6th June 2013
The Chief Justice,
Reference: Concerns of women’s groups regarding the manner in which the complaint against Dr. Rustom Sonawala is dealt with. (Anticipatory Bail Application No. 578 of 2013)
We, the members of women’s groups, organisations and individuals are concerned about developments in the complaint of rape filed against Dr. Rustom Sonawala at Khar Police Station on 17.05.2013.
We have been fighting for the rights of victims in cases of sexual assault in Mumbai and various parts of the country for many decades. In view of the increasing number of cases of sexual assault and brutal rapes, laws regarding rape and sexual assault have been recently amended to bring in stringent punishments. After the Justice Verma Committee report and the recent happenings in the country, we felt that the Courts too were taking the issue of violence against women more seriously and sensitively.
Background: A 26 year old woman, who was taking treatment from Dr. Rustom Sonawala since August 2012, filed a complaint of rape against him on the evening of 17th May, 2013. The filing of the first information report as well as the medical examination of the complainant was concluded by 7 am of the 18th of May.
After the complainant and her husband returned home on the same day, 18th May, the police called them to Dadar to identify the doctor, as they had located his whereabouts in Parsi colony. On locating and identifying the accused doctor, the two police personnel accompanied him in his car, asking the complainant to take a taxi. While the complainant as well as the police personnel reached the Khar police station, the accused Doctor managed to abscond while he was being accompanied by the police.
During protests that were being held against the doctor opposite his clinic, one of the neighbours informed some of the protestors, that the same doctor had also molested their daughter in the past.
This has raises several questions:
1. Why did the police go to arrest the doctor in a taxi for which the complainant was made to pay and not in a police van?
2. Why has no action been taken against the concerned police personnel and why have they not been suspended?
3. Given the complicity of the entire machinery with the accused, how do we ensure a fair trial?
4. How do we ensure that even the forensic and medical reports are not tampered with?
Further, the accused who had not been arrested and was absconding even after 10 days of the crime, on 29th May, 2013, moved the High Court seeking anticipatory bail, even as his application for anticipatory bail was pending before the Sessions Court at Greater Bombay, Mumbai. In the anticipatory bail application, the accused said through his lawyer that his blood and semen sample may be collected and he be given protection from arrest till the anticipatory bail application is finally decided in the Sessions Court. The victim’s advocate argued that the accused was absconding and in his absence no reliefs should be granted to him.
On 29th May, 2013 the Hon’ble Court passed an order directing the accused to deposit his passport and appear before the Khar Police Station. The Assistant Public Prosecutor was asked whether the court should pass an order of not arresting the accused or she would give an undertaking. The Assistant Public Prosecutor said that she would give an undertaking of not arresting the accused till his anticipatory bail was decided by the Hon’ble Sessions Court. The court asked by when they would do the medical examination and the Assistant Public Prosecutor said that there is no provision in law by which this medical examination can be done prior to arrest. After her refusal to agree to do the medical test the court said it will hear the matter after vacation, that is, on 11th June, 2013 and till then the accused is protected, as the Assistant Public Prosecutor has given an undertaking regarding the same.
Sec. 54 of the Code of Criminal Procedure allows medical examination of the accused at the instance of the accused, if the examination of his body will afford evidence which will disprove commission by him of any offence or which will establish the commission by any other person of any offence against his body.
But the section is very clear that it is after arrest and that the accused will have to make an application to the Magistrate.
We fear that the Order of the Hon’ble High Court sets a wrong and dangerous precedent in terms of rape matters for many reasons.
The Accused was not present before the court and yet he was granted relief, which is never done, especially in rape matters. The medical evidence of semen, blood, injuries cannot be the sole basis of deciding whether rape was committed. At present the law defines rape by penetration, [that is, penetration is enough to prove rape,]; nowhere does it say that it has to be coupled with the presence of DNA.
The FIR states that there was penetration; the presence of DNA and other factors is corroborative evidence.
If this order becomes final it not only means that the rape accused can approach the courts to seek this kind of protection, but it will also mean that cases will be closed on the basis of DNA reports. And given the circumstances related above, one cannot be sure that these reports cannot not doctored or tampered with. DNA test can be evaluated during trial.
This also takes us to the conclusion that if traces of semen are not found, there is no rape. This goes counter to the recent Criminal Amendment Act, 2013.
The current situation also gives the accused the freedom to tamper with the evidence and witnesses considering the fact he was able to connive with police and abscond right in their presence.
The Hon’ble Court before giving relief to the Doctor ought to have considered the fact that the Doctor is a fugitive from Justice.
In fact he has obstructed the legal system by conniving with police personnel. It is obvious that in some way he was able to exercise undue influence on the police and thereby he could go absconding right in presence of the policemen.
The Hon’ble Court instead of granting him relief should have instructed him to first submit himself before the investigating team and also should have directed that a complaint be registered against the Doctor as well as the police for subverting the process by using undue influence.
It is indeed a question before all us citizens and women specifically, whether Justice is the prerogative of rich people only.
It is a worrying thought that this sort of judgment will act as a precedent in future cases. This goes counter to the present ethos after the 16th December 2012 rape case and its aftermath.
We hope you will relook at the judgment and do the needful.
Forum Against Oppression of Women, Mumbai
SAKHYA (women’s guidance cell)
Women Research and Action Group (WRAG)
CORO (for literacy)
Samajwadi Mahila Sabha
Stree Mukti Sanghatana
Kamayani Bali Mahabal
Address: 29, Bhatia Bhuvan, Babrekar Marg, Off Gokhale Road, Dadar (West), Bombay – 400 028
Email: [email protected]
cc- Home Minister R R Patil