Kalyan rape-murder case: ‘POCSO accused’s right to bail can’t supersede children’s right to safety’

Sahab galti ho gayirdquo Thatrsquos what Vishal Gawli 28 told the police when he was apprehended on suspicion of having sexually assaulted and murdered a 12yearold in his neighbourhood in Kalyan on December 23Perhaps it wasnrsquot his ldquolapserdquo alone that resulted in the tragedyIt has since emerged that Gawli is a historysheeter with more than eight criminal cases lodged against him Half of those were sexual offences including two cases of sexual abuse against children registered under the POCSO Act All cases are registered at Kolsewadi police station which is where the December 23 case was also lodged All eight casesmdashwhich date as far back as 2014mdashare under trial and Gawli got out on bail each time His most recent arrest was in a 2023 POCSO case on charges of molesting a minor It was while he was out on bail in that case that he allegedly kidnapped sexually assaulted and asphyxiated the 12yearold last monthVishal Gawli the accusedWhy was an alleged sexual predator let out on bail despite two previous POCSO cases and two other sexual offences registered against him This despite the fact that each time he was granted bail he allegedly committed yet another crime which should have prevented him from receiving any further relief Criminologists child rights activists academicians and psychiatrists are now raising serious concerns over lacunae in the criminal justice system that may be letting alleged sex offenders out of jail on bail leaving them free to prey on their next victimAddl CP Sanjay Jadhav L Bhuwan RibhuThe Kalyan case comes at a time when Thane district is still shaken from the Badlapur school sexual assault case in August 2024 The furore over the Badlapur case had prompted the Thane City Police to incorporate several measures to better protect women and children from sexual violence including setting up a database of all undertrial and convicted POCSO offenders in their jurisdiction so the force could keep an eye on them The revelation about Gawli being a historysheeter is now likely to add momentum to the policersquos efforts on this frontIt was in fact this database that helped the police zero in on Gawli as the prime suspect in the Kalyan case when no other leads were panning out The victimrsquos parents had suspected a neighbour but on questioning him the cops found he had no role in the incident ldquoIt was only when ACP Kalyanji Ghete and Inspector Crime Ganesh Nhayade of Kolsewadi police station went through the police database of habitual offenders that Gawli appeared on their radarrdquo says Sanjay Jadhav Additional Commissioner of Police East RegionRohini Salian former Chief Public ProsecutorThe police discovered that not only was Gawli out on bail on another POCSO case but he also lived in the same neighbourhood as the victim in the building opposite the chawl where she resided While this helped the police apprehend the accused within two days of the incident it also raises questions about why an alleged POCSO offender was let out of jail to begin withUnconfirmed news reports stated that the accused had produced a doctorrsquos certificate citing a mental health condition on the basis of which he allegedly got bail in the 2023 POCSO caseHowever DCP Zone 3 Atul Zende and the investigating officer in the case both denied this stating ldquoWe have checked all the previous bail records of the accused and have not come across any mention of a mental health issue cited as the reason for granting bail We are still inquiring the grounds for bail in his previous casesrdquoThe 12yearoldrsquos body was transported in this auto rickshaw and dumped along the wall of this burial ground in KalyanWhether or not the accused claimed to have a mental health issue is a moot point say experts His claimrsquos veracity would have to be doubly ascertained Under the Mental Healthcare Act 2017 such an accused would be referred to the mental health review board who evaluate and certify his or her mental health condition and if required the court would then refer the undertrial to the care of a hospital Under no circumstances would this be grounds for release into society on bail says Dr Harish Shetty a wellknown psychiatrist attached to Dr LH Hiranandani Hospital PowaildquoPreliminary inquiries have revealed that the accused had committed the last POCSO crime of molestation in August 2023 He was behind bars for approximately 60 days till October 2023 before he was released on bailrdquo adds DCP ZendeThe police official further confirms that as per their preliminary findings the accused had likely spent a cumulative of two andahalf to three years in jail in connection with the cases lodged against him between 2014 and 2023 even as trial remains underway in all eight casesWhile the Indian justice system is moving towards the policy of ldquobail not jailrdquo in an effort to be cognisant of the human rights of criminal accused and undertrialsmdashespecially in light of trials dragging on for yearsmdashit bears examining whether this lenience should be applied for heinous crimes as well especially when it comes to rape and POCSO casesDr Tanaya Kamlakar who is Assistant Professor Law at the Maharashtra National Law University Mumbai as well as Director of the Centre for Research in Criminal Justice tells Sunday midday ldquoIn this case the accused already has eight prior offences registered against him This goes a long way to indicate that one has to be very careful while leaving such an offender out on bail or expecting reformation from a person with such criminal tendenciesrdquoldquoGawli took the victim to his house where he raped and killed her He saw her parents searching for her in a devastated and panicked state of mind when the body was actually with him Undeterred he took the help of his wifemdashmaybe by threatening her as wellmdashto dispose of the body and conceal the commission of offence It shows he is a tormented predatory criminalrdquo she addsAll eight cases against Gawli are registered at Kolsewadi police stationProfiling of sexual offenders and segregation of repeat offenders from human habitations are crucial if the government wants to ensure the safety of women and children from sexual crimes adds Dr KamlakarThe Kalyan sexual assaultmurder case highlights yet another lapse in the countryrsquos criminal justice systemmdashslow pace of trials despite fast track courts being set up under the POCSO Act to dispense justice swiftly to survivors and victimsAlso ReadKalyan rapemurder case Court remands accused couple in 14day judicial custodyldquoIf the trials in any of Gawlirsquos earlier offences had been concluded he would not have had the opportunity to execute another crime While reformation of criminals holds significance speedy justice and punishment of such offenders is equally important for the deterrence of crimerdquo Dr Kamlakar emphasisesDr Tanaya Kamlakar and Atul Zende DCPAs per the Crime in India Report 2022 by the National Crime Records Bureau there are a total of 94930 cases registered for rape under Section 376 of the Indian Penal Code and Protection of Children from Sexual Offences POCSO Act Of these 332 per cent are IPC cases and 668 per cent are POCSO cases The average disposal rate for these cases stood at a mere 10 per cent even as crimes against women and children rose by 109 per cent that yearA study conducted in 2017 revealed that if no new case of child sexual abuse was reported it would still take 20 years to dispose of the cases that were pending as of the end of 2016 It was to tackle this backlog that the Supreme Court had in 2019 passed a detailed order mandating the setting up of exclusive fasttrack courts for the trial of cases under POCSO ActAs per the Bharatiya Nagarik Suraksha Sanhita BNSS trial in rape cases needs to be completed within two months of the chargesheet being filed while POCSO Act mandates that trials be completed in a year If the BNSS and POCSO guidelines are adhered to fasttrack courts would need to dispose of 554 cases every day to clear the total backlog of over two lakh rape and POCSO cases states the 2022 report Fast Tracking Justice mdashRole of Fast Track Courts in Reducing Case Backlogs published by child flights organisation India Child ProtectionThe low disposal rate of cases is accompanied by a dismal conviction ratemdashjust three per cent in 2022mdashpoints out advocate and activist Bhuwan Ribhu Founder of Just Rights for Children With such poor conviction rates there is little fear of law among criminals emboldening them to commit further crimes while the publicrsquos faith in the justice system is further eroded ldquoEvery day thousands of cases go unreported because of the trust deficit in the legal system This is the biggest travesty of justicerdquo says Ribhu further stressing ldquoThere needs to be a culture of accountability in the responding agencies including police rehabilitation services and the judiciary and the issue requires a systemic overhaul through systematic change The accusedrsquos right of bail especially in cases of repeat offenders must not be allowed to supersede the right to protection for society and our childrenrdquoPoor conviction rates and trial delays are not the only issue Ribhu points out ldquoThe law mandates compensation to victims We are currently assisting the Delhi High Court where over 87000 victims in rape and POCSO cases have not been provided compensation extending their ordeal furtherrdquoAdvocate Rohini Salian former Chief Public Prosecutor tells this reporter ldquoIt is unfortunate that the POCSO Act which was introduced to safeguard children from sexual offences by setting up fasttrack courts has not been able to deliver verdicts in a timebound manner This allows habitual perverts to look for new targets once they are out on bailrdquoldquoIt is the judiciary which needs to take proactive steps before granting bail to such habitual offenders by making police accountable for continuous monitoring of the accused out on bail or else he continues to pose a threat to the society rendering a stringent act like POSCO meaninglessrdquo she addsIndia would do well to follow the UK in this respect says Dr Beulah Shekhar former Chair Professor of Criminology at Loknayak Jayprakash Narayan and National Institute of Criminology and Forensic Science ldquoThe UKrsquos Child Sex Offender Disclosure Scheme allows citizens to ask the police if someone working or living in proximity to children has a record of child sexual offences It is high time that India should also have similar laws and data banks on child sex offendersrdquo she saysThe scheme while not a law is commonly called Sarahrsquos Law after eightyearold Sarah Payne who was murdered in 2000 by a convicted sex offenderDr Shetty agrees that India needs a similar scheme ldquoPOCSO offenders should be identified and their names should be passed on to the community as is done in the Westrdquo he saysOn the other hand others warn against a kneejerk reaction that might result in ethical compromises over the basic rights of prisoners ldquoIt is essential to approach discussions on such sensitive issues with a scientific and ethical lensrdquo says Dr Suresh Bada Math Professor of Psychiatry and Head of Forensic Psychiatry Unit at the National Institute of Mental Health and Neuro Sciences BangaloreldquoFor a comprehensive understanding it is vital to conduct a detailed analysis of all victims analyse the crime scene examine the modus operandi interview survivors if any and review medical and postmortem findings We need to check for similar unsolved cases involving children in the neighbouring police stations and investigate them too Additionally an assessment of the accused including their family history upbringing personality traits and psychological evaluation is crucial Without such holistic data forming opinions or making generalized statements would be both premature and unethicalrdquo he cautionsPsychiatrist Dr Shetty points out that there is also a wider social problem at play ldquoWhen an accused who has multiple cases roams is allowed to roam free it reflects the societal indifference and callousness It also reveals a lack of fear and the absence of societal vigilance against antisocial behaviours in closed communitiesrdquo he addsSchools have become a key focus area for the policersquos outreach programme as well with Additional CP Sanjay Jadhav stating ldquoWe are in the process of working out certain Dos and Donrsquots for children and women to prevent sex crimes Our police teams have started visiting schools and institutions in our vicinity to educate the students and faculty members about crimes against children and women and how to be extra vigilant against themrdquoDr Shetty points out that the Kalyan victim was left even more vulnerable because she had never been sent to school by her parents and missed out on such programmes ldquoIn the absence of schooling and without any education of good or bad touch she became easy prey for the accusedrdquo he says adding that this also reveals the disempowered status of the familyMeanwhile on Saturday Gawli and his wife and accomplice Sakshi were sent to magisterial custody until January 18 says Investigating Officer Ganesh Nhayade The cops also had a major breakthrough on tracing Gawlirsquos mobile phone and SIM card They are looking for the bag in which the body was moved from the crime scene The next date of hearing is January 18Societyrsquos roleDr Beulah ShekharCriminologist Dr Beulah Shekhar cites the ldquocrime and routine activity theoryrdquo proposed by Marcus Felson and Lawrence E Cohen in 1979 which highlights three basic ingredients for criminal activity ldquoa potential offender a suitable target and the absence of a capable guardianrdquoldquoWhere does genderbased violence begin Why does it happen Felson and Cohen cited three crucial componentsmdashfirstly a suitable target where in a person is vulnerable and is easily attacked or targeted second is motivated offenders who are ready to commit the crime and certain they will get away with it and third the absence of capable guardians which is the most important thing If any one of these components are removed gender based violence will not occurrdquo says ShekharldquoThis can happen by either removing the suitable targetmdashby making the target less vulnerable or reducing the motivation of the offender by ending impunity as the certainty of punishment and not the severity will deter him Finally the situation can also be neutralised by the presence of a capable guardian We need to work on all three areas work with potential targets by making them less vulnerable with potential offenders by ensuring punishment for crimes and by society acting as a capable guardian instead of standing by and letting the crime happenrdquo she explainsDr Shekhar adds that one way to ensure children are less vulnerable is to train society at large to be alert to any potential sexual crime ldquoWhile handling the 1098 Childline helpline we had trained auto drivers and bus conductors to look for such vulnerable children whose body language would speak volumes about their discomfort on being with a stranger who may either intimidate or touch them inappropriately These trained conductors and auto drivers can then raise a red flag and seek the policersquos or Childlinersquos assistance We must understand that police are public in uniform while the public are police without uniform It is high time that society becomes vigilant and looks for such perpetrators around usrdquo warns Dr ShekharHistorysheeter2014Unnatural sex without consent section 377 of IPC2015Attempt to murder IPC 2016Child molestation POCSO Act2018Externed from Thane district for 2 years2019Breached externment order2021Molestation IPC2022Robbery IPC2023Child molestation POCSOSource DCP Zone 3 Atul ZendeStatistics Number speaks volumes Data published by India Child Protection in their latest report on Fast Tracking Justice ndash Role of Fast Track Courts in Reducing Case Backlogs stated ldquoChild sexual abuse is one such criminal category that plagues the children of India Despite concentrated efforts legal provisions and an improved support system child sexual abuse is still considered taboo and the majority of people prefer to keep silent on the issueAs per Crime in India Report by National Crime Records Bureau 2022 the total cases registered against women and children for rape Indian Penal Code IPC Sec 376 and Protection of Children from Sexual Offences Act 2012 POCSO is 94930 of which 332 percent accounts for the rape cases and 668 percent accounts for the POCSO cases In 2022 cases related to crime against women and children has witnessed a significant increase of 109 percent and the average disposal rate of these cases stand out to be only 10 percent A study conducted in 2017 revealed that if no new case of child sexual abuse was reported then it would still take 20 years to dispose the pending cases as of the end of 2016 Looking at the alarming rise in the number of reported child rape incidents and the pendency in the disposal of cases the Supreme Court of India on 16 December 2019 passed a detailed order with directions to State Governments on the setting up of exclusive courts for the trial of cases under POCSO Act This was in continuance of the 25 July 2019 order when it had directed all states to ensure that an exclusive POCSO court be set up within 60 days in every district that has more than 100 POCSO cases pendingThe Indian judicial system has long grappled with challenges such as case backlogs delays and inefficiencies necessitating the adoption of measures for expeditious justice delivery In response to these issues Fast Track Special Courts were introduced as a specialized approach stemming from Supreme Court orders issued on 25 July 2019 and December 16 2019 Following the incident of December 2012 Nirbhaya incident the Government came up with a dedicated fund known as the Nirbhaya Fund The main objective behind setting up this fund was to provide funds that could be utilized towards schemes specifically designed to improve the safety and security of women in the country However 24 percent INR 1700 Cr of the Nirbhaya Fund remain unutilised and unallocated As of the financial year 202324 the Nirbhaya Fund has been allocated a total of INR 7213 Cr Of which INR 5513 Cr has been released and utilised which constitutes about 76 percent of the total allocation This unutilised amount of the Nirbhaya Fund may be utilised for the establishment and smooth functioning of additional FTSCsA total of INR 1952 Cr has been allocated for extension of the existing FTSCs for three years till 2026 roughly INR 651 Cr per yearPerformance of Fast Track Special Courts FTSCAs of August 2024 a total of 755 Fast Track Special Courts including 410 exclusive POCSO courts are functional out of the 1023 earmarked courtsIn total 416638 rape and POCSO cases have been instituted in FTSCs since the inception of the SchemeFTSCs have shown remarkable efficiency by disposing of 52 percent of the cases filed since their inception A total of 214463 out of 416638 cases were disposed since the initiation of the FTSC SchemeMaharashtra 8037 and Punjab 7137 have recorded a high rate of disposal of cases which is well above the national average 5237West Bengal has recorded the lowest rate of disposal 237 among all states and union territories It is also due to the fact that the state has made functional only 3 out of 123 earmarked FTSCsIn 2023 alone 81471 new rape and POCSO cases were instituted of which a total of displayed significantly higher efficiency with a disposal rate of 83 percent in the same year which saw a further increase to 94 percent in 2023As per the estimates based only on the central governmentrsquos share of funding the average operatingfunctioning cost per FTSC was estimated to be INR 2337 lakhs in 2020 By 2022 however this cost had significantly decreased to INR 1752 lakhs representing a 25 percent reduction at the allIndia level In total INR 2653 Cr has been allotted for the establishment and functioning of FTSCs since the launching of the FTSC Scheme As of August 2024 INR 917 Cr has been released by the central government 76319 cases were disposed by FTSCs While the same cases may not have been disposed this number the figure of 76319 out of 81471 is staggering and shows an impressive disposal performance at the rate of 94 percentThe disposal rates of rape and POCSO cases across all courts in the country were alarmingly low with only 10 percent of cases being disposed in 2022Source Data published by India Child Protection in their latest report on Fast Tracking Justice ndash Role of Fast Track Courts in Reducing Case BacklogsEstimated number of years required to clear backlogsIndia needs to dispose at least 1 case of rape or POCSO every 3 minutes to clear the backlogs as of December 2023 in one yearThe backlog of pending rape and POCSO cases in courts nationwide has consistently increased over the past three years rising from 281049 in 2020 to a staggering 417673 by the end of 2022Given the current disposal rate of 76319 cases per yearIndia would need approximately 3 years to clear the existing backlog of 202175 rape and POCSO cases at the level of FTSCsif no new cases are addedThese estimated years for completingbacklogs can go on an infinity if new cases are added to the existing FTSCs and if no new courts are formedfor fast tracking the cases of rape and POCSOAs per the Bhartiya Nagarik Suraksha Sanhita BNSS replaced with Code of Criminal Procedure CrPC thetrial in rape cases needs to be completed within a period of 2 monthsafter filing of the chargesheet and as per the POCSO Act the Special Court shall complete the trial within a period ofIf the BNSS and POCSO guidelines are adhered to FTSCs need to dispose 554 cases every day to clear the backlog of 202175Source Data published by India Child Protection in their latest report on Fast Tracking Justice ndash Role of Fast Track Courts in Reducing Case BacklogsDorsquos and Donrsquots for childrenDonrsquot speak to strangers and do not eat anything offered by strangersIf any known relative or known person inappropriately touches a young child inappropriately immediately inform parentsIn school if any male or teacher touches a child physically in an inappropriate manner immediately inform parentsIf a child is reluctant or scared to go to school or if any changes are visible in their behaviour parents need to tactfully inquire about the sameDo not step out handing over the custody of your child to any distant relative or neighbour or servantsEnsure a female staff is present all time in the kinder garden school pick up and drop busIn case of any complain by the child in his her private parts get the child immediately examined by a medical practitioner and inquire the reasonComplain about stalkers and those passing remarks to parents and policeScream for help in case a stalker or someone make lure remarks and make attempt to touch inappropriately at a public placeCourtesy Additional Commissioner of Police East Region Sanjay JadhavDos and Donts for women studying or at workplaceWhile alone at home ensure that the door is opened only after ensuring that the person on the door is known and confirm the same through the peephole or putting the door safety chain No strangers should be allowed entry into the houseEvery housing society must have CCTV cameras on every floorCarry pepper spray in a hand bag and use it in case of emergencyInform family members or police in case of anyone stalking or making lure remarksAvoid visiting secluded isolated places at night hoursDownload a security application on your mobile phoneIncase anyone make an attempt to send lure messages or make phone calls making sexual advances inform your parents and policeIncase any of the faculties or staff attempts to touch you inappropriately complaint about the same to higher authorities in the college including principalInform Nirbhaya Committee or inhouse sexual committee of your organisation in case any colleague is making sexual remarks or advances at place of workCourtesy Additional Commissioner of Police East Region Sanjay JadhavHelpline numbers for Thane Commissionerate