Chandrika Prasad
Yadav Vs. State of Bihar & Ors. [2009] INSC 318 (13 February 2009)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO.296 OF 2009 (Arising out of S.L.P. (Crl.) No.
4243 of 2008) Chandrika Prasad Yadav .... Appellant Versus State of Bihar &
Ors. .... Respondents ORDER Dr. MUKUNDAKAM SHARMA, J.
1.
Leave
Granted.
2.
Appellant
herein filed a complaint before the Chief Judicial Magistrate (for short
`CJM'), Hajipur on 07.02.2008 u/s 366A, 380 read with Section 34 of Indian
Penal Code (for short `IPC') alleging that his daughter Ruchi Kumari
(hereinafter referred to as `victim') aged about 14 years of age had been
enticed and thereafter kidnapped by one Sanjeev Kumar (hereinafter referred to
as `accused'), an Uncle of the victim aged about 20 years with the intention to
marry her. It was stated in the complaint that the said incident took place on
03.02.2008 at 4:00 pm, when the victim had gone to collect wood for cooking. It
was further stated that the accused, thereafter, by breaking the lock had also
taken away a gold chain of bhar, valued at Rs. 40,000/-, an earring of 1 bhar,
valued Rs. 10,000/-, a silver anklet of 10 bhar, valued at around 2,500/- and
cash Rs. 10,000/-. Two uncles of the accused namely Aurun Rai and Vinit Rai
were also named in the said complaint for assisting the accused in the alleged
kidnap.
3.
Cognizance
of the complaint was taken and during investigation the victim was recovered.
The statement of the victim was recorded u/s 164 of the Code of Criminal
Procedure, 1973 (for short `CrPC') and she was sent for medical examination.
The accused was also arrested.
4.
Subsequently,
the complainant-appellant filed an application for seeking custody of her minor
daughter. However, the girl desired to go with her alleged accused husband who
was arrested. The learned CJM vide order dated 07.03.2008 directed that the
victim be sent to the Nari Suraksha Grih (Woman Protection Home), Patna for
safety till the next date, as it was expected that by that time the medical
report could also be received. But the medical report was not produced in court
and therefore the learned CJM extended the period of stay of victim at the
Woman Protection Home.
5.
Aggrieved
by the aforesaid order of the learned CJM extending the period of stay of the
victim at the women protection home and not granting her custody to the complainant-appellant,
he filed a writ petition before the Patna High Court seeking issuance of the
writ of Habeas Corpus. Notice was issued in the said writ petition. However
after hearing the parties, the Patna High Court by a judgment and order dated
07.05.2008 dismissed the said writ petition by holding that since the daughter
of the complainant is kept in a protection home pursuant to an order passed by
the CJM, the writ of the aforesaid nature, as prayed for, is not maintainable
and is also misconceived.
6.
Being
aggrieved by the aforesaid order the present appeal is preferred before us
challenging the aforesaid impugned order contending inter alia that the custody
of a minor girl could not have been denied to a natural guardian i.e. the
father on the alleged ground as stated in the impugned order. It was submitted
that the ground stated in the order of CJM to the effect that the medical
report is awaited is also not a valid ground for denying custody of the minor
girl to the appellant who is the natural guardian.
7.
Notice
was issued to the parties by this Court. On the day when the matter was listed
before the court a statement was made by the learned counsel appearing for the
appellant that even the minor victim girl, 4 namely, the daughter of the appellant
has also now shown her willingness to go to her parents home from the Nari
Suraksha Grih. Thereafter it transpired that the said victim girl, namely,
Ruchi Kumari along with three other girls was missing from the said after care
home.
8.
On
12.8.2008 the Superintendent, Nari Suraksha Grih, Gai Ghat, Patna lodged an
information with the Station House Officer, Alamganj Police Station contending
inter alia that on the previous night, i.e. on 11.8.2008 at about 10.30 p.m.
lady constable Janki Devi and lady home guard Saraswati Devi who were on duty
informed that Nibha Devi alias Minta Devi, Reena Kumari, Ruchi Kumari and Meera
Kumari were found missing and that the male constables posted as security in
the home were sent out to trace them out but the said four inmates could not be
found anywhere. The said intimation was also given to the court upon which an
order came to be passed by this Court on 05.11.2008 directing the Senior
Superintendent of Police, Patna District to take all steps to trace out Ruchi Kumari,
the daughter of the appellant and to produce her before this Court on
04.12.2008. It was also ordered that by the said date the Superintendent of
Nari Suraksha Grih, Gai Ghat, Patna would send a report to this Court as to the
circumstances in which Ruchi Kumari and other three girls ran away from the
said protection and care home. The Member Secretary of the Bihar State Legal
Services Authority was also directed to visit the said Nari Suraksha Grih, to
peruse the records of the 5 said Suraksha Grih and submit a report with regard
to the disappearance of the said girls.
9.
Pursuant
to the aforesaid order, the Member Secretary of the Bihar State Legal Services
Authority has submitted a report, in which she has stated that she visited the
Nari Suraksha Grih on 14th November, 2008 and again on 29th November, 2008.
During the aforesaid visit she had investigated and checked the Entry Register
along with all other connected records with respect to the four inmates viz.,
Ruchi Kumari, Meera Kumari, Nibha Devi and Reena Kumari. She had mentioned in
the said report that during the course of her inquiry she has come to learn
from the Superintendent of Nari Suraksha Grih that the aforesaid four girls
fled away from the protection home on 11.8.2008 at 10.30 p.m., regarding which
she submitted an information to the local police station, the Sub-Divisional
Officer, Patna City, Patna and the Director, Social Welfare Department,
Government of Bihar, Patna. According to the Superintendent no attempt was made
by the police at once to trace out the said girls and, therefore, she filed the
complaint in writing on the next date.
10.
The
aforesaid report of the Member Secretary of the State Legal Services Authority,
which we have very carefully perused, depicts a miserable picture regarding the
functioning and governance of the said 6 women protection home. It is
disclosed that registers were not properly maintained and that there is also no
check on entry inside the said home.
It is stated in the
said report that the aforesaid four girls fled away on 11.8.2008 by jumping
over the rear wall of the Nari Suraksha Grih which was of 12 feet height and
that fleeing of such girls from that home is a regular feature and practice.
Our attention was also drawn to the fact that the Superintendent of the said
home was earlier transferred due to several complaints regarding the
administration of the said home. The report indicates that there is lack of
sufficient security guards inside the said home and also lack of staff. The
father of the victim girl, appellant herein also filed an additional affidavit
stating that his daughter disappeared from the women care and protection home
on 11.8.2008. He has made a grievance that the police officials at Patna were
not interested to trace out the victim and rather they are pressurizing him to
withdraw the case. He had also complained of receiving threats from the police
as also from the State.
11.
When
the matter was taken up in the court, counsel appearing for the appellant made
an oral statement that the minor son of the appellant was picked up by the
police and that he has not been released. It was stated that the police picked
up his 16 years old son Mintu Kumar and thereafter his son had not returned.
The said statement was reiterated in an additional affidavit filed by the
appellant. He had stated that he is a 7 Government servant and is now posted
in the office of the Executive Engineer, P.W.D., Bihar. He had also stated in
his affidavit that he had sent the details of complaint to the National Human
Rights Commission, New Delhi, the Director General of Police, Bihar and the
Chairman, Legal Services Authority, Bihar. He has reported that the police was
not interested in tracing out his daughter and rather they are trying to
penalize him and his family for approaching the court of law.
12.
Pursuant
to the order of this Court a status report is filed by the police wherein it is
stated that the police tried to contact the father and maternal uncle of Ruchi
Kumari but they could not be located. It was also stated therein that the son
of the appellant, namely, Mintu Kumar aged 19 years was taken to the police
station Alamganj and was questioned about the whereabout of Ruchi Kumari and
that thereafter the said boy was examined and then sent back home. The
allegation that the police is pressurizing and using coercion on the appellant
is denied in the said status report.
13.
It
transpires that due to the detailed investigation and raids made by the police
at different places they were able to recover two girls namely Meera Kumari and
Reena Kumari who had allegedly ran away with Ruchi Kumari. On questioning it
was found out from them that they were helped in coming out from the protection
home by the relatives of the appellant, 8 namely, maternal uncle and other
relatives of the appellant who came to protection home and took away all the
four girls. Two of them except Ruchi Kumari and Meera Kumari were allowed to go
to their respective homes. It also transpires that a letter has been written by
the victim, Ruchi Kumari to the CJM on 13.12.2008 which was sent through
registered post from Gulzar Bagh Post Office, Patna alleging inter alia that
the relatives of the husband of the victim helped her in running away from the
protection home.
14.
In
the said status report it is stated that the police team specially constituted
for the said purpose is making investigation and taking all steps to recover
Ruchi Kumari. Reference also could be made to the statement of the Meera Kumari
which was recorded by the police under Section 164 of the CrPC. It was stated
in the said statement that at about 8.00 p.m. at night maternal grand-mother,
grand-father and uncle of Ruchi Kumari arrived at Remand Home, Patna and took
away all the four girls viz., Nibha Devi, Reena Kumari, Ruchi Kumari and Meera
Kumari from the Remand Home, Patna.
15.
Having
scrutinized all the records and having heard the learned counsel appearing for
the parties, we are distressed to find that a minor victim girl, who was sent
to the protection home by a judicial officer for providing home and safety
would be missing from the said home without 9 the knowledge of the authority
managing the said protection home. It is shocking that a home which is being
run by the State Authority and named Suraksha Home has practically no security
and that the inmates of the house either could be forcibly taken away or could
run away from the said home easily and that also without the knowledge of the
Authority. What is more astonishing is the fact that such incident is said to
be a regular affair.
It is unfortunate
that although the police was informed immediately thereafter, the police did
not even think it appropriate to swing into action immediately.
16.
On
perusing the records, we find that there is total lack of supervision and
control in the management of the home and there is also lethargy and negligence
on the part of the police authority, which is entrusted with the duty of
providing security and safety and also maintaining law and order and also
empowered to investigate into an offence brought to their notice. The State
authority is duty bound to see that all its welfare measures are being carried
out effectively and meaningfully but from the facts of the present case it
appears that it has failed to discharge its responsibility.
17.
If
the inmates of the protection home could flee away, as alleged, from the
control of authority managing the home or if persons could enter the said home
at the dead of night without detection or permission and 10 could take away
girls under the nose of the people protecting the home, lot of explanation
would have to be given by the appropriate Government and the competent
authority regarding their capabilities of offering proper care and protection
to such girls and women. Probably it is for such reasons that today these care
and protection homes are becoming homes for trafficking of girls and women. It
appears that the State Government is totally oblivious of its responsibilities
regarding implementation of social welfare programmes of providing secured
homes to destitute women and also children in conflict with law.
18.
Considering
the gravity of the situation and the problem, we direct for conducting a proper
and detailed inquiry into the whole episode and affair for we will like to be
enlightened not only about the functioning, management and the security of Nari
Suraksha Griha but also regarding whereabout of the concerned girl and how she
could go missing from the state home and as to who is responsible in helping
the girl to flee away, if it is so and consequential actions taken by the
police. We request the Hon'ble Chairman, Bihar Human Rights Commission to cause
such an inquiry and then submit a report to us preferably within six weeks from
the date of communication of the order. In addition the Chief Secretary,
Government of Bihar is also directed to submit a report within the said period
with respect to the maintenance and governance of the said protection home
specifically indicating the security measures and the steps 11 being taken up
in that regard. The report should also indicate the reasons behind the
inability of the police to trace out the missing girl and also the status of
the investigation. He shall also inform through the report if any action is
taken or contemplated against any of the erring officer or employee.
19.
We
hope and expect that the report, as aforesaid, to be submitted by the Hon'ble
Chairman and the Chief Secretary would be a comprehensive report. List after
six weeks.
.................................J.
(S.B. Sinha)
.................................J.
(Dr. Mukundakam Sharma)
New
Delhi;
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