Full Judgment
-1- IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 29TH DAY OF NOVEMBER, 2024 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO.201693 OF 2024 (GM-POLICE) BETWEEN: PHOENIX S/O SHARANAPPA HANDIGANUR AGE: 40 YEARS, OCC: PETTY BUSINESS R/O MALLI VILLAGE TQ: JEWARGI PRESENTLY RENT AT SAROJAMMA BEHIND AKKA TANGI TEMPLE GDA COLONY KAVERI NAGAR KALABURAGI - 585 103. …PETITIONER (BY SRI. GURURAJ V HASILKAR, ADVOCATE) AND:
1. THE STATE OF KARNATAKA
BY PRINCIPAL SECRETARY GOVT. OF KARNATAKA Digitally VIDHANA SOUDHA signed by LUCYGRACE BANGALORE-560 001. Location: High 2. THE COMMISSIONER OF POLICE Court Of Karnataka KALABURAGI CITY DIST KALABURAGI-585 102.
3. STATION HOUSE OFFICER CHOWK POLICE STATION KALABURAGI NORTH SUB-DIVISION REPRESENTED BY ITS SHO KALABURAGI-585 102. …RESPONDENTS (BY SMT. MAYA T.R, HCGP FOR R1 TO R3) -2- THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF MANDAMUS AND DIRECT THE RESPONDENTS TO INVESTIGATE UNDER THE KINDNAP AND MISSING OF THE MINOR BOY IN CRIME NO.85/2024 OF CHOWK P.S. KALABURAGI FOR THE OFFENCE UNDER SECTION 363 OF IPC AND ISSUE DIRECTION TO FIND OUT THE MISSING BOY AS PER ANNEXURE A AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
(PER: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR) In this petition, petitioner seeks the following reliefs: “(a) Issue writ in the nature of mandamus and direct the respondent’s to investigate under the kidnap and missing of the minor boy in Crime No.85/2024 of Chowk P.S. Kalaburagi for offence U/Sec. 363 of IPC and issue direction to find out the missing boy as per Annexure-A.
(b) Issue the direction to pay the cost of Rs.1,00,000/- for causing harassment and mental torture and for i\negligent act from the respondents authorities.
(c) Issue any other directions as this Hon’ble Court deems fit under facts and circumstances of the case.” -3-
2. Heard learned counsel for the petitioner and learned HCGP for the respondents and perused the material on record.
3. It is the grievance of the petitioner that his son -
Master Vinayak, minor aged about 17 years went missing on 22.05.2024 and an FIR in Crime No.85/2024 was registered before the Chowk Police Station, Kalaburagi. Learned counsel for the petitioner submits that even till today, respondents have not traced his missing son and in the light of the judgment of the Apex Court in the case of Bachpan Bachao Andolan Vs. Union of India -
(2014) 16 SCC 616 necessary directions may be issued to forward the matter to the Anti-Human Trafficking Unit and to take further steps in terms of the said order.
4. Per contra, learned HCGP for the respondents has
filed latest status report indicating that investigation regarding missing child is still going on and the missing child of the petitioner has not yet been traced even till today.
5. In the case of Bachpan Bachao Andolan, Apex Court has held as under:
1. This matter has been listed pursuant to the direction [Bachpan Bachao Andolan v. Neeraj Kumar, Contempt -4-
Petition (C) No. 186 of 2013, order dated 26-4-2013 (SC), wherein it was directed: “On mentioning, let this matter be taken on Board and let the contempt petition filed in the writ petition, be listed for consideration on Monday (29-4-2013).”] given on 26-4-2013, when the contempt petition filed in the writ petition by the petitioner, complaining of the manner in which a complaint made regarding a missing child was sought to be handled by the police station concerned, was being considered. It has also come up on account of the other directions which had been given for implementing the various provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended in 2006 (“the Juvenile Act”, for short).
2. On 17-1-2013, when this matter came up for
consideration, we had given an interim direction [Bachpan Bachao Andolan v. Union of India, (2014) 16 SCC 612] that in case a complaint with regard to any missing children was made in a police station, the same should be reduced into a first information report and appropriate steps should be taken to see that follow up investigation was taken up immediately thereafter.
3. An element of doubt has been raised on behalf of the
State of Madhya Pradesh regarding the recording of first information report relating to a missing child, having regard to the provisions of Section 154 of the Code of Criminal Procedure, 1973 (“Cr PC”, for short), which relates to information in cognizable cases. We do not, however, see any difficulty in the orders, which we have already passed. We make it clear that, in case of every missing child
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reported, there will be an initial presumption of either abduction or trafficking, unless, in the investigation, the same is proved otherwise. Accordingly, whenever any complaint is filed before the police authorities regarding a missing child, the same must be entertained under Section 154 Cr PC. However, even in respect of complaints made otherwise with regard to a child, which may come within the scope of Section 155 Cr PC, upon making an entry in the book to be maintained for the purposes of Section 155 Cr PC, and after referring the information to the Magistrate concerned, continue with the inquiry into the complaint. The Magistrate, upon receipt of the information recorded under Section 155 Cr PC, shall proceed, in the meantime, to take appropriate action under sub-section (2), especially, if the complaint relates to a child and, in particular, a girl child.
4. On the last occasion, when the matter was taken up,
we were informed by some of the States that the directions, which we had given in our order dated 17-1-2013 [Bachpan Bachao Andolan v. Union of India, (2014) 16 SCC 612] , had been duly implemented and affidavits to that effect have also been filed. Some of the information given therein is seriously objected by Mr H.S. Phoolka, learned counsel appearing for the petitioner. In any event, even if the figures shown are incorrect, in order to rectify the situation, we are inclined to accept the suggestion made by Ms Shobha, learned
advocate, appearing for the National Human Rights Commission, that each police station should have, at least, one Police Officer, especially instructed and trained and designated as a Juvenile Welfare Officer in terms of Section 63 of the Juvenile Act. -6-
5. We are also inclined to accept the suggestion that
there should be, in shifts, a Special Juvenile Officer on duty in the police station to ensure that the directions contained in this order are duly implemented. To add a further safeguard, we also direct the National Legal Services Authority, which is being represented by its Member-Secretary through Ms Anitha Shenoy, learned advocate, that the para-legal volunteers, who have been recruited by the Legal Services Authorities, should be utilised, so that there is, at least, one para-legal volunteer, in shifts, in the police station to keep a watch over the manner in which the complaints regarding missing children and other offences against children, are dealt with.
6. Ms Shobha, learned counsel, has also made another
useful suggestion regarding a computerised programme, which would create a network between the Central Child Protection Unit as the Head of the Organisation and all State Child Protection Units, District Child Protection Units, City Child Protection Units, Block Level Child Protection Units, all Special Juvenile Police Units, all police stations, all Juvenile Justice Boards and all Child Welfare Committees. The said suggestion should be seriously taken up and explored by the National Legal Services Authority with the Ministry of Women and Child Development. Once introduced, the website link should also be made known to the public at large. The State Legal Services Authorities should also work out a network of NGOs, whose services could also be availed of at all levels for the purpose of tracing and re-integrating missing children with their families which, in fact, should be the prime object, when a missing child is recovered.
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7. Various other suggestions have been made by Ms Shobha in her written submission, regarding installation of computerised cameras, which can also be considered by all the authorities concerned.
8. A similar response has been made on behalf of the
National Legal Services Authority, and similar suggestions have been made. The details, as indicated in the response, can always be worked out in phases by the Juvenile Justice Boards and the Child Welfare Committees in consultation with the National Legal Services Authority, since each has a responsible role to play in the welfare of children, which, if the statistics given are to be believed, are difficult to accept. In fact, as has been pointed out by Mr Phoolka, out of more than 3000 children missing in 2011, only 517 first information reports had been lodged. The remaining children remain untraced and are mere slips of paper in the police stations.
9. One of the submissions, which has been made in the
response filed by NALSA, is with regard to the role of the police and the directions given by this Court, from time to time, in Sampurna Behura v. Union of India [Sampurna Behura v. Union of India, WP (C) No. 473 of 2005. The reference may be made to Sampurna Behura v. Union of India, (2011) 9 SCC 801 : (2011) 3 SCC (Cri) 916 and Sampurna Behrua v. Union of India, (2011) 15 SCC 232 : (2012) 4 SCC (Cri) 580.] . Accordingly, in addition to what has been recorded, as far as the suggestions made on behalf of the National Human Rights Commission is concerned, we add that, as suggested on behalf of NALSA,
every found/recovered child must be immediately -8-
photographed by the police for purposes of advertisement and to make people aware of the missing child. Photographs of the recovered child should be published on the website and through the newspapers and even on the TV so that the parents of the missing child could locate their missing child and recover him or her from the custody of the police. The Ministry of Home Affairs shall provide whatever additional support by way of costs that may be necessary for the purpose of installing such photographic material and equipment in the police stations. Apart from the above, all the parties involved shall have due regard to the various
directions given in Sampurna Behura case [Sampurna Behura v. Union of India, WP (C) No. 473 of 2005. The reference may be made to Sampurna Behura v. Union of India, (2011) 9 SCC 801 : (2011) 3 SCC (Cri) 916 and Sampurna Behrua v. Union of India, (2011) 15 SCC 232 : (2012) 4 SCC (Cri) 580.] where also provision has been made for a child to be sent to a home and for taking photographs and publishing the same so that recovery could be effected as early as possible.
10. The other suggestion of NALSA is that a Standard
Operating Procedure must be developed to handle the cases of missing children and to invoke appropriate provisions of law where trafficking, child labour, abduction, exploitation and similar issues are disclosed during investigation or after the recovery of the child, when the information suggests the commission of such offences. As part of the Standard Operating Procedure, a protocol should be established by the local police with the High Courts and also with the State Legal Services Authorities for monitoring the case of a
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missing child. In Delhi, such a protocol could be established with the help of the All India Legal Aid Cell on Child Rights, set up by NALSA, in association with the Delhi State Legal Services Authority, and the petitioner herein, Bachpan Bachao Andolan. In fact, the same could be treated as a nodal agency of the All India Legal Aid Cell on Child Rights.
11. We have given directions in regard to the utilisation of the para-legal volunteers, which is one of the suggestions made on behalf of NALSA.
12. As has been pointed out by Mr Phoolka, learned
counsel appearing on behalf of the petitioner, an Office Memorandum was issued on 31-1-2012, by the Ministry of Home Affairs, Government of India, by way of an advisory on missing children and the measures needed to prevent trafficking and for tracing of such children. In the said office memorandum, a missing child has been defined as a person below eighteen years of age, whose whereabouts are not known to the parents, legal guardians and any other person, who may be legally entrusted with the custody of the child,
whatever may be the circumstances/causes of disappearance. The child will be considered missing and in need of care and protection within the meaning of the latter part of the Juvenile Act, until located and/or his/her safety/well being is established.
13. In case a missing child is not recovered within four
months from the date of filing of the first information report, the matter may be forwarded to the Anti-Human Trafficking Unit in each State in order to enable the said Unit to take up more intensive investigation regarding the missing child. The - 10 -
Anti-Human Trafficking Unit shall file periodical status reports after every three months to keep the Legal Services Authorities updated. It may also be noted that, in cases where first information reports have not been lodged at all and the child is still missing, an FIR should be lodged within a month from the date of communication of this order and further investigation may proceed on that basis. Once a child is recovered, the police authorities shall carry out further investigation to see whether there is an involvement of any trafficking in the procedure by which the child went missing and if, on investigation, such links are found, the police shall take appropriate action thereupon.
14. The State authorities shall arrange for adequate
shelter homes to be provided for missing children, who are recovered and do not have any place to go to. Such shelter homes or after-care homes will have to be set up by the State Government concerned and funds to run the same will also have to be provided by the State Government together with proper infrastructure. Such homes should be put in place within three months, at the latest. Any private home, being run for the purpose of sheltering children, shall not be entitled to receive a child, unless forwarded by the Child Welfare Committee and unless they comply with all the provisions of the Juvenile Justice Act, including registration.
15. Having regard to the order passed herein, the contempt proceedings, which have been initiated by the petitioner, are dropped. - 11 -
16. In the event, all the States have not yet filed their status reports, the time for filing the same is extended till the next date.
17. We appreciate the efforts of the petitioner
organisation, Mr H.S. Phoolka, learned counsel appearing on behalf of the petitioner, all the other counsel, who have appeared in this matter on behalf of the different authorities, including NALSA and the National Human Rights Commission, and we hope that such interest will continue to subsist hereafter.
18. Let this matter be listed again after three months.
6. In view of the aforesaid facts and circumstances and
undisputed fact that the son of the petitioner is alleged to have been missing from 22.05.2024 and FIR in Crime No.85/2024 was registered as long back as on 29.05.2024 coupled with the latest status report submitted by learned HCGP to the effect that the missing son of the petitioner has still not been traced and in the light of the judgment of the Apex Court in Bachpan Bachao Andolan’s case supra, I deem it just and appropriate to dispose of this petition directing the respondents to forward the FIR to the the jurisdictional officer of the Anti-Human Trafficking Unit, Kalaburagi, within a period of two weeks from the date of receipt of a copy of this order. Immediately upon the FIR being received by the - 12 - aforesaid jurisdictional officer of the Anti-Human Trafficking Unit, Kalaburagi, the said authority shall proceed further in accordance with law and conclude the proceedings within a period of three months from the date of receipt of a copy of FIR from the respondents. It is further submitted that respondent No.2 as well as the jurisdictional Officer of the Anti-Human Trafficking Unit, Kalaburagi would submit a report to the Karnataka State Legal Services Authority periodically.
7. Subject to the aforesaid observations and directions, the petition stands disposed of. Sd/- (S.R.KRISHNA KUMAR) JUDGE SV List No.: 1 Sl No.: 21