PARIVARTAN KENDRA & ANR Vs. U.O.I & ORS
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 164 - Recording of confessions and statements
Section 32 - Remedies for enforcement of rights conferred by this Part
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 867 of 2013, Judgment Date: Dec 07, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 867 OF 2013
Parivartan Kendra ….Appellant(s)
versus
Union of India and others ….Respondent(s)
J U D G M E N T
| |
|M.Y. Eqbal, J.: |
By way of present writ petition filed in public interest under
Article 32 of the Constitution of India, the petitioner – a registered NGO
seeks to highlight the plight of the acid attack victims and the inadequacy
how the compensation payable to the victims as per the orders of the Apex
Court in Laxmi vs. Union of India (in Writ Petition (Crl.) No.129 of 2006).
Petitioner also highlights the lack of a legal guarantee to free medical
care, rehabilitative services or adequate compensation under the Survivor
Compensation Schemes.
2. The petitioner highlighting the plight of two dalit girls of Bihar,
who were attacked around midnight of October 21, 2012 by four assailants
who threw acid on the face and bodies of the girls while they were sleeping
on their rooftops. It is alleged that these young assailants used to
harass the elder sister on the streets, market and in the auto rickshaw
while she was going to computer classes or to work. This victim wanted to
be a computer engineer and used to go to college regularly and supported
her family working as a daily wage worker. However, these assailants used
to make sexual advances towards her, pass lewd comments, and also used to
pull her dupatta. They terrorized her and her family members by roaming
near her house on their motorcycles, tore the curtains of their house and
told her that if she did not heed to their demands and agree to have sexual
relations with them they would damage and destroy her face.
3. In the aforesaid midnight, while both sisters were sleeping,
assailants Anil Rai, Ghanshyam Rai, Badal and Raja climbed upon the roof
and Anil covered the elder sister’s mouth so that she could not scream and
Ghanshyam and Raja held her legs so that she could not move. When Anil Rai
was pouring the acid on her body and face, the acid also fell on her
sister’s body and burnt her arm. After the attack, these men did not make
any effort to flee as they wanted to stay and enjoy the moment. As the
acid started burning the girls, the girls started screaming and crying
waking up their parents, who rushed to the rooftop. Upon this, the
assailants fled. The victims were rushed to the Patna Medical College and
Hospital. According to the petitioner, the doctors arrived only the next
morning and did not give them proper treatment and the family had to buy
all the medicines on their own. Thereafter, victims’ family was given
Rs.2,42,000/- from the Government of Bihar for the treatment of both. It
has been contended by the petitioner that till the filing of this writ
petition more than Rs. 5 lakhs had already been spent on their treatment
and still the victims require more treatment.
4. It has been submitted by the petitioner that proper and adequate
treatment was not given to the victim. The Patna Hospital waited for more
than a month to conduct elder sister’s grafting surgeries. Three grafting
surgeries were performed on the elder sister. It is claimed that all these
three surgeries were not performed properly and that the Hospital staff and
doctors mistreated the victim and their family as they belonged to a lower
caste. With the help of the petitioner-Society, the victim was
transferred to Safdarjung Hospital, Delhi on 5th April, 2013, where she
finally received proper treatment. It has been further contended by the
petitioner that the Police also arrested the four perpetrators a month
after the attack in November, 2012 in response to intense pressure from
social organizations and the media. On 8.2.2013, the IG of Police had made
a statement in an interview that the statement of the victim would be taken
under Section 164 of the Criminal Procedure Code. However, according to
the petitioner, no such statement had been taken till filing of the writ
petition. The victim and her family are, therefore, appalled by the
treatment they have received at the hands of the Patna Hospital, the Police
and the Government of Bihar.
5. By way of present writ petition, the petitioner has sought justice,
compensation and restoration of dignity of the survivors of the acid
attack, and also the assurance that these horrific events are not repeated
elsewhere. It is contended that despite orders and directions of the Apex
Court in Laxmi’s case (supra), acid is still readily available to most of
the population in India and the acid attackers are living with impunity,
and the victims are not in a position to afford basic care or services.
Since buying acid is simple, it is being used to settle most minor
disputes. An acid attack survivor needs surgeries throughout his/her
lifetime with each surgery costing around Rs.3 lakhs. It has been further
pleaded by the petitioner that this crime is mainly committed in four
countries of the world, namely, Bangladesh, Pakistan, Cambodia and India.
All the other three countries have engaged in paving the way to an
effective remedy for the survivors of the victims. Petitioner contends
that Bangladesh passed a law in 2002, which is much stronger law than the
Indian Law as Indian Law neither effectively address the gravity of acid
attacks nor does it adequately help the acid attack survivors.
6. The petitioner submits that the failure of the States to provide
compensation under Survivor Compensation Schemes have caused the survivors
to be isolated from all sections of society as they are unable to leave
their house because of their disfigurements. The compensation of Rs. 3 Lakh
does not cover the entire expenses incurred by an acid attack victim. The
petitioner further contends that the Union of India has not developed any
standard treatment and management guidelines; public health facilities
etc., to treat acid attack victims. The petitioner has sought development
of comprehensive rehabilitation scheme for acid attack survivors i.e.,
housing, education and employment.
7. The petitioner has prayed for issuance of writ of mandamus to the
State of Bihar to reimburse Rs. 5 lakh to the victim’s family which is the
amount spent on her treatment so far and for any other expenditure incurred
on the treatment of the minor sister, and to provide compensation of at
least Rs.10 Lakhs to the victims’ family in lieu of their pain and
suffering. The petitioner has also inter alia prayed for issuance of writ
of mandamus or directions to develop a standard treatment and management
guidelines for the treatment and handling of acid attack victims by
constituting a panel of experts; to direct all private hospitals to provide
free treatment in acid attack cases and to have pictorial displays with the
first aid and primary care protocols and guidelines to neutralize the acid
and stabilize the survivor in the all Public Health Centres, sub-centres
and government hospitals. Petitioner has also prayed for inclusion of acid
attacks in the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act and to reform educational programs in primary school to
understand the gravity of violence against women.
8. We have heard Mr. Colin Gonsalves, learned senior counsel appearing
for the petitioner, and learned counsel appearing for the Union of India,
State of Bihar and other States.
9. Before we proceed further, we would like to go through the orders
passed by the Apex Court in the case of W.P. (Crl.) No. 129 of 2006 titled
as Laxmi vs. Union of India, dealing with a similar case of acid attack
victim. On 18.07.2013, this Court passed the following order:
“6. The Centre and States/Union Territories shall work towards making the
offences under the Poison Act, 1919 cognizable and non-bailable.
7. In the States/Union Territories, where rules to regulate sale
of acid and other corrosive substances are not operational, until such
rules are framed and made operational, the Chief Secretaries of the
concerned States/Administrators of the Union Territories shall ensure the
compliance of the following directions with immediate effect:
(i) Over the counter, sale of acid is completely prohibited unless the
seller maintains a log/register recording the sale of acid which will
contain the details of the person(s) to whom acid(s) is/are sold and the
quantity sold. The log/register shall contain the address of the person to
whom it is sold.
(ii) All sellers shall sell acid only after the buyer has shown:
a) a photo ID issued by the Government which also has the address of
the person.
b) specifies the reason/purpose for procuring acid.
(iii) All stocks of acid must be declared by the seller with the concerned
Sub-Divisional Magistrate (SDM) within 15 days.
(iv) No acid shall be sold to any person who is below 18 years of age.
(v) In case of undeclared stock of acid, it will be open to the concerned
SDM to confiscate the stock and suitably impose fine on such seller up
to Rs. 50,000/-
(vi) The concerned SDM may impose fine up to Rs. 50,000/- on any person who
commits breach of any of the above directions.
8. The educational institutions, research laboratories, hospitals,
Government Departments and the departments of Public Sector Undertakings,
who are required to keep and store acid, shall follow the following
guidelines:
(i) A register of usage of acid shall be maintained and the same shall be
filed with the concerned SDM.
(ii) A person shall be made accountable for possession and safe keeping
of acid in their premises.
(iii) The acid shall be stored under the supervision of this person and
there shall be compulsory checking of the students/personnel leaving the
laboratories/place of storage where acid is used.
9. The concerned SDM shall be vested with the responsibility of taking
appropriate action for the breach/default/violation of the above
directions.
10. Section 357A came to inserted in the Code of Criminal Procedure, 1973
by Act 5 of 2009 w.e.f. 31.12.2009. Inter alia, this Section provides for
preparation of a scheme for providing funds for the purpose of compensation
to the victim or his dependents who have suffered loss or injury as a
result of the crime and who require rehabilitation.
11. We are informed that pursuant to this provision, 17 States and
7 Union Territories have prepared 'Victim Compensation Scheme' (for short
"Scheme"). As regards the victims of acid attacks the compensation
mentioned in the Scheme framed by these States andUnion Territories is un-
uniform. While the State of Bihar has provided for compensation of
Rs. 25,000/- in such scheme, the State of Rajasthan has provided for Rs. 2
lakhs of compensation. In our view, the compensation provided in the Scheme
by most of the States/Union Territories is inadequate. It cannot be
overlooked that acid attack victims need to undergo a series of plastic
surgeries and other corrective treatments. Having regard to this problem,
learned Solicitor General suggested to us that the compensation by the
States/Union Territories for acid attack victims must be enhanced to at
least Rs. 3 lakhs as the after care and rehabilitation cost. The suggestion
of learned Solicitor General is very fair.
12. We, accordingly, direct that the acid attack victims shall be paid
compensation of at least ` 3 lakhs by the concerned State
Government/Union Territory as the after care and rehabilitation cost. Of
this amount, a sum of Rs. 1 lakh shall be paid to such victim within 15
days of occurrence of such incident (or being brought to the notice of the
State Government/ Union Territory) to facilitate immediate medical
attention and expenses in this regard. The balance sum of ` 2 lakhs shall
be paid as expeditiously as may be possible and positively within two
months thereafter. The Chief Secretaries of the States and the
Administrators of the Union Territories shall ensure compliance of the
above direction.”
10. On 3rd December, 2013, in Laxmi’s case (supra), when the affidavit of
State of Haryana was placed before the Bench, in which it stated that the
Government of Haryana is in the process of framing a scheme for full
medical treatment, short term as well as long term, for specialised plastic
surgery, corrective surgeries, providing specialised psychological
treatment to the acid victims to help them to come out of the horror and
trauma of the acid attack and their rehabilitation, this Court directed the
Chief Secretaries of the States (other than Haryana) and the administrators
of the Union Territories to file affidavit and indicate to this Court, the
State's view in bearing 100% cost of treatment of the acid victims in line
with the decision taken by the Government of Haryana and also with regard
to framing of scheme on the lines of Haryana Government for medical
treatment at specialised hospitals having facility for plastic surgery,
corrective surgery and psychological as well as other treatment to the acid
victims. This Court further directed the Chief Secretaries of the
States and Administrators of the Union Territories to issue
necessary instructions to the Police Stations within their respective
State/Union Territory that as and when an FIR is lodged with the police
relating to acid attack, the concerned Police Station will send a
communication to the jurisdictional S.D.M. about receipt of such
information. Upon receipt of such information, the jurisdictional S.D.M.
shall then make inquiry into the procurement of acid by the wrong doer and
take appropriate action in the matter.
11. While disposing of the writ petition of Laxmi versus Union of India,
this Court inter alia held, thus:-
“10. We have gone through the chart annexed along with the affidavit filed
by the Ministry of Home Affairs and we find that despite the directions
given by this Court in Laxmi v. Union of India (2014) 4 SCC 427], the
minimum compensation of Rs. 3,00,000/- (Rupees three lakhs only)
per acid attack victim has not been fixed in some of the
States/Union Territories. In our opinion, it will be appropriate if the
Member Secretary of the State Legal Services Authority takes up the issue
with the State Government so that the orders passed by this Court are
complied with and a minimum of Rs. 3,00,000/- (Rupees three lakhs only) is
made available to each victim of acid attack.
11. From the figures given above, we find that the amount will not be
burdensome so far as the State Governments/Union Territories are concerned
and, therefore, we do not see any reason why the directions given by this
Court should not be accepted by the State Governments/Union Territories
since they do not involve any serious financial implication.
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13. Insofar as the proper treatment, aftercare and rehabilitation of the
victims of acid attack is concerned, the meeting convened on 14.03.2015
notes unanimously that full medical assistance should be provided to the
victims of acid attack and that private hospitals should also provide free
medical treatment to such victims. It is noted that there may perhaps be
some reluctance on the part of some private hospitals to provide free
medical treatment and, therefore, the concerned officers in the State
Governments should take up the matter with the private hospitals so that
they are also required to provide free medical treatment to the victims
of acid attack.
14. The decisions taken in the meeting read as follows:
• The private hospitals will also be brought on board for compliance and
the States/UTs will use necessary means in this regard.
• No hospital/clinic should refuse treatment citing lack of specialized
facilities.
• First-aid must be administered to the victim and after stabilization, the
victim/patient could be shifted to a specialized facility for further
treatment, wherever required.
• Action may be taken against hospital/clinic for refusal to treat victims
of acid attacks and other crimes in contravention of the provisions of
Section 357C of the Code of Criminal Procedure, 1973.
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17. We, therefore, issue a direction that the State
Governments/Union Territories should seriously discuss and take up the
matter with all the private hospitals in their respective
State/Union Territory to the effect that the private hospitals should not
refuse treatment to victims of acid attack and that full treatment should
be provided to such victims including medicines, food, bedding and
reconstructive surgeries.
18. We also issue a direction that the hospital, where the victim of
an acid attack is first treated, should give a certificate that the
individual is a victim of an acid attack. This certificate may be utilized
by the victim for treatment and reconstructive surgeries or any other
scheme that the victim may be entitled to with the State Government or
the Union Territory, as the case may be.
19. In the event of any specific complaint against any private hospital or
government hospital, the acid attack victim will, of course, be at liberty
to take further action.
20. With regard to the banning of sale of acid across the counter, we
direct the Secretary in the Ministry of Home Affairs and Secretary in the
Ministry of Health and Family Welfare to take up the matter with the State
Governments/Union Territories to ensure that an appropriate notification to
this effect is issued within a period of three months from today. It
appears that some States/Union Territories have already issued such a
notification, but, in our opinion, all States and Union Territories must
issue such a notification at the earliest.
21. The final issue is with regard to the setting up of a Criminal Injuries
Compensation Board. In the meeting held on 14.03.2015, the unanimous view
was that since the District Legal Services Authority is already constituted
in every district and is involved in providing appropriate assistance
relating to acid attack victims, perhaps it may not be necessary to set up
a separate Criminal Injuries Compensation Board. In other words, a
multiplicity of authorities need not be created.
22. In our opinion, this view is quite reasonable. Therefore, in case of
any compensation claim made by any acid attack victim, the matter will be
taken up by the District Legal Services Authority, which will include the
District Judge and such other co-opted persons who the District Judge feels
will be of assistance, particularly the District Magistrate, the
Superintendent of Police and the Civil Surgeon or the Chief Medical Officer
of that District or their nominee. This body will function as the Criminal
Injuries Compensation Board for all purposes.”
12. The above mentioned direction given by this Court in Laxmi’s case
(supra) is a general mandate to the State and Union Territory and is the
minimum amount which the State shall make available to each victim of acid
attack. The State and Union Territory concerned can give even more amount
of compensation than Rs.3,00,000/- as directed by this Court. It is
pertinent to mention here that the mandate given by this Court in Laxmi’s
case nowhere restricts the Court from giving more compensation to the
victim of acid attack, especially when the victim has suffered serious
injuries on her body which is required to be taken into consideration by
this court. In peculiar facts, this court can grant even more compensation
to the victim than Rs. 3,00,000/-.
13. We have come across many instances of acid attacks across the
country. These attacks have been rampant for the simple reason that there
has been no proper implementation of the regulations or control for the
supply and distribution of acid. There have been many cases where the
victims of acid attack are made to sit at home owing to their difficulty to
work. These instances unveil that the State has failed to check the
distribution of acid falling into the wrong hands even after giving many
directions by this Court in this regard. Henceforth, a stringent action be
taken against those erring persons supplying acid without proper
authorization and also the concerned authorities be made responsible for
failure to keep a check on the distribution of the acid.
14. When we consider the instant case of the victims, the very sight of
the victim is traumatizing for us. If we could be traumatized by the mere
sight of injuries caused to the victim by the inhumane acid attack on her,
what would be the situation of the victim be, perhaps, we cannot judge.
Nonetheless we cannot be oblivious of the fact of her trauma.
15. From perusal of the record of the case, it is found that elder sister
suffered 28 % burns on her body and 90% on her face, owing to the alleged
brutal attack on her. Due to the acid attack, the victim had undergone
several surgeries, and has to undergo many more corrective and curative
surgeries for her treatment.
16. Admittedly, three skin grafting surgeries were conducted by the PMCH
but they were all improperly conducted as testified at Sarfdarjung
Hospital. The victim, was brought to Delhi by the petitioner and in Delhi
some skin grafting surgeries were again conducted at the Sarfdarjung
Hospital for Neck, Lips, Eyes, Nose, Arm, Forehead and Ear. Further skin
grafting surgeries were also conducted at Fortis Hospital for Neck, Lips,
Nose, Eye and Arm. In the opinion of victim’s doctor also, she would be
required to undergo multiple corrective and curative operations and medical
support for the rest of her life. Victim would be required to have
corrective and curative surgeries for Neck, Lips, Eyes, Nose, Arm,
Forehead, Ears, Breasts and Elbow. Apart from the above medical
conditions/treatment, which she is required to undergo, there are many
other consequences, which an acid attack brings out in the life of the
victim.
17. Considering the plight of the victim we can sum up that:
the likeliness of the victim getting a job which involves physical exertion
of energy is very low.
the social stigma and the pain that she has to go through for not being
accepted by the society cannot be neglected. Furthermore, the general
reaction of loathing which she would have to encounter and the humiliation
that she would have to face throughout her life cannot be compensated in
terms of money.
as a result of the physical injury, the victim will not be able to lead a
normal life and cannot dream of marriage prospects.
since her skin is fragile due to the acid attack she would have to take
care of it for the rest of her life. Therefore, the after care and
rehabilitation cost that has to be incurred will have huge financial
implications on her and her family.
18. On perusal of various contentions and evidence, we find it imperative
to mention that even after this Court having passed an order dated
06.02.2013 directing the Union of India and States to implement
compensation payable to acid attack victims by creation of a separate fund,
only 17 States have been notified of the Victim Compensation Schemes (VSC).
Out of which 7 states and 4 Union territories have not initiated the VSC.
Even in those States where the Scheme has been implemented a meager
compensation ranging between Rs.25,000/- to Rs. 2 lakhs is provided for
medical care. And many States have not provided any compensation for
rehabilitation at all. In the present case, the Govt. of Bihar has fixed a
pitiable amount of Rs.25,000/- for the victims of acid attack.
19. The Guidelines issued by orders in the Laxmi’s case are proper,
except with respect to the compensation amount. We just need to ensure
that these guidelines are implemented properly. Keeping in view the impact
of acid attack on the victim on his social, economical and personal life,
we need to enhance the amount of compensation. We cannot be oblivious of
the fact that the victim of acid attack requires permanent treatment for
the damaged skin. The mere amount of Rs. 3 lakhs will not be of any help to
such a victim. We are conscious of the fact that enhancement of the
compensation amount will be an additional burden on the State. But
prevention of such a crime is the responsibility of the State and the
liability to pay the enhanced compensation will be of the State. The
enhancement of the Compensation will act in two ways:-
1. It will help the victim in rehabilitation;
2. It will also make the State to implement the guidelines properly as
the State will try to comply with it in its true sprit so that the crime of
acid attack can be prevented in future.
20. Having regard to the problems faced by the victims, this Court in the
case of Laxmi v. Union of India & Ors by an order dated 18.07.2013,
enhanced the compensation, stating that, “at least Rs.3 Lakhs must be paid
to the victims of acid attacks by the concerned Government”. Therefore, a
minimum of Rs.3 Lakhs is to be awarded by the Government to each victim of
acid attack. In the present case, a minimum amount of Rs. 6 Lakhs has to be
awarded to the sisters.
21. In peculiar facts of the case, we are of the view that victim
Chanchal deserves to be awarded a compensation more than what has been
prescribed by this Court in the Laxmi’s case (supra). Though in this case
we are not issuing any guidelines different from the guidelines issued in
Laxmi’s case, we should not forget that the younger sister was also injured
by the acid attack. Although her degree of sufferance is not as that of
the elder one, but she also requires treatment and rehabilitation. It is
to be noted that this Court in Laxmi’s case (supra) doesn’t put a bar on
the Govt. to award compensation limited to Rs.3 Lakhs. The State has the
discretion to provide more compensation to the victim in the case of acid
attack as per Laxmi’s case guidelines. It is also to be noticed that this
Court has not put any condition in Laxmi’s case as to the degree of
injuries which a victim has suffered due to acid attack. In the instant
case, the victim’s father has already spent more than Rs. 5 lakhs for the
treatment of the victim. In consideration of the severity of the victim’s
injury, expenditure with regard to grafting and reconstruction surgery,
physical and mental pain, etc., we are of the opinion that the victim
(Chanchal) should be compensated to a tune of at least Rs. 10 Lakhs.
Suffice it to say that the compensation must not only be awarded in terms
of the physical injury, we have also to take note of victim’s inability to
lead a full life and to enjoy those amenities which is being robbed of her
as a result of the acid attack. Therefore, this Court deems it proper to
award a compensation of Rs. 10 lakhs and accordingly, we direct the
concerned Government to compensate the victim Chanchal to a tune of Rs. 10
Lakhs, and in light of the Judgment given in Laxmi’s case we direct the
concerned State Government of Bihar to compensate the main victim’s sister,
Sonam to a tune of Rs. 3 Lakhs. Of the Total amount of Rs. 13 Lakhs, a sum
of Rs. 5 lakhs shall be paid to the victim and her family within a period
of one month and the remaining sum of Rs. 8 lakhs shall be paid to the
victims within a period of three months from the date of this order.
Furthermore, the State shall upon itself take full responsibility for the
treatment and rehabilitation of the victims of acid attack as per the
Guidelines provided in Laxmi’s case, (2015) 5 SCALE 77, vide order dated
10.4.2015.
22. Disposing of the present writ petition, we additionally direct all
the States and Union Territories to consider the plight of such victims and
take appropriate steps with regard to inclusion of their names under the
disability list.
…………………………….J.
(M.Y. Eqbal)
…………………………….J.
(C. Nagappan)
New Delhi
December 07, 2015
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