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Amitabh and Nutan's World
Monday, November 25, 2013
Aarushi case - Petition for compensation to Nepalese servants
To,
The Hon'ble Chairman,
National Human Rights Commission.
New Delhi
Subject- Arushi murder case- suitable compensation for the three
innocent accused and appropriate action against officers found
responsible for this
Sir,
The petitioners Amitabh Thakur, an IPS officer from UP
and Dr Nutan Thakur, a social activist, both resident of 5/426, Viram
Khand, Gomti Nagar, Lucknow-226010, phone number- 94155-34526 and
working in the field of Human Rights as well, humbly pray as follows-
.
1. That this petition is as regards Aarushi murder case
registered as crime No 695/08 u/s 302 IPC, ps Sector 20, district
Noida whose complainant was Dr Rajesh Talwar and which was later
handed over to the CBI on 31/05/2008.
2. That the petition is being presented by the two petitioners
in their private and individual capacity
3. That the petitioner No 2, Nutan Thakur had presented a
petition through letter No- Aarushi/CBI/01 Dated- 22/10/2012 whereby
she had stated the entire sequence of events in this murder case as
happened till that date, including fact that the UP Police while
investigating the case had arrested the complainant Dr Rajesh Talwar
on 23/05/2008, the CBI took Dr Talwar is police custody from
01/06/2008 to 04/06/2008, on 1306/2008, the Nepalese compounder of Dr.
Rajesh Talwar, Sri Krishna Thadarai (alias Kishan) s/o Sri
Chitrabahadur arrested by CBI, on 27/06/2008, one Sri Duranis'
Nepalese domestic help Sri Rajkumar s/o Sri Shiv Kumar arrested on the
suspicion of involvement in the murder, on 11/07/2008 Sri Vijay Mandal
(alias Sambhu) arrested by the CBI, in a press conference, Sri Arun
Kumar, then Joint Director CBI, stating that the CBI is awaiting DNA
matching of washed blood stains on Sri Rajkumar's T-shirts and that
the CBI still considered this a blind case and expresses the hope that
the case will be solved soon, on 12/07/2008 Dr. Rajesh Talwar freed
on bail, on 09/08/2008, the then CBI director Sri Ashwani Kumar saying
the case is still unsolved, as many important corroborative pieces of
evidence are yet to be found, on 04/09/2008- Sri Vijay Mandal granted
bail, on 12/09/2008 Sri Krishna and Sri Raj Kumar granted bail though
CBI counsel Sri Suresh Batra opposed bail, on 29/12/2010 CBI filing
closure report, on 09/02/2011 the special CBI court made Dr Rajesh
Talwar and Ms Nupur Talwar and on 25/05/2012 both Sri Rajesh Talwar
and Ms Nupur Talwar were charged by the Ghaziabad court with murder,
destruction of evidence and conspiracy.
4. That based on above facts, Petitioner No 2 had said two
important points-
(A) It is rather strange that the UP Police had arrested the
complainant Dr Rajesh Talwar as early as on 23/05/2008 but within days
of taking over the investigation, the CBI found him innocent,
facilitating his release from prison though coming back to him again-
firstly through their closure report dated 29/12/2010 and later when
the Hon'ble Supreme Court sought CBI's opinion on 15/04/2011
(B) More importantly, the CBI seemed to be unusual hurry while
arresting Sri Krishna, Sri Raj Kumar and Sri Vijay Mandal whose arrest
facilitated the release of Dr Talwar, against whom the same CBI is now
furnishing a lot of evidences- witnesses and documents.
5. That she said that the set of events that took place between
CBI took over this investigation on 31/05/2008 to the date Dr Talwar
got out of police custody due to non-opposition by CBI are wrapped in
mystery and seem to have much more hidden than can be seen as an
outsider and that the rapid set of events during these 45 days showed
CBI in extreme hurry where on one hand Dr Talwar is exonerated from
the crime, only to be haunted much later by the same CBI and the
Hon'ble CBI court and more critically and shamefully, CBI arrests
three completely innocent, helpless and poor Nepalese people who were
working as servants in different households
6. That she alleged that the way these arrests were made in
rapid succession and then after the release of Dr Talwar everything
slowed down and no Charge sheet was filed against these three poor
people framed in this murder case, made it pretty clear that some of
the officers involved in this investigation were working for some
particular agenda, unrelated with fact and justice. This gets
corroborated by the above-mentioned statement made by Sri Ashwini
Kumar, then Director, CBI dated 09/08/2008 and Sri Arun Kumar dated
11/07/2008
7. That petitioner No 2 quoted from Chapter 12 (Arrests,
Custody, Bail and Remand) from Crime Manual 2005 which says- "12.3
However, as arrest takes away liberty of an individual, the power to
arrest vested under Section 41 Cr.P.C. must be exercised with due care
and caution. The power being discretionary must be used with due care
to ensure that the human rights of any individual are not violated
under any circumstances. The arrest may be made only when it is
reasonably felt that the individual so arrested is involved in the
commission of a heinous crime and will be prosecuted in the Court of
Law for the offences committed by him and if it is feared that he is
likely to tamper with or destroy evidence or is likely to evade the
process of law. Undue publicity for arrests made must be avoided"
8. That she alleged that none of these guidelines was followed
while making arrest of these three servants who were later found
innocent while at the same time releasing Dr Talwar from the net
though very soon after these arrests the CBI lost interest in these
three accused, failed to file Charge sheet within the stipulated time,
never really bothered again for them and also exonerated them
completely through their closure report dated 29/12/2010
9. That she concluded that the above set of events make it amply
clear that- (a) these three arrests were made without any proper
application of mind without due dare and caution and was hurried in
nature, these arrests were made even when the CBI was still groping in
the dark and was not clear about how these murders took place and to
make three important arrests at rapid succession without any
sufficient material on record is certainly improper and is also the
curtailment of these person's human rights and human dignity, with the
sole purpose of saving Dr Rajesh Talwar and his wife.
10. That hence petitioner No 2 prayed- "(a) Kindly get the entire
set of events enquired regarding why suddenly CBI thought Dr Rajesh
Talwar and his wife to be innocent, despite the investigation still
being quite premature (b) Kindly get it enquired why the then CBI
officials arrested Sri Krishna, Sri Raj Kumar and Sri Vijay Mandal in
so rapid succession despite having not come to any definite
conclusion, as acknowledged by the Joint Director and the Director
during various Press interaction (c) Kindly grant a suitable
compensation to Sri Krishna, Sri Raj Kumar and Sri Vijay Mandal for
having got them arrested so fast without even having sufficient
evidence against them and having later found conclusively that the
three could not have been the accused "
11. That she also sent a petition to Director, CBI where she
additionally prayed- "Kindly make a formal apology to these three
poor, innocent, foreign nationals who had to undergo a lot of trauma,
torture and intense loss of face because of these hurried and improper
CBI arrest"
12. That when nothing happened either at the end of the NHRC or the
Director, CBI, the petitioner No 2 filed a Writ Petition No 5927 of
2013 (M/B) before the Hon'ble Allahabad High Court, Lucknow Bench
whereby she made the same prayers
13. That the Hon'ble High Court after hearing the matter, made the
following order dated 11/07/2013-"The subject matter of this writ
petition relates to Aarushi murder case, at Gaziabad which comes
within the territorial jurisdiction of Allahabad Bench where all cases
connected therewith are being heard. The writ petition is dismissed
with liberty to pursue the matter, if so advised, at Allahabad."
14. That the petitioner No 2 has not filed any Writ Petition in the
Hon'ble Allahabad Bench or at any other legal forum so far.
15. That meanwhile yesterday (25/11/2013) the Hon'ble special CBI
court, Ghaziabad held the dentist couple Sri Rajesh Talwar and Ms
Nupur Talwar guilty in connection with the murder of their daughter
Aarushi and domestic help Hemraj at their Noida residence. The Hon'ble
court also convicted them on charges of destroying evidence and
misleading investigators.
16. That the Hon'ble Special Judge Sri Shyam Lal pronounced the
couple guilty in the Ghaziabad district court. The court held that the
prosecution had been able to establish an unbreakable chain of
circumstantial evidence pointing to their guilt. The couple was
immediately taken into custody and the quantum of their sentence will
be pronounced by the Hon'ble court today.
17. That the convicts say that they shall be challenging this order
before the Hon'ble Allahabad High Court, which they have every right
to do.
18. That but the fundamental question that now gets judicially
established is that the three Nepalese Sri Krishna, Sri Raj Kumar and
Sri Vijay Mandal seem to have been falsely arrested, having nothing to
do with this case.
19. That in Joginder Kumar vs State Of U.P (1994 AIR 1349, 1994 SCC
(4) 260), the Hon'ble Supreme Court had said-"8. The horizon of human
rights is expanding. At the same time, the crime rate is also
increasing. Of late, this Court has been receiving petitions about
violation of human rights because of indiscriminate arrests. How are
we to strike a balance between the two?"
20. That it also said- "11. This Court in Nandini Satpathy v. P.L.
Dani4 (AIR at p. 1032) quoting Lewis Mayers stated: (SCC p. 433, para
15) "The paradox has been put sharply by Lewis Mayers: 'To strike the
balance between the needs of law enforcement on the one hand and the
protection of the citizen from oppression and injustice at the hands
of the law-enforcement machinery on the other is a perennial problem
of statecraft. The pendulum over the years has swung to the right.' "
21. That the Hon'ble Supreme Court said-"12. The National Police
Commission in its Third Report referring to the quality of arrests by
the police in India mentioned power of arrest as one of the chief
sources of corruption in the police. The report suggested that, by and
large, nearly 60% of the arrests were either unnecessary or
unjustified and that such unjustified police action accounted for
43.2% of the expenditure of the jails."
22. That the Hon'ble Supreme Court said-"It would be desirable to
insist through departmental instructions that a police officer making
an arrest should also record in the case diary the reasons for making
the arrest, thereby clarifying his conformity to the specified
guidelines......"
23. That it said-"The above guidelines are merely the incidents of
personal liberty guaranteed under the Constitution of India. No arrest
can be made because it is lawful for the police officer to do so. The
existence of the power to arrest is one thing. The justification for
the exercise of it is quite another. The police officer must be able
to justify the arrest apart from his power to do so. Arrest and
detention in police lock-up of a person can cause incalculable harm to
the reputation and self-esteem of a person. No arrest can be made in a
routine manner on a mere allegation of commission of an offence made
against a person. It would be prudent for a police officer in the
interest of protection of the constitutional rights of a citizen and
perhaps in his own interest that no arrest should be made without a
reasonable satisfaction reached after some investigation as to the
genuineness and bona fides of a petition and a reasonable belief both
as to the person's complicity and even so as to the need to effect
arrest. Denying a person of his liberty is a serious matter. The
recommendations of the Police Commission merely reflect the
constitutional concomitants of the fundamental right to personal
liberty and freedom. A person is not liable to arrest merely on the
suspicion of complicity in an offence. There must be some reasonable
justification in the opinion of the officer effecting the arrest that
such arrest is necessary and justified. Except in heinous offences, an
arrest must be avoided if a police officer issues notice to person to
attend the Station House and not to leave the Station without
permission would do."
24. That in Smt. Nilabati Behera Aliaslalit vs State Of Orissa And
Ors (1993 AIR 1960, 1993 SCR (2) 581), the Hon'ble Supreme Court
further said-"In view of the decisions of this Court in Rudul Sah v.
State of Bihar and Another, [1983] 3 S.C.R. 508, Sebastian M. Hongray
v. Union of India and Others, [1984] 1 S.C.R. 904 and [1984] 3 S.C.R.
544, Bhim Singh v. State of J&K [1984] Supp. S.C.C. 504 and [1985] 4
S.C.C. 677, Saheli, A Women's Resources Centre and Others v.
Commissioner of Police, Delhi Police Headquarters and Others, [1990] 1
S.C.C. 422 and State of Maharashtra and Others v. Ravikant S.Patil,
[1991] 2 S.C.C. 373, the liability of the State of Orissa in the
present case to pay the compensation cannot be doubted and was rightly
not disputed by the learned Additional Solicitor General"
25. That the Hon'ble Supreme Court said-"In Rudul Sah (supra), it
was held that in a petition under Article 32 of the Constitution, this
Court can grant compensation for deprivation of a fundamental right"
and that-"In these circumstances, the refusal of this Court to pass an
order of compensation in favour of the petitioner will be doing mere
lip-service to his fundamental right to liberty which the State
Government has so grossly violated. Article 21'which guarantees the
right to life and liberty will be denuded of its significant content
if the power of this Court were limited to passing orders to release
from illegal detention. One of the telling ways in which the violation
of that right can reasonably be prevented and due compliance with the
mandate of Article 21 secured, is to mulct its violaters in the
payment of monetary compensation. Administrative sclerosis leading to
flagrant infringements of fundamental rights cannot be corrected by
any other method open to the judiciary to adopt. The right to
compensation is some palliative for the unlawful acts of
instrumentalities which act in the name of public interest and which
present for their protection the powers of the state as shield. If
Civilisation is not to perish in this country as it has perished in
some others too well-known to suffer mention, it is necessary to
educate ourselves into accepting that, respect for the rights of in-
dividuals is the true bastion of democracy. Therefore, the State must
repair the damage done by its officers to the petitioner's rights. It
may have recourse against those officers" (pp.513-14)
26. That In Bhim Singh v. State of J &K and Others, [1985] 4 S.C.C.
677, illegal detention in police custody of the petitioner Bhim Singh
was held to constitute violation of his rights under Articles 21 and
22(2) and the Hon'ble Supreme Court exercising its power to award
compensation under Article 32 directed the State to pay monetary
compensation to the petitioner for violation of his constitutional
right by way of exemplary costs or otherwise, taking this power to be
settled by the decisions in Rudul Sah and Sebastian M. Hongray. In
Saheli, [1990] 1 S.C.C. 422, the State was held liable to pay
compensation payable to the mother of the deceased who died as a
result of beating and assault by the police.
27. That the Hon'ble Supreme Court said-"It follows that 'a claim in
public law for compensation' for contravention of human rights and
fundamental freedoms, the protection of which is guaranteed in the
Constitution, is an acknowledged remedy for enforcement and protection
of such rights, and such a claim based on strict liability made by
resorting to a constitutional remedy provided for the enforcement of a
fundamental right is 'distinct from, and in addition to, the remedy in
private law for damages for the tort' resulting from the contravention
of the fundamental right. The defence of sovereign immunity being
inapplicable, and alien to the concept of guarantee of fundamental
rights, there can be no question of such a defence being available in
the constitutional remedy. It is this principle which justifies award
of monetary compensation for contravention of fundamental rights
guaranteed by the Constitution, when that is the only practicable mode
of redress available for the contravention made by the State or its
servants in the purported exercise of their powers, and enforcement of
the fundamental right is claimed by resort to the remedy in public law
under the Constitution by recourse to Articles 32 and 226 of the
Constitution. This is what was indicated in Rudul Sah and is the basis
of the subsequent decisions in which compensation was awarded under
Articles 32 and 226 of the Constitution, for contravention of
fundamental rights."
28. That the Hon'ble Supreme Court said-"We may also refer to
Article 9(5) of the International Covenant on Civil and Political
Rights, 1966 which indicates that an enforceable right to compensation
is not alien to the concept of enforcement of a guaranteed right.
Article 9(5) reads as under:- "Anyone who has been the victim of
unlawful arrest or detention shall have an enforceable right to
compensation."
29. That whatever have been stated by the Hon'ble Supreme Court in
the above cases seem to apply completely in the case of the above
three helpless, poor and hapless Nepalese domestic servants, who from
all the facts coming so far, seem to have been arrested to save the
Talwars who could not finally be saved.
30. That hence it seems imperative that the three Nepalese servants
mentioned above being seemingly arrested as artificially and
arbitrarily involved in this case shall be directed by this Hon'ble
Commission to be adequately compensated by the concerned/appropriate
authorities and the two petitioners pray accordingly that adequate and
appropriate compensation be granted to them in lieu of the curtailment
of their Human Rights and taking away of Human dignity, apparently for
improper and insufficient reasons.
31. That in addition, the petitioner No 2, also seeks action against
all the members of CBI who are found guilty of arresting these three
Nepalese without substantive and sufficient reasons, because as the
chain of events clearly demonstrate, there was not any other reason to
arrest these three Nepalese servants than to save the real culprits.
Lt No- Aarushi/CBI/01
(Amitabh Thakur) (Dr Nutan Thakur)
Dated- 26/11/2013
5/426, Viram Khand,
Gomti Nagar,
Lucknow-
226010
# 94155-34525
Posted by Amitabh and Nutan at 10:17 PM
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