LILADE SITADE PAVAIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition under Arts 226 and 227 of the Constitution for enforcement of fundamental rights under Art. 21 of the Constitution the present three petitioners who are original accused Nos. 3 to 5 respectively in criminal case No. 246 of 1982 pending investigation at Karelibag police station Baroda city pursuant to the criminal complaint filed against the present petitioners as well as other two accused on 21-7-1982 by the complainant one Mohammed Hanif Musabhai Vora alleged to be aged 15 years invoke interference of this court on the 3 ground that the said investigation by the Karelibag police station is illegal and unauthorized.

(2.) The petition was admitted to final hearing by Bedarkar J. on 19 and it has reached final hearing before me today. The State of Gujarat as well as officer-in-charge of Karelibag police station and the learned Judicial Magistrate First class Baroda have been joined as parties to the present proceedings.

(3.) In order to appreciate the grievance of the petitioners a few relevant facts leading to the present proceedings require to be stated at the outset. The complainant Mohammed Hanif Musabhai Vora who alleges to be 15 years. old has filed a criminal complaint at Karelibag police station against five accused out of whom present three petitioners as state: above are-accused Nos. 3 4 and 5 respectively. Accused No. 1 is one Anopkunvar Kantakunvar and accused No. 2 is one Kantakunvar Sundarkunvar. The said complaint is filed alleging7that the concerned five accused have committed offences under secs. 364 326 506 114 of the I.P. Code. The averment in the complaint against the relevant accused have vital bearing on the result of the present petition and hence it is necessary to note them in details of The complainant had given the aforesaid complaint originally before the Chhota Udepur police station and thereafter it was transferred to Karelibag police station at Baroda where it was registered on 27-7-1982 at 19.30 hours. The complainant has stated in the complaint that he is aged 15 years and he is carrying on occupation of begging. That he is originally resident of Chhota Udepur but at the time of complaint he is said to be residing at Baroda in Baranpura and the exact place of residence is shown to be Hijda-Na-Akhada which is residential Were of eunuchs. The complainant States in his complaint that he is residing in station area with his father Musabhai Adambhai Patel since about one year. That he has four brothers and three sisters. He had gone to Baroda in search of service. He was doing manual labour in a canteen attached to Aradhna talkies at Baroda. He was doing the said manual work since about it years prior to the date of the complaint. During the time he Was doing his manual work in the said canteen one eunuch approached him. His name was Anopkunvar who is-accused No. 1 Accused No. 1 is alleged to have told the complainant that he will provide him with good service. Having given this pretext he took the complaint with him and kept him at his residence at Akota. During that time the complainant was putting on pens and bush-shirt. During the complainants stay with accused No. 1 at Akota on the must day another eunuch named Kantakunvar original accused No. 2 came to the complainant at Akota. Both accused Nos. 1 and 2 told the complainant that they will provide the complainant with service in a hotel Telling him accordingly they brought the complainant to Baranpura wearing residential locality called Akhada of Eunuchs is situated. At that place the complainant was made to put on saree blouse and skirt. The complainant allegedly resisted but as he was surrounded by large number of eunuchs his resistance was of no avail. The complainant was forcibly made to put on ladies dress and on the next day he was made to go to the surrounding villages and he was made to move therein for about a month and was made to beg. Thereafter he was brought back to Baranpura locality of Baroda city. The complainant further alleges shot he tried to run away from the said place but he could not do so. He was made to stay at Baranpura for one day more and thereafter he was taken by the aforesaid persons to Kalol (in Mehsana district). The complainant further alleges that accused No. 2 took the complainant to Kalol. That he was threatened by the eunuchs that if he informed anybody of this incident he would be killed. Under these circumstances due to the threat of beating the complainant remained in the control of these eunuchs. They took him near the water tank situated by the side of Kalol depot in Kalol town. The complainant was taken to the house of one Lulled Sited eunuch who is accused No. 3 present petitioner No. 1. The complainant further states that he stayed there for three days in ladys dress at the place of accused No. 3. On the night of 4th day accused Na. 3 brought one lady from village named Mansa. Her name was Hira who is original accused No. 4 present petitioner No. 2. The complainant was introduced to him. On that night at about 3 oclock accused No. 3 awakened the complainant and took him to the third room of her residential house. The surrounding doors were closed and the radio was put on at full tone. At that time one Shankar who is accused No. 5 and present petitioner No. 3 came there and as the complainant was shouting his mouth was gagged and was made to lie down. Accused No. 4 Hira thereafter took out the clothes of the complaint and cut off the private part of the complainant with a weapon which appeared to be a small sword. The complainant thereafter became unconscious and regained consciousness after six days. He was made to stay at Kalol for about a month and thereafter he was brought back to Baroda in Baranpura locality. The complainant further states that for the aforesaid work accused Nos. 4 and 5 had charged Rs. 2 500 accused No.2. The complainant was thereafter staying at Baroda and by then had paid about Rs. 5 0 to accused No. 2 by collection alms. The complainant further states that the entire incident had happened because of ignorance and minor age of the complainant and now he is made to live in this world in the form of a eunuch. That the entire incident occurred against the wish of the complainant and the accused have renamed him as Jyotikunvar Anopkunvar.