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VISHNU DAYAL SHARMA versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Vishnu Dayal Sharma v. State Of U.P. & Others - CRIMINAL MISC. WRIT PETITION No. 15630 of 2006 [2007] RD-AH 2323 (12 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                         

(Court No. 9)

Crl. Misc. writ Petition No. 15630    of 2006

Vishnu Dayal Sharma Vs. State of U.P. and others

........................

Hon'ble Amar Saran, J.

Hon'ble R.N. Misra, J.

We have heard learned counsel for the petitioner Sri Sukhendu Pal, learned Government Advocate for the State of U.P., Sri V.S. Mishra, the learned Addl. Solicitor General, Dr. Ashok Nigam and learned Assistant Solicitor General, Sri K.C. Sinha for the Union of India, as also Sri D.K. Singh, JR (Litigation), High Court, Allahabad.

A counter affidavit dated 3.2.07has been filed by Dr. Vinod Kumar Payal, SHO, P.S. Jagdishpura, Agra who mentions that the earlier gumshudagi report of the disappearance of the petitioner Vishnu Dayal Sharma's son Krishna Gopal Rajoria since 22.2.05, has been converted into a case u/s 364 IPC, Case Crime No. 9/ 2007 on 5.1.07 and he is investigating the case. Two accused have been named and sent to jail. However he requires a month's further time to complete the investigation and to trace the missing boy. A counter affidavit dated 5.2.07 has also been filed by Dr. Anil Misra, S.P. (Legal Cell), DGP Headquarters, Lucknow. It contains a detailed circular dated 10.1.2007 issued by the Director General of Police (DGP), in conformity with our order dated 2.1.2007 and also the report of the missing children, disaggregated districtwise as to age and gender who have been missing from 1.1.2006 to 31.12.2006.

DGP's circular dated 10.1.2007

The DGP's circular dated 10.1.2007 extracts paragraph 176 of the Police Regulations which provides that when the disappearance of any boy under 14 years of age or a girl under 16 years of age is reported and the circumstances suggest an offence of kidnapping, the officer-in-charge of the police station should inform the neighbouring police stations and forward to the superintendent a descriptive role of the minor, together with any information as to the direction the child may have gone and a descriptive role of any person suspected of having taken away the child. The superintendent should then take any suitable action for the recovery of the minor. The village policemen are to report on disappearance of any minor or arrival of any unknown minor in their areas.

Apart from delineating the aforesaid provision the DGP's circular paraphrases all the directions in our previous order dated 2.1.2007 and issues operational directions on all the points. Thus it has directed :

1. The district level officers viz. SSP, SP in-charge of the district and SP (Railways) of all districts to ensure that station officers of various police stations must forthwith register reports of missing children and not make excuses for not investigating into the matters and start investigations in right earnest by visiting the place of disappearance of the child and taking all measures needed for recovery of the missing child and for punishing the abductor.

2. The aid of radio, television and press media should be sought for publicizing information of the missing child and contact phone numbers of the police and the informant, if any, may be mentioned in the notice. In pursuance of the  aforesaid direction the DGP has directed all the aforesaid district level officers to enter the records of missing children in a separate register, to get the same investigated and to take steps for publicity of the same as mentioned in our order dated 2.1.07.

3. So far as the third direction in our order dated 2.1.2007 that in case of failure of the local police to take action or to register an FIR, the aggrieved person should have easy access to the SSP/SP/CO who should see that the serious action is taken on such complaints, notice boards should be put up and Public Relation Officer posted at the offices of SSP, SP and CO and in each police station for noting down the complaint of the aggrieved person and for recovering the missing child. The concerned officers should be instructed to be  especially sensitive and accessible to the resourceless poor and marginalized, rather than the politically well connected or the rich who have slightly better access to justice. In pusuance of this direction the DGP has instructed the concerned gazetted officers to also perform the functions of the PRO mentioned in our order and the SP/SSP in-charge of the districts and Railways are to issue clear directives in the matter to subordinate police stations. In the bigger police stations the SSI has been entrusted with this responsibility. Relevant orders passed by the said officers are to be communicated to the DG (Crimes).

4. In pursuance of our direction to constitute special cells in each district where information about cases of abductions/missing children including particulars of the abducted/ missing child, age, gender, date of abductions/ disappearance of the child, any other particulars and contact location of the information, steps taken for locating the missing/abducted child, action taken against the kidnappers, if it is a case of kidnapping may be collated. Collation of such information could assist in deciding whether the abduction was an individual, isolated act or the work of a local or inter-state gang or the work of a serial offender. The DGP has directed that such cells must be constituted in every district and that the progress report of  all matters shall be reported to the DIG (Region)/ IG (Zone) before the 5th of each month. The DIG/IG (Zone) may send reports along with their comments to the DG (Crimes) Headquarters, Lucknow by the 10th of each month.

5. The DGP has further directed close examination of the High Court's order and compliance with it by the concerned officers in letter and spirit in the matters of missing children at all levels (especially at the police station level) and in case of any laxity the circular warns of stringent action against negligent officers.

Table of Missing children - Annexure 2

The table annexed at Annexure 2 to the affidavit thereafter contains the breakup of the number of missing children between 0-5, 5-10, 10-18 years, information as to gender, cases in which FIRs have been registered, result of the investigation and the number of children who have been recovered alive or reported to be dead or remain to be recovered. The said table relates to the different zones viz. Meerut, Kanpur, Gorakhpur, Varanasi, Lucknow, Allahabad, Bareilly and GRP (Zone). The final figure shows the total number of  children who are said to have gone missing in 2006 to be 3641. Out of them 145 were below five years in age, 488 were between 5-10 years, 3016 were between 10-18 years in age. Out of these, 2751 were males and 898 were females; 162 FIRs were registered; in 74 cases charge-sheets, and in 17 cases final reports were submitted; 71 cases were pending enquiry; 284 children have been recovered; 83 children were reported to be dead and the remaining number of children was 712. However the disaggregated  age and gender break up of the still missing children has not been mentioned in the table.

Direction for legal aid at SSP/SP/CO's offices

So far as the direction no. 4 in our order dated 2.1.2007 that the district judges of all districts may issue directions to the legal aid committees to ensure that lawyers providing legal aid are present at SSP/SP/CO's offices to help such indigent and resourceless persons who approach the said officers. In this connection the Registrar General of the High Court has submitted a compliance report dated 7.2.2007 which mentions that a circular for all district judges has been formulated, which has been directed to be placed before the Hon'ble Administrative Committee of the High Court in its next meeting as per the order of the Hon'ble Senior Judge dated 22.1.2007.

Brief note of the Ministry of Women and Child Development, Government of India

The Additional Solicitor General has produced a copy of a brief note faxed by the Ministry of Women and Child Development in compliance of our order dated 7.2.2007 directing the Assistant Solicitor General to obtain the suggestions from the Central Government regarding the directions, websites, surveys etc. that have been conducted by the Central Government or its bodies and the special measures initiated by the Ministry of Women and Child Development on the issue of missing children. The said note mentions that the Ministry of Women and Child Development has constituted a committee on 3.1.2007 under the chairpersonship of Mrs. Manjula Krishnan, Economic Advisor in the Ministry to investigate into the allegations of large scale sexual abuse, rape and murder of children in Nithari village of NOIDA, who visited the spot and met officials and members of the affected families and examined documents made available by the district officials/police. The committee submitted a report on 17.1.2007 which was sent to all the State Governments/UT administrations for necessary action at their ends. Some of the suggestions were:

· Complaints of missing children needed to be registered and treated as cognizable offence and investigations conducted on priority basis accordingly.

· When police negligence or inaction was revealed exemplary punishment was to be meted out to the guilty officials.

· The daily diary register maintained by the police should be regularly monitored to ensure that the reports of missing children were entered therein and cognizance taken and FIRs filed.

· Tracking of missing children needs to be more effective through web based and intra and inter-state linkages so that the police in any particular State or district of the country could have  data of the missing children in other parts of the country.

· Training and sensitization of gender and child related issues, laws and programmes for police at all levels needs to be developed with regional/State consultations so that the police functionaries become more sincere in handling the cases of missing children.

· The best safeguard of any society may come from within the society by preventing any such criminal activity against the children. Therefore, measures to strengthen the community  and family bonds should be taken on a priority basis for which police stations could set up neighbourhood watch systems and local bodies such as Panchayatraj institutions and municipal corporations need to become more proactive so that the children are better protected.

There were some specific suggestions regarding the investigation of the Nithari crime to which we need not allude here because the said matter is being monitored by another Bench of this Court.

The report further mentions that the Ministry of Women and Child Development is making efforts to combine the existing child protection schemes under one integrated scheme, titled ''Integrated Child Protection Scheme', which could cover so far unaddressed areas for providing care and protection to children in conflict with law and children in need of care and protection. An Offences Against Children (Prevention) Bill was also on the anvil for providing suitable arrangements for offences against children such as sexual assault, unlawful sexual conduct, non-contact based sexual offence with a child, offences relating to trafficking, selling and buying of a child, using a child under the age of 14 years for employment/labour and domestic help, using the child for begging, cruelty to a child, corporal punishments, ragging, intimidation, intoxicating a child, kidnapping, abduction and wrongful detention, using a child for pornography, abetting and involving children in armed conflict. A Commission for Protection of Child Rights Act, 2005, has also been notified in the Gazette of India on 20.1.2006 which aims at constituting national and state level commissions for proper enforcement of children's rights and effective implementation of laws and programmes relating to children.

The ministry is also processing amendments to the Immoral Traffic (Prevention) Act, 1956 for widening the definition of trafficking to include all acts of kidnapping, duping, luring, abduction etc. of children or women as  crimes and for providing more stringent punishment for traffickers. The Ministry for Women and Child Development has been holding consultations with the Ministry of Home Affairs, National Human Rights Commission and National Commission for Women for formulating a holistic plan of action which could include acts of slavery, organ sale, child labour etc. in the purview of trafficking.

Nation wide missing children's Website

The Ministry of Women and Child Development according to the Note in collaboration with UNICEF is also in the process of setting up a nation-wide missing children website which would help provide information regarding missing children all over the country by matching suitable characteristics of the missing child with those provided by the parents/guardians looking for him/her. The work relating to the website has been initiated in the State of West Bengal and it will be extended from there to other states. The discussion in the matter have also been initiated with the National Informatics (NIC) and organizations working on websites for missing children.

Suggestions in Secretary, Women and Child Development's letter dated 9.1.07 to Chief Secetaries and Administrators of Uts

The Secretary, Women and Child Development, has also written a letter dated 9.1.2007 to all the states' chief secretaries/administrators of Union Territories suggesting:

(1) That there is immediate need for  measures for ensuring the safety and protection of children, especially for vulnerable communities and areas. It has also been pointed out that a large number of complaints of missing children are not always registered at the police stations nor any action is taken to trace them out.

(2) The State Governments have been directed to issue instructions to the police so that they register every complaint of a missing child and accordingly conduct the investigations and take follow-up action to recover the child.

(3) The district wise data of missing children and those located/reintegrated should be scrupulously maintained. The Ministry of Women and Child Development is also keen to build a national data base on missing  children so as to study patterns, trends and causes relating to missing children which will help them in formulating appropriate policy and programmatic interventions. The States/Union Territories have been requested to send districtwise gender and age disaggregated details of the missing children in their state as per records available for the last five years.

We note that the aforesaid three directions are akin to some of the directions issued in our earlier order dated 2.1.2007.

DIRECTIONS BY THIS ORDER

1. The DGP, U.P., is directed to provide by the next date of listing the disaggregated districtwise gender and age details of 712 children who are still claimed to be missing as per annexure 2 in  the counter affidavit filed on behalf of the DGP.

2. The DGP, UP, is further directed to file the disaggregated districtwise gender and age details of the still missing children in the State of U.P. as per the records available for the last five years.

3. The DGP is further directed to provide progress reports on the various directions issued at sl. Nos. 1 to 5 of his circular dated 10.1.2007 aforementioned on the next date of listing.

4. The Secretary, Ministry of Women and Child Development, Government of India, New Delhi, is directed to take all steps to expeditiously set up all-India website and to inform this Court by the next date of listing whether the said nationwide website has been set up or by which date the same shall become operational.

5. The State of U.P. is directed to set up a similar website in the State on the lines suggested by the Ministry of Women and Child Development in their brief note mentioned above. The said website could contain information of the missing child, contact address of his parents, date from which he is missing, his/her age, gender, date of registration of FIRs, if any, whether the child has been recovered or reported to be dead or is still missing in a tabular form, (in addition to any other form for publicizing this information on the website that the concerned department may consider appropriate). It may also contain a column mentioning the status of progress of investigation/recovery of the child, and the photographs of the still missing child should also be shown in the website either directly in the table or by means of a hyper link. Details of a recovered child could be excluded so that the table may not  become too bulky. Efforts should be made to link the said State website with the nationwide website being set up by the Ministry of Women and Child Development in colloboration of UNICEF etc.

6. In addition to our earlier direction to the district judges to provide legal aid lawyers at the S.S.P./S.P/C.O. levels, as special cells for missing children are to be constituted in each district as per the DGP's circular dated 10.1.2007, it is directed that legal aid lawyers may be provided at the aforesaid special cells. The district judges should monitor or get monitored the quality of legal aid being provided by the duly appointed lawyers and their regularity in attending the said offices. The districts judges concerned may also apprise this Court of any difficulty that they may face in implementing this direction for providing legal aid. They may also suggest other areas of social concern for providing legal aid to the unserved, resourceless persons needing legal aid so that this Court may co-ordinate this activity and issue appropriate directions wherever possible.

7. We direct that the monthly report of the special cell and the DIG (Region) and I.G. (Zone) about missing children be placed before the district level monitoring committee comprising the District judge, D.M., SSP etc. in its monthly meeting for effective co-ordination with the district judiciary and for appropriate directions. The Registry may take early action on directions (6) and (7).  

8. Let notice be issued to the Director General, Prasar Bharti, New Delhi, who may inform this Court on the next date of listing as to whether photographs of the missing children are currently being telecast on Doordarshan or any other TV channel and the time and period of telecast. In case the said telecasts are not being done, what measures are proposed for initiate telecast of the said photographs and information at the earliest.

9. The Central and State governments may also consider interacting with some private T.V. channels who may be sympathetic to the cause for getting photographs of missing children telecast on their channels.

10. The SHO, P.S Jagdishpura I.O. investigating Case Crime No. 9 of 2007 u/s 364 IPC regarding the disappearance of the petitioner's son Krishna Gopal, shall submit his progress report regarding investigation / efforts to trace out the missing boy by the next date of listing.

Before parting, we would like to record our appreciation of the DGP, Sri Bua Singh, for issuing the prompt and detailed  circular dated in 10.1.2007 complying with our order dated 2.1.2007 in letter and spirit. Now the implementation of the aforesaid circular by the authorities concerned has to be carefully monitored.  

We also need to commend the immediate steps taken by the Assistant Solicitor General of India, Sri K. C. Sinha and Additional Solicitor General, Dr. Ashok Nigam, to obtain the information about the directions, websites, surveys and suggestions of the Central Government, especially the Ministry of Women and Child Development in pursuance of our order dated 7.2.2007 and the excellent note prepared by the Ministry of Women and Child Development which has been placed before us today and described in detail hereinabove. Our effort has been to ensure coordination among  the  State Government, Central Government, the judiciary, the media and the Registry of this Court for monitoring this very poignant issue regarding disappearance of children, especially those belonging to the weaker  classes who have no voice. It is very heartening to note that our directions and orders have been taken in a proper non-adversarial and collaborative spirit and all the aforesaid authorities and officers of this Court have come forward whole-heartedly to lend support in this laudable endeavour and it is hoped that the joint efforts will bear some fruit.

List this case on 15.3.2007 on which date the authorities and officers mentioned hereinabove shall submit their progress and other reports, as directed hereinabove. Copy of this order may be furnished to the parties concerned within a week.

Dated: 12.2.2007/sks.            

AS-128/.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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