The Supreme Court on Monday directed the parents of a five-year-old, who was allegedly kidnapped, raped and killed in Nayagarh region of Orissa in July last year, to approach the Orissa High Court.
The bench of Justices A. M. Khanwilkar and Sanjiv Khanna opined that the sweep of the petition before the High Court can be increased, for which it directed the restoration of the writ petition, which was disposed of by the Orissa High Court. Further, it directed that the petition be suitably amended to make a comprehensive petition in all aspects, including any further relief that the petitioners (parents) of the victim want to claim. It also directed the High Court to dispose of the hearing expeditiously.
Senior Advocate Mahesh Jethmalani, appearing for the petitioners, submitted that the High Court had relegated them back to the Magistrate and that the SP and DM had misled the National Commission for Protection for Child Rights.
The Court opined that the problem in these present facts and circumstances is that the writ petition was filed by the father before the High Court, whereas the writ petition before the Supreme Court was filed by the mother. The relief claimed before the High Court was limited to a judicial inquiry or investigation by a Special Investigation Team, and that the same had been done. The Court noted that there were subsequent facts that could be placed before the High Court, for which the petition before the High Court should be amended.
The Court impressed upon Mr Jethmalani that he could persuade the High Court and if the High Court refuses, then petitioner could come before the Supreme Court. It was the opinion of the Court that parallel proceedings should not be there.
Senior Advocate Kapil Sibal told the court that the accused in this case had already been charge-sheeted and that the trial was scheduled to commence from September 20. The petitioners could have lodged a protest petition, which they have not done. Further, the allegation of organ trade was raised only before the Supreme Court and not the High Court, he contended.
The Court, while disposing of the writ petition and the special leave petition, held that instead of persuading the High Court, the petitioner’s wife had filed a substantive writ petition while the husband had filed the special leave petition.
It noted that the writ petition raised factual aspects, which were not before the High Court, including the report by NCPCR dated December 19, 2020. It was also observed that a writ petition in the nature of a PIL in this matter was disposed off by the High Court on March 25, 2021, in view of proceedings pending before the Supreme Court.
Background:
Before the Orissa High Court, the allegation was that the investigation undertaken pursuant to FIR was faulty. The High Court was of the opinion that the grievance of the petitioner can be raised before the Magistrate undertaking the process. Therefore, it declined to entertain the writ petition involving the investigation, with the liberty to the petitioner to approach the concerned magistrate.
Mr Jethmalani, appearing for the petitioner before the Supreme Court on August 17, 2021, had submitted that the parents, who resorted to attempting self-immolation to get the Odisha government to take action, must be heard. He submitted that the Supreme Court had directed filing of an SLP against the Orissa High Court’s order so that the matter can be heard together.
On July 23, the Supreme Court had asked to challenge the order of the High Court via SLP primarily because the petition before it was filed by the mother and before the Orissa High Court it was by the father. The petition by the father came before the Supreme Court via Special Leave. The Court had opined that there may be an issue of res judicata. Subsequently, the SLP was filed, and it was directed to be tagged with the present petition.
The incident took place in Odisha’s Nayagarh in July 2020, where a five-year-old girl was allegedly kidnapped, raped and killed. The mother had petitioned the Apex Court demanding that SIT investigation should investigate the aspect of organ trade. On being asked why the body was not traced using sniffer dogs, the SIT chief Arun Bothra stated that “The SIT hasn’t used dog squad. So I cannot comment on dog squad.” He added that “The towel, which Saroj used to clean blood stains after killing the 5-year-old girl, has been sent to a laboratory for testing. The accused had washed the towel several times but bloodstains were found. The towel and leggings are major evidence in the case.” Bothra had clarified that the bones of the deceased girl are not missing, but the mother of the victim alleged that the SIT head is making up stories to shield the real culprit.
The mother had sought a CBI inquiry in the matter. The issue is of a fair investigation by the independent authority, namely CBI. “The policemen have found 12 pieces of bones along with the skull. Our body has 206 bones; so, where are the other bones? The SIT is making stories just to save the actual criminal. Babul Nayak and his gang are involved in the crime,” she had alleged and claimed that the deceased daughter’s remains had 75 percent of the bones missing.
The order passed by the Supreme Court today relegating the parties to the High Court is in line with judicial propriety where the writ jurisdiction of the High Court under Article 226 being wider coupled with the fact that the Court being closer in proximity to the authorities concerned under its jurisdiction can effectively monitor the trial and other facts regarding the incident.