Hanskhali Gangrape & Murder: Calcutta High Court Reserves Order In Plea Seeking Implementation Of Witness Protection Scheme 2018

The Calcutta High Court on Wednesday reserved its order in a petition seeking the implementation of the Witness Protection Scheme, 2018 in the Hanskhali gangrape and murder case wherein a probe by the Central Bureau of Investigation (CBI) had been ordered into a week back. 

According to reports, a 14-year-old girl belonging to the scheduled caste community died on April 5 after she was allegedly gangraped by the son of a panchayat member owing allegiance to the Trinamool Congress (TMC) and others in West Bengal's Nadia district. She was bleeding profusely when she returned home and died later that night, according to her parents who lodged a police complaint on April 10.

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj had earlier ordered a CBI probe into the case after opining that a fair investigation is required to instil confidence in the family members of the victim and also the residents of the locality. 

Pursuant to the rival submissions, the Chief Justice remarked, "We will consider all this and pass appropriate order".

On Wednesday, the counsel appearing for the petitioner apprised the Court that the family members of the victim and other witnesses were being constantly threatened as a result of adequate protection must be extended to them. Reliance was also placed on the Supreme Court judgment in Mahendra Chawla v. Union of India to seek implementation of the Witness Protection Scheme, 2018 (2018 scheme) in the instant case.

The counsel further argued that as per the provisions of the 2018 scheme, the victim must be conferred with a new identity which includes new name, profession, parentage by providing supporting documents acceptable by the Government Agencies in order to protect her family members.  He further contended that that the scheme provides for the establishment of a State Witness Protection Fund for meeting the expenses of the scheme.

The counsel further submitted that the family members of the victim must be shifted to a safe house in order to adequately protect them. It was also prayed before the Court that a psychological analysis of the family members of the victim must be done by AIIMS, Delhi since they have all been left extremely traumatised by the incident. 

On the other hand, Advocate General S.N Mookherjee submitted that the 2018 scheme has not been implemented in the State of West Bengal as well as various other States. However, he contended that as per the Supreme Court decision in Mahendra Chawla v. Union of India, the holistic regime of witness protection should be considered as law under Article 141 of the Constitution till a suitable law is framed.

He further submitted that such an application for witness protection should have been filed by the witnesses themselves on the basis of a threat perception instead of the petitioner as mandated under the 2018 scheme. Reference was also made to the 2018 scheme which stipulates that the Competent Authority under the scheme will be defined as a Standing Committee in each district chaired by District and Sessions Judge with Head of the Police in the District as Member and Head of the prosecution in the District as its Member Secretary.

The Advocate General averred that although such a Standing Committee has not been constituted by the State, an application for witness protection can be made by the witnesses before the individual authorities stipulated under the scheme. He further informed the Court that he would take instructions as to how funding of the witness protection scheme will tale place as both the Centre as well as the State are entitled to contribute towards the State Witness Protection Fund as per the 2018 scheme. 

The 2018 scheme stipulates that the sources of the State Witness Protection Fund are - Budgetary allocation made in the Annual Budget by the State Government; Receipt of amount of fines ordered to be deposited by the courts/tribunals in the Witness Protection Fund; Donations/contributions from International/National/Philanthropist/Charitable Institutions/Organizations and individuals permitted by Government and Funds contributed under Corporate Social Responsibility.

The counsel appearing for the CBI further apprised the Court that investigation into the case is progressing and he further underscored that protection of witnesses in the case is of paramount consideration in order to ensure that the witnesses are not threatened. 

Background 

A Public Interest Litigation (PIL) had been filed wherein it had been alleged that on April 4, the deceased minor girl had been invited in the birthday party by one Brijgopal Goalain, Shyamnagar area in Hanshkhali in Nadia district of West Bengal, who is stated to be the son of an influential political leader of the ruling Trinamool Congress Party (TMC) and a member of Gazna Gram Panchayat. It was further alleged that the deceased was gang raped by Brijgopal Goalain with 4-5 other friends. 

Opining that a fair investigation is required to instil confidence in the family members of the victim and also the residents of the locality and the State, the Court had underscored,

"..we are of the opinion that in order to have fair investigation in the matter and to instill confidence in the family members of the victim and also the residents of the locality and the State, the investigation should be carried out by the CBI instead of the local police. Hence, we direct the State Investigating Agency to hand over the investigation to the CBI with immediate effect. The State Investigating Agency will hand over all the papers relating to the investigation along with the custody of the accused persons to the CBI forthwith."

On the last date of hearing, the concerned authorities were ordered to extend full protection to the family members of the victim and witnesses of the case. The CBI had also been ordered to furnish a report about the progress of investigation on the next date of hearing which is slated to take place on May 2.

Case Title: Shaista Afreen and Others v. The State of West Bengal and Others