W.P. (MD) Nos. 8355 and 12572 of 2011 and M.P. (MD) No. 1 of 2011. Case: M. Veersamy Vs State of Tamilnadu, represented by Home Secretary, Secretariat, Fort St. George, Chennai. & others. High Court of Madras (India)
| Case Number | W.P. (MD) Nos. 8355 and 12572 of 2011 and M.P. (MD) No. 1 of 2011 |
| Counsel | For Appellant: Ms. U. Nirmala Rani (in both writ petitions) and For Respondents: Mr. M. Govindan, Spl.G.P., Mr. S. Xavier Rajini, Mrs. J. Anandhavalli, Mr. K. Samidurai and Mr. Prabhu Rajadurai, Advs. |
| Judges | K. Chandru, J. |
| Issue | Code of Criminal Procedure, 1973 - Sections 161(3), 327; Commissions For Protection of Child Rights Act, 2005 - Sections 10, 13, 14, 15, 15(3), 15(iii), 21, 24, 26, 7, 8, 9; Indian Penal Code (45 of 1860) - Sections 34, 354, 377, 506, 506(i); Scheduled Casts And The Scheduled Tribes (prevention of Atrocities) Act, 1989 - Section 3(1)(xi) |
| Citation | 2012 (3) CTC 641, 2012 (1) LW 554 (Crl) |
| Judgement Date | March 07, 2012 |
| Court | High Court of Madras (India) |
Order:
K. Chandru, J., (Madurai Bench)
1. PROLOGUE:
Child Sexual Abuse happens because the system of silence around the act perpetuates it.
Child Sexual Abuse represses children; the repression of children is unlikely to create a flourishing society, economically, emotionally, equally or spiritually"
['Bitter Chocolate' - Child Sexual Abuse in India by Pinki Virani - Penguin Books - 2000]
Indian Scenario:
1.1. In order to examine the incidence of sexual abuse among child respondents, the questionnaire was administered to 12,447 children belonging to the five different categories including children in family environment, children in schools, children in institutions, children at work and street children. The study looked into four severe forms and five other forms of sexual abuse.
Out of the total child respondents, 53.22% reported having faced one or more forms of sexual abuse that included severe and other forms. Among them 52.94% were boys and 47.06% girls. The age wise distribution of children reporting sexual abuse in one or more forms showed that though the abuse started at the age of 5 years, it gained momentum 10 years onward, peaking at 12 to 15 years and then starting to decline. This means that children in the teenage years are most vulnerable. [Sexual Abuse of Children: (para 6.2)]
1.2. Out of the total child respondents, 20.90% were subjected to severe forms of sexual abuse that included sexual assault, making the child fondle private parts, making the child exhibit private body parts and being photographed in the nude. Out of these 57.30% were boys and 42.70% were girls. Over one fifth of these children faced more than three forms of sexual abuse. Amongst these sexually abused children, 39.58% were in the age group of 5-12 years, 35.59% in the age group of 15-18 years and 24.83% in the age group of 13-14 years. [Severe forms of sexual abuse:(para 6.2.1)]
1.3. From the data available, an analysis of severe forms of sexual abuse arranged age-wise revealed that sexual abuse crossed the 5% mark from the age of 10 years, peaked at 15 years and by the time the child reached 18 years, went below the 5% mark. 73% of the total incidence of child sexual abuse was reported among children between 11 and 18 years of age. Therefore the pre-adolescent to the adolescent child seems to be most at risk. It is also disturbing to note that children between 6 and 10 years also face severe forms of sexual abuse.
[Study on Child Abuse: India 2007: Ministry of Women and Child Development, Government of India: Pages 74, 75 and 76]
It is with this backdrop, we must proceed to hear the case.
2. Cries of Child Victims:
2.1. An unfortunate parent of a girl child studying 7th standard in the Government High School at Podumbu, a village near Madurai, is before this court in these two writ petitions. Both writ petitions raise a question of serious concern regarding a rampant child sex abuse allegedly done by a person who is no other than the Headmaster of the School necessitating corrective actions to be taken by this Court.
2.2. In the first writ petition, the petitioner sought for a direction to the Superintendent of Police, Madurai, the third respondent herein, to constitute a special investigation team led by a gender sensitive police officer preferably a female officer and to transfer the investigation in Crime No. 331/2011 from the Station House Officer, Koodalnagar Police Station, Madurai for effective investigation and to adhere to the guidelines prescribed by the Supreme Court in Delhi Domestic Working Women's Forum Vs. Union of India and Sakshi Vs. Union of India and also to direct the District Collector, Madurai to take necessary steps to restore confidence among girl students of the Government High School, Podhumbu by involving the Child Welfare Committee.
2.3. When the writ petition came up on 27.7.2011, this court on finding that the Headmaster of the school was placed under suspension, had directed the Chief Educational Officer, Madurai to be added as sixth respondent in the writ petition. Three other persons along with the Chief Educational Officer also got impleaded including the Director of Social Welfare, Chennai. Notice was directed to be taken by the learned Special Government Pleader for respondents 1 to 4 and the newly added sixth respondent. Private notice was permitted to the fifth respondent who is none other than the Headmaster of the School, who was placed under suspension. It was also observed that the question of transfer of investigation will take placed only after getting a report from the Child Welfare Committee, Madurai. Thereafter, it was directed that the learned Special Government Pleader should hand over the material papers to the Child Welfare Committee for further action. One Ms. Maria Glory, Inspector of Police, Thirumangalam police station, specially designated by the Superintendent of Police for assisting the investigation, was also directed to assist the Committee. The Committee will also be assisted by Ms. U. Nirmala Rani, who was also the counsel for the petitioner, to form part of the fact finding committee which went into the issue at the first instance. The committee was also directed to take the assistance of a Child Psychologist so as to ensure that the children are not exposed to any forms of trauma. The committee was also directed to file a report to this court on or before 5.8.2011. The Home Secretary, Government of Tamil Nadu was also directed to file a report as to whether a State Commission in terms of the Commission for Protection of Child Rights Act (Central Act 4/06) has been constituted. The first respondent was also directed to file a counter affidavit.
2.4. When the matter came up on 05.08.2011, the report of the Child Welfare Committee was received by the court in a sealed cover. Thereafter the matter was adjourned to 10.8.2011. On that day, the fifth respondent Headmaster through his counsel sought for time to file a counter affidavit. On 07.09.2011, it was informed to this court that one Suryakala, Inspector of Police, All Women Police Station, Samayanallur was in-charge of the investigation and the fifth respondent Headmaster had surrendered before the criminal court. The court had also permitted police custody of a person for a day. The officer in-charge was directed to independently investigate and to take all necessary assistance including a child Psychologist if necessary.
3. Call for Compensation to victims:
3.1. Even during the pendency of these proceedings, the very same parent filed the second writ petition seeking for a direction to grant compensation of Rs. 2 lakhs to the writ petitioner's daughter who was the victim of child sex abuse perpetrated by the Headmaster of the School and for implementing the constitutional safeguards and guidelines by the Apex Court for speedy trial, victim protection, legal assistance and also the guidelines for conducting trial in Crime No. 331/2011 without causing any embarrassing to the victim children.
3.2. That writ petition was admitted on 04.11.2011. Subsequently, it was adjourned for filing counter. On 07.12.2011, Mr. M. Govindan, learned Special Government Pleader took notice for respondents 1 to 5 and Mr. Xavier Rajini took notice for the Headmaster, who was arraigned as 7th respondent in the writ petition. The matter was directed to be posted along with the previous writ petition, i.e., W.P.(MD) No. 8355 of 2011. In view of the same, both writ petitions were directed to be heard together.
3.3. On 02.12.2011, this court found that the affidavit filed by the Investigating Officer was not satisfactory and enough concern was not shown for the orders passed by this court. On finding no final report has been filed by the Station Investigating Officer, this court had granted an interim stay for further investigation. The official respondents were also directed to file a counter affidavit. The Chief Educational Officer, Madurai was also directed to file a counter affidavit. Subsequently, the matter was called on 10.12.2011 and thereafter adjourned to 12.12.2011. On that day, the Investigating Officer appointed by the Superintendent of Police was present. She also produced the case files, which were directed to be kept under a sealed cover by the Deputy Registrar (Judicial) under his custody and the matter was directed to be called on 16.12.2011 for orders. On 16.12.2011, the matter was heard at length. One U. Vasuki, the General Secretary of All India Democratic Women Association filed an impleading petition in M.P.(MD) No. 4 of 2011 seeking permission of the court to implead herself in the writ petition. That was also ordered by this court on 16.12.2011.
4. Abuses in abundance:
4.1. The petitioner's wife V. Deepa filed a complaint with the Inspector of Police, Koodalnagar Police Station on 13.7.2011 alleging that her daughter studying in 7th standard (name is not furnished here in view of sensitive nature of the case) and other girl children were sexually abused by the Headmaster of the school. He used to touch their breast and asking the girl children to hold his penis. He used to take pictures in his camera and undressed the children privately. The children who protested were threatened by him by stating that he will fail them in the examinations. Many a times, he had inflicted corporal punishment leading to blood injuries. Because of this, her daughter was afraid to go to school. During the night time, she was blabbering in her sleep and also had not taken her food properly. One relative of the Headmaster by name Amali Rosi and a teacher by name Shanmuga Kumarasamy were also helping him (arraigned as R7 and R8 in the writ petition). Therefore, appropriate action was sought for.
4.2. Similar complaints were sent by other parents including Panchu, W/o N. Chinnaveeran, North Street, Podumbu, Hemalatha, W/o. Mahendran, Podumbu village, M. Kalavathy, Chellamanai Street, Podumbu and Makkachi, North...
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