the freedom to tamper with the evidence and witnesses considering the fact he was able to connive with police and abscond right in their presence.

The Hon’ble Court before giving relief to the Doctor ought to have considered the fact that the Doctor is a fugitive from Justice.

In fact he has obstructed the legal system by conniving with police personnel. It is obvious that in some way he was able to exercise undue influence on the police and thereby he could go absconding right in presence of the policemen.

The Hon’ble Court instead of granting him relief should have instructed him to first submit himself before the investigating team and also should have directed that a complaint be registered against the Doctor as well as the police for subverting the process by using undue influence.

It is indeed a question before all us citizens and women specifically, whether Justice is the prerogative of rich people only.

It is a worrying thought that this sort of judgment will act as a precedent in future cases. This goes counter to the present ethos after the 16th December 2012 rape case and its aftermath.
We hope you will relook at the judgment and do the needful.

Yours sincerely

Forum Against Oppression of Women, Mumbai

Aawaaz-E-Niswan

Akshara

SAKHYA (women’s guidance cell)

Women Research and Action Group (WRAG)

SNEHA

VACHA

CORO (for literacy)

YUVA

Samajwadi Mahila Sabha

Stree Mukti Sanghatana

Anagha Sarpotdar

Kamayani Bali Mahabal

Address: 29, Bhatia Bhuvan, Babrekar Marg, Off Gokhale Road, Dadar (West), Bombay – 400 028

Email: faowindia@yahoo.co.in

cc- Home Minister R R Patil

 

Supreme Court of India directs registration of over 75,000 cases of missing children




May 21, 2013, New Delhi
: The Hon’ble Supreme Court of India issued landmark directions for the protection of missing children and other child victims of crimes in the country. In a petition filed by Bachpan Bachan Andolan (BBAon the issue of missing children and trafficking, a bench headed by Hon’ble Chief Justice of India Mr. Justice Altamas Kabir and comprising of Hon’ble Mr. Justice Vikramajit Sen and Hon’ble Mr. Justice Sharad Arvind Bobde issued the directions.

Accepting the contentions made by the petitioner BBA, the Hon’ble Supreme Court issued the following directions including:-

  • All cases of missing children in India to be registered as a cognizable offence (as First Information Report) and investigated.
  • In cases where First Information Reports have not been lodged at all and the child is still missing, an F.I.R. should be lodged within a month – this figure is 75,808 for the period 2009 – 2011 alone.
  • In all missing children cases, there will be a presumption of the crime of kidnapping or trafficking unless proven otherwise from investigation – this is a landmark precedent as for the first time of “presumption of crime” for vulnerable sections of society is recognised.
  • All complaints regarding children (for non cognizable offences), to be investigated after referring them to a magistrate.
  • Each police station should have, at least, one Police Officer, especially instructed and trained and designated as a Juvenile Welfare Officer to investigate crimes against children.
  • National Legal Services Authority (NALSA) to appoint para-legal volunteers, so that there is, at least, one para- legal volunteer, in shifts, in the police station to keep a watch over the manner in which the  complaints  regarding  missing  children  and other offences against children, are dealt with.
  • A computerized programme (website), which  would  create  a network between the Central Child Protection Unit as the Head  of  the Organization and all State  Child  Protection  Units,  District Child Protection Units, City  Child  Protection Units,  Block  Level  Child Protection Units,  all  Special  Juvenile  Police  Units,  all  Police stations,  all  Juvenile  Justice  Boards  and   all Child Welfare Committees, etc. to be created as a central data bank.    
  • Photographs of the recovered child to be put up on  the  website and  through the newspapers and even on the T.V. so that the parents of the missing child could locate their  missing child and recover him or her from the  custody  of  the  police. 
  • A  Standard Operating Procedure (SoP) must be developed to handle the cases  of  missing  children and to invoke appropriate provisions of law where trafficking, child labour, abduction,  exploitation and similar issues are disclosed during investigation or after the recovery  of  the  child. 
  • BBA to assist in developing the Standard Operating Procedure (SoP), and also, BBA to be the nodal agency for All India Legal Aid Cell on Child Rights, flagship scheme of NALSA to provide legal aid to any child in need of care and protection in the country.
  • A missing child has been defined as, “a person below eighteen years of age, whose whereabouts are not known to  the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child, whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the later part of the Juvenile Act, until located and/or his/her safety/well being is established.”

  • Even after recovery of the missing child, the police  shall  carry  out  further investigation  to  see  whether  there  is  an  involvement  of any trafficking in the procedure by which the child went missing. 
  • The State authorities shall arrange for adequate Shelter Homes to be provided for missing children, who are  recovered and do not have any place to go to within 3 months. 

Arguing on the behalf of petitioner Bachpan Bachan AndolanMr. H.S. Phoolka, Senior Advocate said “Every hour 10 children go missing. Out of these only one case is registered and investigated. There is no hope for the poor parents whose children go missing”.

BBA had under taken a pioneering research for three years on the issue of missing children, following which this writ petition (Writ Petition Civil 75/ 2012 – Bachpan Bachao Andolan vs Union of India and Others) has been filed.

As per official government data, in India, during the period from 2009 to 2011 number of children that have gone missing are 2, 36, 014 and out of them 75,808 are still untraced. However, only 34,899 FIRs have been registered in all. These directions from Supreme Court will come as a relief to those hundreds of thousands of parents whose children have been kidnapped and are still untraced without any assistance from law enforcement authorities.

Mr. Kailash Satyarthi, Founder, BBA said “It is a watershed moment not only in our three decade fight in restoring childhood but has also brought a fresh lease of hope for hundreds of thousands of missing children and their hapless parents, whose cries remained unheard due to the absence of legal protection and apathy of enforcement machinery. Our argument that children do not disappear in thin air but go missing because of an organized nexus of traffickers and mafias, has been finally upheld by the highest court of the land today”.

Mr. R. S. Chaurasia, Chairperson, BBA added that, “BBA will rigorously follow the enforcement of this landmark judgment and extends its support to the government in this regard”.

For more information please contact:-

Om Prakash

9015125007

 

Bombay High court issues circular on sexual assault cases #womensday #justice


Women on Top: How Real Life Has Changed Women'...

 

High Court, Bombay
No.RG-1611-
of 2013
CIRCULAR
Directions have already been issued to assign cases involving
sexual assault against women exclusively to the Courts presided over by
women Judicial Officers in your District/ establishment.
It is a settled law that cases involving sexual assault against
women are required to be dealt with greater sensitivity.
In these cases, women are the victims of crime and for the
purpose of enabling victims to give their evidence in a stress-free
atmosphere and without any fear or embarrassment, it is desirable that all
staff members i.e. Bench Clerks, Stenographer, Interpreter, Typist-cum-
Clerk, Havildar/Peons, are all women.

 

8th March being a Women’s Day, the Hon’ble the Chief Justice
has directed that the above instructions be implemented immediately from
tomorrow, the 8 th March, 2013, itself.

( S.B. Shukre )
Registrar General

 

7 Bangladeshi juveniles are languishing in Indian Home, even after completion of their terms


28th November 2012

 

To

The Hon’ble Chairman

National Human Rights Commission

Faridkot House

Copernicus Marg

New Delhi – 1

 

Hon’ble Sir,

 

We write to draw your attention to the situation that seven minor boys (details are furnished in the list herein below) areillegally detained in ‘Anandashram’ Home, an observation home for children in conflict with law in Berhampore, West Bengal. They were arrested long back and framed under penal charges.

 

Information has been received that enquiry against them has already been completed under the Juvenile Justice (Care & Protection of Children) Act, 2000. But till date they have been detained in the home in violation of sections 38 and 39 of the Act.  

 

Section 38 & 39 of the Juvenile Justice (Care & Protection of Children) Act, 2000 states that—-

 

Section 38- Transfer. – (1) If during the inquiry it is found that the child hails from the place outside the jurisdiction of the Committee, the Committee shall order the transfer of the child to the competent authority having jurisdiction over the place of residence of the child.

(2) Such juvenile or the child shall be escorted by the staff of the home in which he is lodged originally.

(3) The State Government may make rules to provide for the travelling allowance to be paid to the child.

 

Section 39- Restoration. – (1) Restoration of and protection to a child shall be the prime objective of any children’s home or the shelter home.

(2) The children’s home or a shelter home, as the case may be, shall take such steps as are considered necessary for the restoration of and protection to a child deprived of his family environment temporarily or permanently where such child is under the care and protection of a children’s home or a shelter home, as the case may be.

(3) The Committee shall have the powers to restore any child in need of care and protection to his parent, guardian, fit person or fit institution, as the case may be, and give them suitable directions.

Explanation.- For the purposes of this section “restoration of child” means restoration to-

(a) parents;

(b) adopted parents;

(c) foster parents.—-

 

 

The children are eligible for immediate release and should be repatriated back to Bangladesh at the earliest in co-ordination with the respective High Commission.

 

We request you to look into this matter and take immediate steps towards his release in coordination with the government of India and initiate the process of repatriation so that the child can go back to his country without delay.

It has been months now that the children are still in the observation home and we fear that he will face indefinite stay if urgent action towards his release and repatriation is not taken.

 

We urge you to take the following action at the earliest:

  • Coordinate with Ministry of External Affairs & Ministry of Home Affairs,  Government of India; Government of West Bengal and Juvenile Justice Board, Berhampore, Murshidabad, West Bengal to take immediate steps towards release and restoration of the children
  • Provide consular services and a lawyer for the children in case the children have no legal representation.
  • Initiate action towards repatriation of the children so that the children can be sent back to the home country as soon as the child is released.
  • Ensure safety and rehabilitation of the children post release and post repatriation in lieu of the difficult time spent in a custodial setting in an observation home for months now.
  • We also urge that proper and effective steps should be taken from now on so that no child arrested  either by police or Border Security Force under the Foreigners’ Act’ is detained in custody and they must immediately be sent to their homes.  

 

We hope that you would share our concern for the children towards their safety and well-being in order to avoid any circumstance that leads to injustice.


Kindly acknowledge receipt of this letter.

 

Thanking You

Yours truly,

 

 

 

Kirity Roy

Secretary, MASUM

&

National Convener, PACTI

          Name and details

Name & Father’s name Address Age Date of arrest Case reference Sections charged
Jamil Hossain, s/o Mr. Ajahar Ali village – Bhabanipur, Post Office- Dubal Hati, Police Station and District- Nowgaon, Bangladesh 16 years 20.11.10 Habibpur Police Station Caseno.188/10, dated 20.11.12 U/S 14 (a) (b) of Foreigner’s Act
Helal Ali, s/o Mr. Asraful Ali village +Post Office- Char Alatuli, Sarkarpara, District- Chapai Nawabgunj, Bangladesh 13 years 25.05.11 Lalgola Police Station Case no. 242/11 dated 25/05/2011 U/S 14(a) and (b) Foreigner’s Act
Selim Sekh, s/o Mr. Sadek Sekh Village -Tarapur P.O. Sahapur Police Station-
Shibgunj, Dist-Chapai Nawabgunj, Bangladesh
17 years 20.08.11 Baishnabnagar P.S. Case no-206/11
dated 20/08/2011
U/S 14 (a) and (b) Foreigner’s Act
Abdul Jabbar, s/o  Mr. Rabiul Islam Village- Bhuglaori Pakhiyapara, P.O.Babupur Police Station- Shingong District-  Chapai Nawabgunj, Bangladesh 17 years 27.08.11 Baishnabnagar PS  Case no 215/11 dated 27/08/2011 U/S 279/411 of
Indian Penal Code and 14 (a) & (b) Foreigner’s Act
Anarul Islam, s/o Mr. Safiqul Islam Village Sahapara ,Police Station- Shibgunj, District Chapai Nawabgunj, Bangladesh

 

 

 

16 years 24.08.11 Baishnabnagar P.S. Case
no.210/11 dated 24/08/2011
U/S 14 (a) and (b) Foreigner’s Act
Borjahan Ali, s/o Md. Islam Ali village Nomo Jaganathpur P.O – Hasanpur,  P.S- Shibgunj Dist-Chapai Nawabgunj, Bangladesh 17 years 07.09.11 Baishnabnagar
PS Case no. 233/11 dated 7/9/2011
U/S 14 (a) and (b) Foreigner’s Act
Abubakkar Siddique, s/o Late Arsad Ali Village Thutapara, P.O- Sahapur,P.S- Shibgunj, Dist –  Chapai Nawabgunj, Bangladesh 17 years 02.01.12 Baishnabnagar PS Case no.  4/12 dated 02.01.12 U/S 447/332/353/34of Indian Penal Code, 3 of The Prevention of Damage to Public Property Act and 14 (a), (b) and (c) Foreigner’s Act

 


Kirity Roy
Secretary
Banglar Manabadhikar Suraksha Mancha
(MASUM)
&
National Convenor (PACTI)
Programme Against Custodial Torture & Impunity
40A, Barabagan Lane (4th Floor)
Balaji Place
Shibtala
Srirampur
Hooghly
PIN- 712203
Tele-Fax – +91-33-26220843
Phone- +91-33-26220844 / 0845
e. mail : kirityroy@gmail.com
Web: www.masum.org.in