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Vishnu Dayal Sharma v. State Of U.P. & Others - CRIMINAL MISC. WRIT PETITION No. 15630 of 2006  RD-AH 12187 (17 July 2007)
Court No. 46
Criminal Misc. Writ Petition No. 15630 of 2006
Vishnu Dayal Sharma ..................................................Petitioner
State of U.P. and others...............................................Respondents
Hon'ble Amar Saran, J.
Hon'ble R.N. Misra, J.
We have heard Shri Sukhendu Pal Singh, learned counsel for the petitioner, Shri A.K. Sand, learned Additional Government Advocate, Shri K.C. Sinha, learned Assistant Solicitor General of India, Shri D.K. Singh, Joint Registrar (Inspection), High Court, Allahabad and Shri Jagriti Singh, who has appeared in person and moved an application stating therein that a website has been created and offered the State to utilise the same for feeding information about missing persons therein.
An affidavit of Deputy Secretary (Legal Cell) D.G.P. Headquarters, Lucknow dated 16.7.2002 has been filed on behalf of the State of U.P., which mentions that after 645 children, who were rescued up to 3.4.2007, for the period from 4.4.2007 to 30.6.2007, 387 children have further been rescued and therefore, a total 1032 children have been rescued from 1.1.2007 to 30.6.2007 and only 1122 children remain to be traced out, who are missing since 2002 up to the present date.
This is immensely gratifying information and we must congratulate the efforts of the police, the State and Central governments and all the counsel and officers who have come forward to give unstinting support, beyond the call of duty and seem to have made this case their personal cause. This is the glory of this essentially non-adversarial litigation, where we are all embarked on a pious mission to save and rescue our missing children, and indeed to take steps so that the pre-conditions for the child disappearing our comprehensively addressed, and there is significant reduction in the problem. We hope that the pressure will be kept up even after the change in the State Government and the new Inspector General (Crime) will ensure that there is no let up in effort to rescue the balance 1122 children who remain to be traced out, and for preventing future abductions of children and that an officer deputed by him will approach the learned Additional Government Advocate and submit the compliance report about our orders and the progress of investigation and efforts in tracing out the remaining missing children well within time so that affidavits may effectively be drafted and filed and proper assistance be rendered to this Court in monitoring the issue from date to date. A more detailed break up shows that so far as 719 children who had gone missing in 2006, uptil 30.6.2007 316 children have been rescued and 403 children remain to be traced out.
Shri D.K. Singh, Joint Registrar, High Court has submitted a compliance report signed by the In-charge Registrar General dated 16.7.2007, which mentions that so far as our directions in the order dated 10.5.2007 for maintaining the registers of cases of missing children, to be maintained by the district lawyers of the Legal Services Authority, which were to contain the details of the progress of investigation etc. and the direction to the District Judges to submit information to the Court in tabular form pertaining to the entries mentioned in our earlier order and additional information that they may like to furnish, the Hon'ble Senior Judge on 12.6.2007 has recommended that the said matter be placed before the Administrative Committee, which is likely to be meet shortly so that the draft circular letter which has been framed (and was produced before us), may be circulated to the District and Sessions Judges along with the earlier order of the Court dated 10.5.2007. We hope that the Registry will be able to send off the said circular letter along with our previous order within a month.
Sri D.K. Singh further points out that reports which were hitherto unreceived from nine judgeships viz. Basti, Chitrakoot, Firozabad, Maharajganj, Mirzapur, Shahjahanpur, Sitapur, Sonebhadra and Varanasi have now been received. They state that legal aid is being provided by the Legal Aid Committee to the poor persons whose children have gone missing . Further suggestions have been given by the District Judge, Varanasi that child labour is also a great social menace, and immediate legal aid is needed for providing relief to the suffering child and also for problems relating to money lending. He further suggests that child labour should also be brought within the ambit of the special cell. We appreciate his concern. The District Judge may hold discussions in this regard with the Senior Superintendent of Police and the District Magistrate concerned and if the District Level Committee considers it feasible, there should be no objection for including these matters relating to child labour and under the Money Lending Act also within the ambit of the special cell.
A report of the Member Secretary, Legal Services Authority has also been received. The said report has defined the categories of persons who are entitled to legal aid under Section 12 of the Legal Authorities Act. They are: members of Scheduled Castes or Scheduled Tribes, a victim of trafficking in human beings or begar, a woman or a child, a mentally ill or otherwise disabled person, a victim of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocities, flood, drought, earthquake or industrial disaster or an industrial workman, a person in custody in a protective home under the Immoral Traffic (Prevention) Act, 1956 or in a juvenile home under Section 2(1) of the Juvenile Justice Act, or in a psychiatric hospital or nursing home and a person whose annual income is less than Rs. 50,000/- or higher amount as may be prescribed by the State Government. The report further mentions that Legal Services Committees have been constituted at the High Court and district Court levels and panels of lawyers have been constituted. The parents of missing/abducted children could contact the Secretary District Legal Services Authority as an when they need legal aid. Logistical and financial support are being provided to High Court Legal Services Committee as well as District Legal Services Authorities for providing legal services as per provisions of the Act and Rules framed thereunder.
We regret to note that beyond quoting the provisions of the Legal Services Authorities Act, and the formal institutional mechanisms that are in place, we fail to find the committed and human response on how to effectively provided legal aid to the needy sections that we were looking for, in the report submitted by Member Secretary of the Legal Services Authority. In our last order dated 10.5.07 we had observed: "Good institutions can be set up, but ultimately it is the living concern of human beings, and a spirit to find the missing child and to help the suffering parent that will make all the difference, and the police and district administration, the Courts and rights sensitive lawyers providing legal aid should devise new and creative methods how to get more and more missing children recovered, so that citizens can be truly helped." We think that the mechanical response by the Member Secretary that the needy person may approach the District or State Legal Services Authority does not meet the requirements of the situation or the spirit of our directions. The exercise of trying to locate missing children was initiated by this Court when it was pained to learn about incidents like the "Nithari episode" where helplessly the poor parents of missing children were approaching police stations and other authorities only to face rebuff, and the police was generally asking them to provide information of their missing children! It was only when the conscience of the Court was touched that we embarked on this exercise for repeatedly monitoring the matter, and issuing a series of directions. Fortunately senior police officials and others saw the importance of the cause and gave whole hearted support in this endeavour and today in hardly six months 1032 children have been recovered. This could not have been done by simply quoting provisions, and by passing the buck by telling disempowered human beings to approach A or B authority. Some district judges and police officials as is mentioned in our previous order have asked for aid for setting up cells for lawyers to sit. Has the Legal Services Authority written a single letter to the district judges concerned enquiring about how the Authority could help or tried to provide leadership and inspiration to district judges, who still look at giving legal aid as a formal, and perhaps unnecessary imposition?. Has he taken up the issue of providing funds for publication of photographs of missing children of indigent parents in local newspapers which have been sought for by some judicial and police authorities in their reports quoted in our previous order? This Court has been crying hoarse in each order to set up a web site, which would contain information and photographs etc. about the missing child. Has the Member Secretary even cared to look at these problems and to take it up with the government departments concerned for addressing them, if the Authority itself lacks the financial wherewithal or given concrete suggestions to this Court how to proceed in these matters? Is it enough to quote laws and scriptures? What steps has the Authority taken to make legal aid a reality for suffering humanity? We hope that now the Member Secretary shall take proactive interest to ensure that legal cells are effectively constituted and that he would write to the District Judges concerned and enquire from them about the problems that they are facing in providing legal aid, and make efforts to provide funds directly or in coordination with other departments for publication of photographs of the missing children in newspapers etc. for indigent resourceless persons. Unless that human element is alive and there is a burning desire to give legal aid, we think that mere citation of provisions of the Act will not make legal aid a reality for so many suffering and resourceless persons. On the next date of listing we would like details of proactive measures taken or proposed to be taken by the Legal Services Authorities for making legal aid a concrete reality in different places, and cases.
In pursuance of the order of this Court dated 10.5.2007, directions were issue by the Director General, Prasar Bharti, New Delhi whereupon the Doordarshan Kendras at Allahabad, Bareilly, Mau, Varanasi, Lucknow and Gorakhpur have been telecasting informations of missing persons including children free of cost and the time slots have been mentioned in the affidavit filed on behalf of the Central Government. We appreciate this contribution of Prasar Bharti to this worthy cause.
In spite of the repeated directions of this Court in its orders dated 22.3.07 and 10.5.07 to constitute a website on the basis of coordinated efforts between the State and Central Governments mentioning particulars of the missing children, displaying their photographs, which could be used by the parents, and police etc. and which could also facilitates exchange of information between different States and the Centre, and which could also be available for access locally in the cells for missing children or elsewhere in the districts, we regret to note that no progress details for creating such web sites have been made mentioned either by the Centre or the State authorities in their affidavits. As noted in our order dated 22.3.2007 that the Central Government had committed to launch the website of missing persons by June, 2007. But no information of the progress in this regard is mentioned in the affidavit filed by the Asst. Solicitor General today. We therefore direct the Central and the State Governments to positively furnish relevant information about setting up of website by the next date of listing. The State could also utilise the police website, which we are informed by the learned Additional Government Advocate, already exists for containing information about missing children.
In sharp contrast to this apathy of the State and Central Governments on this point a public spirited lawyer Sri Jagriti Singh has himself come forward and moved an application that a social organisation GCS (General Collaboration Services) Varanasi with which he appears to be connected has already developed a website www.missingfound.org which has been launched in public interest. It provides on line information/data of missing and untraced persons for free use by the persons connected with the missing persons and the State authorities. We direct the State to take a lesson from this public spirited lawyer and his organization, and even to utilize the services of this organization if it is found feasible, until the bureaucratic rigmarole of setting up the State's website is sorted out.
Progress in this regard should also be furnished to this Court on the next date of listing.
There is also silence in the affidavits on our direction in the previous order to the State government to provide resources to the concerned police or other authorities for getting photographs of children of indigent persons published in news papers. We had also directed the D.M.s and Police Chiefs in different districts to ask prominent newspapers to publish photographs of missing children as a charitable cause. We hope that action will be taken in this regard by the next date of listing, and a progress report submitted to the Court.
One further positive development in this case is that the petitioner's son Krishna Gupta was recovered from a train Jodhpur-Howrah Express on 19.4.2007 with the aid of Chandra Prakash alias Chandu, a resident of his village and was produced before the ACJM, Agra where his statement under Section 164 Cr.P.C. was recorded. The said boy was missing since 22.2.2005 about whose disappearance an FIR was lodged at case crime No. 9 of 2007, under Section 364 IPC. However, in his statement under Section 164 Cr.P.C. he confessed to have run away from his home while he was studying in Class XI and he was working in Bombay in a hotel. Therefore, no offence of abduction was disclosed. Therefore, the case of Vishnu Dayal Sharma, has become infructuous and is closed.
It is noteworthy as already mentioned in our previous order dated 10.5.2007 that children of older ages often run away due to stress of studies, parental strictness or on account of romantic liaisons, or dreams of joining the Film world etc., and that cases of forcible abduction may not invariably be the causes of their disappearance. However, so far as the younger children or the children with disabilities are concerned, they are more likely to have been made victims of abductions for ransom, or trafficking for labour or for sexual abuse, although older children are also sometimes abducted for these reasons. It was pointed out by the learned Additional Government Advocate that police officials often express difficulties in recovering these children because their parents are unable to provide photographs or furnish any adequate facial and physical description of the children. Very young and uneducated children or mentally weak children are often unable to disclose their home addresses to the rescuers to unite them with their parents.
We think that a large part of this difficulty could be obviated if mandate of Article 21-A of the Constitution (which was introduced by the 86th Amendment Act, 2002) and the directives of this Court in J.P. Unnikrishnan and Ors. v. State of Andhra Pradesh, AIR 1993 SC 2178, making primary education free and compulsory [which aspect has been approved in the eleven Judges' bench decision of the Apex Court in T.M.A Pai v. State of Karnataka and Ors., AIR 2003 SC 355, and again in the seven judge decision in P.A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226] are implemented by the State. A missing child who was being educated would have no difficulty in informing his rescuer about his address in case he is lost or is abducted. Also once every child between the ages 6 and 14 is expected to be in school and if any child is found outside school or loitering about or engaged in any kind of labour or in any other condition, the police or the gram panchayat or municipal authorities or the headmasters or other authorities or persons would immediately conclude that the said child could be an abducted, trafficked, neglected or abused child.
Apart from the fact that provision of education is the best way for development of a child which is a vital human resource for the State and society, the provision of free mid-day meals with a minimum content of 300 calories and 8-12 grams of protein each day for a minimum of 200 days which has now been mandated in government and government assisted schools by the Apex Court order dated 28.11.2001 in People's Union for Civil Liberties v. Union of India, reported in (2007) 1 SCC 728, the provision of cooked meals would provide a good incentive to the hungry, poor child to regularly attend school, and it would also provide a vital nutritional supplement for developing the child's mental and physical abilities.
We, therefore, require the Principal Secretary (Education), Secretary Women and Child Development and Principal Secretary Labour, U.P. and other concerned authorities to furnish details to this Court on the next date of listing about the steps that are being taken for implementing the mandate of Article 21-A and the decisions of the Apex Court to make primary education a free and compulsory right for all children of the relevant age groups, and which is also the objective of the State's Sarva Shiksha Abhiyan. The details should also be furnished about the number of children who are out of schools either because they were not registered at all or because they have dropped out. Apart from government data on the question aid in this regard could also be taken by looking at the significant survey conducted by the reputed social organisation (Pratham) in its "Annual Status of Education Report (Rural) ASER for the year 2006 and other important surveys by reputed national or international bodies.
The Secretary, Women and Child Development may mention the steps taken for safeguarding the interests of children as were mentioned by the Union Ministry of Woman and Child Development and which were incorporated in our earlier order dated 12.2.2007 especially in regard to sensitisation of the police on gender and child related issues and also for making the society aware about criminal activities against children, taking measures for strengthening community and family bonds for which police station could set up neighbourhood watch systems and making local bodies, such as panchayat raj institution and municipal corporation more proactive for better protection of the children. The provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, deal both with the child in conflict with law and child in need of care and protection and what steps can be taken for strengthening the laws and offering protection to children and more stringent punishment against traffickers. The Child Labour (Prohibition and Regulation) Act, 1986 lists the various categories of employment where Child Labour is prohibited or regulated.
The Constitutional provisions dealing with child rights and concerns have been summarized in paragraph 2 of the recent Apex Court decision in R.D. Upadhyaya v. State of Andhra Pradesh, AIR 2006 SC 1946 as under:
"For the care, welfare and development of the children, special and specific provisions have been made both in Part III and IV of the Constitution of India, besides other provisions in these parts which are also significant. The best interest of the child has been regarded as a primary consideration in our Constitution. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 15(3) provides that this shall not prevent the State from making any special provision for women and children. Article 21A inserted by 86th Constitutional Amendment provides for free and compulsory education to all children of the age of six to fourteen years. Article 24 prohibits employment of children below the age of fourteen years in any factory or mine or engagement in other hazardous employment. The other provisions of Part III that may be noted are Articles 14, 21 and 23. Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 23 prohibits trafficking in human beings and forced labour. We may also note some provisions of Part IV of the Constitution. Article 39(e) directs the State to ensure that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 39(f) directs the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 42 provides that the State shall make provision for securing just and humane conditions of work and maternity relief. Article 45 stipulates that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Article 46 provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Article 47 provides that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health."
We have quoted the above paragraph to show that a comprehensive strategy needs to be evolved to tackle the problem of the missing child. Steps by the police to rescue the missing child, and action in criminal law against the trafficker/ abductor is certainly one of the main areas for action, but to comprehensively tackle the problem in its totality, the root issues, about the child not going to school or being neglected by his parents and guardians, sensitization of the community, local bodies and the police to child and gender related issues are all needed, and we would welcome creative suggestions from all the authorities concerned on all these planks. Our effort, right from the beginning when we started monitoring the efforts to trace out the missing child has to bring the State and Central government authorities together on one platform. It is in furtherance of the same objective that we are also trying to bring together and to engage the Principal Secretary (Education), the Secretary (Child and Women's) department, the Principal Secretary (Labour), U.P. and other concerned authorities and even concerned civil society groups, so that we may jointly endeavour to tackle these most imperative concerns relating to the well being of our child who is the future of our nation.
We also suggest that identity cards may be prepared which should contain photographs of the children when they are given free pre-primary schooling, nutritional and other benefits under the ICDS and Anganvadi schemes for children, who are not yet enrolled in regular schools and also a system of identity cards containing photographs could be mandated for children going to school which could be updated every three years with new photographs. These apart from helping to maintain good records of the children and for verification by authorities whether they are actually attending the school where they are enrolled, the identity card with the child's photograph could also be very useful for the police for tracing out a child in case he goes missing, and the same could also be placed on the relevant website (after it is established), in news papers and shown on television for tracing out the missing child. The Secretaries concerned may give their suggestions on the desirability and feasibility of preparing such identity cards containing the photographs of the school going children also on the next date of listing.
List this case now for further orders/hearing and for submission of compliance reports as above mentioned on 18.09.2007
Let a copy of this order be given to the learned counsel for the parties concerned within ten days.
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