Lucknow Bench unsatisfied with official response.
Balangir : 14 October 2020 : The Allahabad High Court has said it is not satisfied with the explanation of the Uttar Pradesh government on why it had taken action against the district police chief of Hathras but not the District Magistrate (DM) over the alleged rape of a Dalit women and the hurried cremation of the victim , though it was admittedly a “collective decision”.
The action of the State authorities, though in the name of the law and order situation, was prima facie an infringement upon the human rights of the victim and her family, stated the court.
The Lucknow Bench also pulled up Additional Director General (Law and Order) Prashant Kumar and asked if it was proper for anyone not directly connected with the investigation to comment, even when the probe was pending. Mr. Kumar, who had controversially said that the FSL ( Forensic Science Laboratory ) report did not find semen in the victim’s body and hence ruled out rape, agreed that this should not happen.
Earlier, when the court asked Awanish Awasthi, Additional Chief Secretary-Home, why only the Superintendent of Police had been suspended but the DM was allowed to continue in his job, Mr. Awasthi said the first report of the SIT (Special Investigation Team) had indicted the Superintendent of Police. However, on being asked as whether the SIT had absolved the DM and if the role of the DM was the subject matter of the SIT probe, he stated it was not. “He could not give any satisfactory reply in this regard as to why the two officers had been treated differently,” said the court.
Mr. Awasthi then told court that the government would look into the question of allowing the present DM to continue in his post from the point of view of the investigation.
Family members of the victim and top State officials had on Monday appeared before the court and narrated their versions after the court had on October 1 taken up the matter of the alleged forced and hurried burial of the girl suo motu.
The High Court said that the investigation in the Hathras case — whether by the SIT or the Central Bureau of Investigation (CBI) — should be kept in full confidentiality and no report or post of it should be leaked in public. The court also directed the State to ensure the safety and security of the family of the deceased victim.
The Lucknow Bench of the Allahabad High Court, in an order dated October 12, also stated that no officer who was “not directly connected with the investigation should make any statement in public regarding commission of the offence alleged or otherwise based on evidence collected”.
This could lead to “unnecessary speculation and confusion amongst the masses, who may not be aware of niceties of law, thereby fuelling emotions on both sides,” observed Justices Pankaj Mithal and Rajan Roy.
The court on Monday also said that “without in any manner intending to interfere with the right of freedom of expression, we request the media as also the political parties to air their views in a manner which does not disturb social harmony and/or infringe upon rights of the victim’s family and that of the accused”.
No one should indulge in character assassination of the victim just as the accused should not be pronounced guilty before a fair trial, the judges noted.
The court noted that the facts and circumstances of the case ex facie reveal that the decision to cremate the victim in the night without handing over the body to the family members or seeking their consent was taken jointly by the administration at the local level and was implemented on the orders of the District Magistrate.
“The victim was at least entitled to decent cremation in accordance with her religious customs and rituals, which essentially are to be performed by her family,” said the court.
Sensitivities of the people which the Constitution recognises as fundamental rights, such as a right to decent burial or cremation as per traditions and customs followed by the family, have to be respected, the court noted.
If considerations of maintenance of law and order are pitted against such valuable rights, the situation needs to be handled deftly and responsibly with a proper appreciation of both the aspects as such valuable rights cannot be trampled or trifled casually or whimsically, especially when those likely to be deprived are of the downtrodden class, uneducated and poor, the court said.
The victim’s father, mother, elder brother, younger brother and elder brother’s wife narrated their versions on the matter to the Bench. The father of the deceased told court that neither he nor any member of the immediate family participated in the cremation on the intervening night of September 29 and 30, and that the administration cremated the body in the night itself despite their insistence to have the cremation in the morning.
The victim’s father pleaded that he wanted justice for his daughter but had no grudge against the officials, except that they refused to hand over the body of his daughter to the family and they were not allowed to cremate her in accordance with Hindu rituals.
The mother of the deceased lamented that she had wanted to see her daughter’s face but she was not allowed, and against her wishes, the body was cremated in the night. She broke down while narrating the entire episode.
The brothers of the victim submitted that the authorities acted in an high-handed manner. The sister-in-law of the deceased was “very sour” and stated that the officers “be-fooled the family”, and some even misbehaved with the relatives who were present and tried to stop the ambulance from proceeding to the cremation ground.
District Magistrate Praveen Kumar Laxkar submitted before court that looking into the sensitivity of the Babri Masjid demolition verdict due on September 30 and the law and order situation, and “intervention of political parties” in the Hathras case, in consultation with Commissioner of Police-Aligarh; Additional Director General-Agra; Inspector General-Aligarh; Superintendent of Police-Aligarh, and himself, “a collective decision” was taken to cremate the body in the night itself.
If the cremation had been delayed and undertaken in the morning, a crowd of 10,000 people would have collected, and a caste and political issue made, the DM said.
“The entire decision was taken in a bona fide manner to maintain the law and order situation, and that the father of the deceased was convinced for cremation in the night. It was on his consent only that the body was cremated,” the DM said.
The DM further submitted that the cremation was done with full honour and it was incorrect to suggest that the body was burnt by sprinkling kerosene.
The DM categorically stated that “no one from above or Lucknow” had instructed him to take such a decision or had directed the carrying out of the cremation at night. But in the same vein, he had stated that he was not aware if some instructions had been given by the State in this regard to senior officers who were involved in the collective decision, said the court.
The District Magistrate, however, could not satisfy the court about the observance of last rites while cremating the victim’s body as per the traditions and customs of the family, the court said.
Mr. Kumar, ADG (Law and Order), Lucknow, endorsed the statement of the DM- Hathras and stated that, in view of the security inputs from all sources, a bona fide decision was taken at the local level by the administration to cremate the body in the night, and that there was no extraneous reason such as destroying evidence, etc., in carrying out the cremation at night.
The court also asked him if he was aware of the amendments in law relating to the definition of rape, and that the mere absence of semen during forensic examination, though a factor for consideration, would not by itself be conclusive as to whether rape had been committed or not, if there was other admissible evidence.