REPORTABLE
| IN THE SUPREME COURT OF INDIA | | |
|---|
| CIVIL APPELLATE JURISDICTION | |
| CIVIL APPEAL NO. 7968 OF 2019 | |
|---|
| (@SPECIAL LEAVE PETITION (CIVIL) NO. 34251 OF 2017) | | |
| NATIONAL COMMISSION | | | | | | | | |
|---|
| FOR PROTECTION OF CHILD | | | | | | | | |
| RIGHTS & ORS. | | | | | | | | …APPELLANT(S) |
Versus
| DR. RAJESH KUMAR & ORS. | | | | …RESPONDENT(S) |
|---|
J U D G M E N T
Deepak Gupta, J.
1. It’s so sad! We start with a lament because institutions set
up to protect children have virtually forsaken them in a fight over
their so called jurisdictions.
2. India is a signatory to the United Nations Convention on the
Rights of the Child, 1989 which makes it obligatory upon the
1
signatory States to take all necessary steps to protect the rights
of the children as set out in the Convention. The Government of
India enacted the Juvenile Justice (Care and Protection of
Children) Act, 2000. This was repealed by the Juvenile Justice
(Care and Protection of Children) Act, 2015 (hereinafter referred
to as ‘the JJ Act’).
3. It was felt expedient to enact a law constituting special
commissions to protect the rights of children. Parliament
enacted the Commissions for Protection of Child Rights Act, 2005
(hereinafter referred to as ‘the CPCR Act’). The CPCR Act
envisages the constitution of a National Commission for
Protection of Child Rights (hereinafter referred to as
‘NCPCR/National Commission’) under Section 3 and the State
Commissions for Protection of Child Rights (hereinafter referred
to as ‘State Commissions’) under Section 17. We shall deal with
their respective functions and powers at a later stage but there
can be no manner of doubt that these two Commissions – one at
the National level and the other at the State level – are expected
to function in a spirit of cooperation. We expect such
Commissions to consult, discuss and cooperate with each other
2
while exercising their powers and fulfilling the duties enjoined
upon them by the CPCR Act. These two institutions are in the
nature of siblings. The goal which they both set out to achieve is
the same, viz., protecting children from all sorts of abuse,
exploitation etc. We see no reason why there should be any
disharmony and lack of coordination between these two
institutions. This noncooperation and lack of coordination can
only occur when the persons manning the institutions put their
own interests over the interest of the children. It is only when
those incharge of such commissions give themselves so much
importance that they forget that they are the creation of statute,
the only purpose of which is to protect children.
4. This case is a classic example where in the fight between
the State Commission and the National Commission the children
have been, all but forgotten. We are sorry that this Court has to
spend its time resolving such disputes. This Court as well as the
two major parties litigating before us definitely have better things
to do.
5. From the material on record, it appears that news reports
were published some time in February, 2017 indicating that a
3
childcare institution based in Jalpaiguri in West Bengal had
indulged in large scale trafficking of children. The NCPCR took
cognizance of these reports on 03.03.2017 and two members of
the NCPCR went to Jalpaiguri on 07.03.2017. They requested
the State officials to provide them some information which,
according to the NCPCR, was not provided. They finally
summoned the Additional Director General of Police (ADGP),
Criminal Investigation Department (CID), West Bengal
(Respondent no.1 herein) to appear before the NCPCR. This
gentleman, instead of appearing before the NCPCR, chose to file a
writ petition challenging the jurisdiction of the NCPCR to
summon him. The High Court, by the impugned order dated
29.08.2017, stayed the direction of the NCPCR mainly on the
ground that since the State Commission had taken cognizance of
the matter on 24.02.2017, the NCPCR had prima facie no
jurisdiction.
6. Section 13 of the CPCR Act deals with the functions and
powers of the National Commission. Section 24 of the CPCR Act
vests the same functions and powers in the State Commissions.
Section 13 of the CPCR Act therefore defines the functions and
4
powers of both the NCPCR and the State Commissions. It reads
as follows :
“13. Functions of Commission. (1) The Commission shall
perform all or any of the following functions, namely:
(a) examine and review the safeguards provided by or under
any law for the time being in force for the protection of child
rights and recommend measures for their effective
implementation;
(b) present to the Central Government, annually and at such
other intervals, as the Commission may deem fit, reports upon
the working of those safeguards;
(c) inquire into violation of child rights and recommend
initiation of proceedings in such cases;
(d) examine all factors that inhibit the enjoyment of rights of
children affected by terrorism, communal violence, riots,
natural disaster, domestic violence, HIV/AIDS, trafficking,
maltreatment, torture and exploitation, pornography and
prostitution and recommend appropriate remedial measures;
(e) look into the matters relating to children in need of
special care and protection including children in distress,
marginalized and disadvantaged children, children in conflict
with law, juveniles, children without family and children of
prisoners and recommend appropriate remedial measures;
(f) study treaties and other international instruments and
undertake periodical review of existing policies, programmes
and other activities on child rights and make
recommendations for their effective implementation in the best
interest of children;
(g) undertake and promote research in the field of child
rights;
(h) spread child rights literacy among various sections of the
society and promote awareness of the safeguards available for
protection of these rights through publications, the media,
seminars and other available means;
(i) inspect or cause to be inspected any juvenile custodial
home, or any other place of residence or institution meant for
children, under the control of the Central Government or any
5
State Government or any other authority, including any
institution run by a social organisation; where children are
detained or lodged for the purpose of treatment, reformation or
protection and take up with these authorities for remedial
action, if found necessary;
(j) inquire into complaints and take suo motu notice of
matters relating to,
(i) deprivation and violation of child rights;
(ii) nonimplementation of laws providing for
protection and development of children;
(iii) noncompliance of policy decisions, guidelines or
instructions aimed at mitigating hardships to and
ensuring welfare of the children and to provide
relief to such children,
or take up the issues arising out of such matters with
appropriate authorities; and
(k) such other functions as it may consider necessary for the
promotion of child rights and any other matter incidental to
the above functions.
(2) The Commission shall not inquire into any matter which is
pending before a State Commission or any other Commission duly
constituted under any law for the time being in force.”
7. A perusal of Section 13 makes it amply clear that the
National Commission and the State Commissions have been
clothed with identical powers and functions. The Commissions
have been constituted with a view to not only protect the rights of
children but also to suggest ways and means of enhancing the
rights of children and ensuring that laws made for the protection
of children are effectively implemented. These commissions
exercise extremely important powers. They must function only
6
for the protection and betterment of children. These
commissions cannot become sources of power, self
aggrandisement or means of obtaining the trappings of power like
official cars, bungalows etc. The people who are appointed to
such commissions must in a true sense be friends of the
children, willing to spend their time and energy to help children
rather than pushing their own personal or political interest.
8. Amongst many others, the main functions and powers which
a commission is required to perform are examining and reviewing
the legal provisions enacted for protection of children so that they
are effectively implemented; inquire into cases of violation of
rights of children and recommend the initiation of proceedings in
such cases; examining the factors which inhibit the enjoyment of
rights by children in circumstances mentioned in Section 13(d)
and recommend remedial measures; taking a deeper look into
matters relating to children in need of care and protection,
children in distress, children belonging to marginalised and
disadvantaged sections, children in conflict of law, children
without family or children of prisoners; to study various
international instruments, treaties and policies, undertake
7
research in the field of child rights, spread awareness about child
rights; increase child literacy etc. Section 13(1)(i) empowers the
commission to itself inspect or cause to be inspected any juvenile
custodial home or any other place of residence or institution
meant for children whether such institution is run by the State
Government or the Central Government or any other authority
and includes institutions run by social organisations which, in
our opinion, would include NGOs also. The Commissions can
take up all other necessary functions and are required to present
to the Central Government/State Government, as the case may
be, reports in these regards.
9. In the present case, we are mainly concerned with the
functions of the Commission referred to in clause (j) of sub
section (1) of Section 13 of the CPCR Act, which empowers the
commissions to inquire into complaints or even take suo motu
notice of matters relating to deprivation and violation of child
rights, nonimplementation of laws providing for protection and
development of children, noncompliance of policies and
guidelines framed for the purpose of ameliorating and protecting
the conditions of children etc. There can be no manner of doubt
8
that giving children in adoption without following the prescribed
procedure or guidelines would definitely be a matter which could
be inquired into both by the NCPCR or the State Commission.
10. We are, in this case, mainly concerned with Section 13(2) of
the CPCR Act, which states that the National Commission shall
not inquire into any matter which is pending before a State
Commission or any other Commission duly constituted under
any law for the time being in force.
11. The following three questions arise for decision in this case:
(i) Whether the matter in hand was pending before the
West Bengal Commission for Protection of Child
Rights before the NCPCR took cognizance on
03.03.2017 and started inquiry on 07.03.2017?
(ii) Whether Section 13 (2) of the CPCR Act places the
two Commissions (the NCPCR and the State
Commissions) in watertight compartments where
they oust the jurisdiction of each other?
(iii) Whether in a case which has interState or
international ramifications the jurisdiction, if any, of
the NCPCR can be ousted?
9
12. We may clarify that we have used the term ‘jurisdiction’
because it has been used by the parties. However, the proper
word should not be ‘jurisdiction’ but the ‘functions and powers’ to
be exercised by the respective Commissions. In our view if we do
not refer to the ‘jurisdictions’ and deal with the ‘functions and
powers’ of the Commissions then matters become much simpler.
There is no ouster of jurisdiction like in the case of courts. The
purpose of Section 13(2) is to ensure that one Commission
carries out the inquiry. The language of the CPCR Act is clear
that if the State Commission or any other Commission
constituted under law has started an inquiry under Section 14
then the National Commission should stay its hands in the
matter. Both the Commissions have similar powers and
functions. The jurisdiction of the State Commissions is limited to
the State for which such Commission is constituted whereas the
National Commission has jurisdiction all over the country and
can inquire into any matter in any State. We have no doubt in
our mind that both the Commissions are expected to function in
a spirit of comity and in concert with each other and not as
adversaries. The main issue which arises in this case is whether
the West Bengal Commission for Protection of Child Rights
10
(WBCPCR) had actually started the inquiry into the matter before
the NCPCR started its inquiry.
13. Section 13(1)(c) empowers the State Commissions to inquire
1
into the violation of child rights. In Advanced Law Lexicon the
word ‘inquire’ has been defined as follows:
“ Inquire. To seek knowledge by putting a question; to ask; to
make investigation or inquisition.”
In the context in which the word ‘inquire’ occurs in Section 13(1)
(j), it obviously means something more than just making a
request for information. It envisages the Commission playing an
active role in ascertaining the facts relating to the three
circumstances dealt with in this provision. It is more than just
sending a letter. It is more akin to a preliminary inquiry and if
such inquiry indicates that the rights of the children have been
violated or the laws have not been implemented or the policy
decisions or guidelines have been violated then the Commission
must also suggest remedial measures. This power to inquire
under Section 13(1)(j) will also have to be read with the power
under Section 13(1)(c) which includes the power to inquire into
the violation of child rights and recommend initiation of
rd
1 3 Edition, 2005, P. Ramanatha Aiyar, Pg. 2358
11
proceedings in such cases. Reading these two clauses together it
is obvious to us that ‘inquire’ is not making note on the file but
something more. We are dealing with children who cannot
complain. The Commissions are meant to protect children who
have no voice. It is these Commissions who have to give voice
and feelings to the distress calls of children. The Commission
can, thereafter, take action by itself if permitted under law or can
recommend initiation of proceedings in accordance with law.
14. It would be apposite to refer to Sections 14 and 15 of the
CPCR Act which apply both to the National Commission and the
State Commissions. The same read as follows:
“ (1). The Commission
14. Powers relating to inquiries.
shall, while inquiring into any matter referred to in clause (j) of
subsection (1) of section 13 have all the powers of a civil court
trying a suit under the Code of Civil Procedure, 1908 (5 of
1908) and, in particular, in respect of the following matters,
namely:
(a) summoning and enforcing the attendance of any person
and examining him on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any
court or office; and
(e) issuing commissions for the examination of witnesses or
documents.
(2) The Commission shall have the power to forward any
case to a Magistrate having jurisdiction to try the same and
12
the Magistrate to whom any such case is forwarded shall
proceed to hear the complaint against the accused as if the
case has been forwarded to him under section 346 of the Code
of Criminal Procedure, 1973 (2 of 1974).”
“ The Commission may take any of
15. Steps after inquiry.
the following steps upon the completion of an inquiry held
under this Act, namely:
(i) where the inquiry discloses, the Commission of violation
of child rights of a serious nature or contravention of
provisions of any law for the time being in force, it may
recommend to the concerned Government or authority
the initiation of proceedings for prosecution or such other
action as the Commission may deem fit against the
concerned person or persons;
(ii) approach the Supreme Court or the High Court
concerned for such directions, orders or writs as that
Court may deem necessary;
(iii) recommend to the concerned Government or authority
for the grant of such interim relief to the victim or the
members of his family as the Commission may consider
necessary.”
15. Any Commission, while conducting an inquiry under
Section 13(1)(j) has been given wide powers akin to that of a civil
court and has a right to forward any case to a magistrate and the
magistrate is required to deal with such case forwarded to him as
if the case has been forwarded to him under Section 346 of the
Code of Criminal Procedure, 1973. The follow up action which a
Commission can take is also clearly set out in Section 15 of the
CPCR Act which empowers the Commission to make
recommendations to the concerned Government or authority for
13
initiation of proceedings including prosecution or such other
action as the Commission may deem fit. This is a
recommendatory power but normally we would expect that the
Government would accept the recommendation of the
Commission in this regard. The second power given to the
Commission is to approach the Supreme Court or the High Court
for an appropriate writ, order or direction. The Commission can
also recommend the grant of interim relief to a victim under
Section 15(iii) of the CPCR Act. The aforesaid provisions which
set out the powers relating to inquiries and steps to be taken
thereafter clearly indicate that the inquiry contemplated is more
than only gathering of information, and is more in the nature of
an investigation or inquisition.
16. In the present case, the dispute is who started inquiry first –
whether it was the WBCPCR or the National Commission. As far
as the National Commission is concerned, there is no dispute
that it started its inquiry on 07.03.2017 when its members
visited Jalpaiguri to inquire into the matter. The stand of the
National Commission is that they were, for the first time,
informed on 24.07.2017 that the State Commission has taken
14
cognizance and is inquiring into the matter even though they had
written various letters to the various officials including the
District Magistrate and the police officials in this regard. From
the list of dates filed by the WBCPCR, it appears that on
12.07.2016 the Director, Child Rights and Trafficking, West
Bengal (for short ‘the Director, CRT’) wrote to the District
Magistrate, Jalpaiguri seeking a report on the illegal child
trafficking there. An inquiry team was formed by the District
Magistrate, Jalpaiguri on 09.12.2016 and a report was sent to
the Director, CRT on 11.01.2017. Thereafter, the Director, CRT
passed an order that the Specialised Adoption Agency (for short
‘the SAA’), Jalpaiguri is not functioning as per the provisions of
Adoption Guidelines, 2015 and the JJ Act and 15 children from
the SAA Jalpaiguri, run by the North Bengal Peoples’
Development Centre (for short ‘the NBPDC’) were transferred to
other institutions. On 17.01.2017, the Central Adoption
Resource Authority (for short ‘the CARA’) filed a complaint with
the CID, West Bengal. On 22.01.2017, a report appeared in local
newspaper about this child trafficking racket. On 15.02.2017, a
team was constituted by the CID, West Bengal to investigate the
complaint made by the CARA. On 16.02.2017, a team of CID,
15
West Bengal went to Jalpaiguri. On 17.02.2017, a letter was
allegedly sent by the Chairperson of the WBCPCR to the District
Magistrate, Jalpaiguri, informing that the State Commission had
taken cognizance of the report published in the daily newspaper
on 22.01.2017. On 19.02.2017, a formal First Information
Report (FIR) was registered in the matter. The report dated
11.01.2017, referred to above, was sent to the WBCPCR on
24.02.2017. Thereafter, news items again appeared on
26.02.2017 and two women officials of the concerned adoption
centre were arrested. Admittedly, NCPCR took note of this
instance on 03.03.2017 and on 07.03.2017 two members of the
NCPCR visited Jalpaiguri to conduct an inquiry.
17. We had requested learned counsel appearing for the
WBCPCR to provide the file of WBCPCR in relation to this matter,
which was provided. After going through the file, all that we can
say is that the file is not maintained like an official file. The
papers were kept casually. Except for the noting sheet, the other
papers were not tagged. The other papers were also not
paginated. In such a file, there can be additions and alterations
at any stage. We, therefore, cannot place too much reliance on
16
such a poorly maintained file and direct the WBCPCR to ensure
that in future, files, especially of complaints, are maintained in a
proper manner. According to the documents which form a part
of this file, the WBCPCR took cognizance of the incident
suo motu
on 30.01.2017 on the basis of the newspapers report dated
22.01.2017. It was stated in the noting sheet that the matter be
put up for appropriate action. Though this note is dated
30.01.2017 and was put up to the Chairperson, WBCPCR, it
appears that the Chairperson wrote that she should be reminded
after 10 days for follow up action. The file was again put up
before the Chairperson on 13.02.2017. On 14.02.2017 it was
ordered that the District Magistrate/District Children Protection
Officer (DCPO) may be asked to submit a report. A draft letter
was put up which was approved on 16.02.2017 and dispatched
on 17.02.2017. The DCPO, Jalpaiguri sent the report through
mail dated 24.02.2017. The matter was again placed before the
Chairperson, who directed that the report be kept for records.
The next noting on the file is of 15.03.2017. This note of
15.03.2017 has been put up with regard to the visit of the
Chairperson and Secretary to Jalpaiguri on 10.03.2017 and
11.03.2017 to assist and monitor the situation after the recent
17
cases of child trafficking. Though, the visit is dated 10.03.2017
and 11.03.2017, the note is put up on 15.03.2017 and approved
on the same date. We are unable to understand why the note for
the visit was not put up prior to the visit. We have perused the
report prepared by the Chairperson of the WBCPCR and find that
the report is more in the nature of allegations against the
members of the NCPCR. The report virtually does not deal with
the issue related to trafficking of the children. We shall deal with
this report at a later stage.
18. Even if we accept the record of the WBCPCR to be the gospel
truth then also other than using the word ‘takes suomoto
cognizance’ on 30.01.2017, the WBCPCR had taken no steps to
inquire into the matter, which is the mandate of Section 13(1)(j)
of the CPCR Act, till the visit of its Chairperson on 10.03.2017
and 11.03.2017. We make it clear that in every case a personal
visit is not required but the manner in which this case has been
dealt with leaves much to be desired. We see no reason why, if
cognizance was taken on 30.01.2017, it was directed that the
matter be placed for reminding the Chairperson to take follow up
action after 10 days. These sort of matters brook no delay. Even
18
after the matter was put up, no attempts were made to hold an
inquiry. All that was done was to order the District
Magistrate/DCPO to submit a report. That report was filed on
24.02.2017 and it was ordered that the report be kept on record.
It appears that it is only after the visit of the members of the
NCPCR that the WBCPCR actually felt it necessary to itself visit
Jalpaiguri and take stock of the situation.
19. As pointed above, as far as NCPCR is concerned, on
03.03.2017 a communication was sent by the NCPCR to the
District Magistrate, Jalpaiguri wherein he was asked to give
specific information with regard to the home in question.
Thereafter, on 07.03.2017 two members of the NCPCR visited
Jalpaiguri and even if the inquiry did not start on 03.03.2017, it
definitely started on 07.03.2017. It found various deficiencies
especially with regard to nonconstitution of Child Welfare
Committee (CWC) in New Jalpaiguri District from 23.08.2013
28.08.2015. It also found that ad hoc CWC was functioning
which is against the provisions of law. Therefore, the NCPCR
sent a letter on 16.03.2017 to the District Magistrate, Jalpaiguri
seeking status of registration of homes, status of CWCs etc. On
19
23.03.2017, the NCPCR sent another letter to the District
Magistrate specifically asking whether the WBCPCR had
commenced an inquiry into the matter before the visit of the
members of the NCPCR or after the initiation of the inquiry by the
NCPCR. To this, no reply was given by the District Magistrate.
Then, the NCPCR summoned the District Magistrate, Jalpaiguri
on 12.04.2017 for personal appearance on 25.04.2017. The
District Magistrate did not appear but sent some information vide
communication dated 21.04.2017. However, in this
communication also there is no reply to the specific query as to
whether the WBCPCR had initiated an inquiry into the matter.
The NCPCR also took no steps for almost two months. On
20.06.2017 the NCPCR sought the following information from the
ADGP, CID, West Bengal (respondent no.1):
“1. In this case, sale of as many as about 17 children has
been mentioned in this case, in which children were sold
both in the country and abroad. Since this organization
has come in existence, how many children have been
adopted through this organization, provide list of those to
the Commission.
2. In this case, children were given to NonResident Indian
and foreign couples both, hence this case seems to be case
of international trafficking. Record concerning as to how
many children have been given to Nonresident and foreign
coupes be made available to the Commission.
3. According to newspaper, forged papers and papers of
National Adoption Authority have been used in this crime
20
in forged manner. Copies of papers seized by CID,
statement & list/copies of evidence be made available to
the Commission.
4. List of all the detained/arrested people in this case, copy of
First Information Report, copies of all the investigation
reports be provided to the Commission. Copy of the
statement of detained people.
5. From the year 2013 to 2015 Child Welfare Committee had
not been constituted in District Jalpaiguri, in place
thereof, Ad hoc Committee had been working. The
followingmentioned papers/documents relating to this
Committee be made available to the Commission:
i. Copy of order for constituting ad hoc committee.
ii. People included in the ad hoc committee, list of those
with their names, posts/designations be made
available to the Commission.
iii. Minutes of the meetings convened by ad hoc
Committee during its tenure.
iv. Decisions about how many children were taken by Ad
hoc Committee, copies of all the case files concerning
with all those.
If any charge sheet has been filed in court, then copy
thereof.”
20. On the same day i.e. 20.06.2017, the District Magistrate,
Jalpaiguri, was also directed by the NCPCR to give information
pertaining to the constitution of ad hoc committee and members
of the ad hoc committee. That very day another communication
was sent by the NCPCR to the Department of Women & Child
Development, West Bengal, to initiate an inquiry into the matter
and inform the NCPCR about the report of the Government.
According to the NCPCR, no response was received from any of
21
the authorities. Thereafter, another reminder was sent on
13.07.2017. Left with no option, on 20.07.2017, summons were
issued to the ADGP, CID, West Bengal to appear before the
NCPCR in person on 25.07.2017 along with relevant documents.
A communication was also sent to the Chief Secretary, West
Bengal on 22.07.2017 asking for information. The ADGP, CID,
West Bengal by letter/fax on 24.07.2017 informed the NCPCR
that since WBCPCR has already proceeded with the matter, the
NCPCR should stay its hand in the present matter. Meanwhile on
21.07.2017, a report was sent by the CID, West Bengal supplying
some information but most of the information was not sent.
Thereafter, the NCPCR issued summons to the ADGP, CID, West
Bengal on 14.08.2017 to appear before the NCPCR on
29.08.2017. The ADGP, CID, West Bengal challenged these
summons by filing a writ petition in the Calcutta High Court.
The Advocate General of the State appeared for Dr. Rajesh
Kumar, ADGP, CID, West Bengal. The High Court vide impugned
order, prima facie, came to the conclusion that since the
WBCPCR had taken cognizance of the matter on 24.02.2017, the
NCPCR is denuded of its jurisdiction over the subject. The High
Court, accordingly, stayed the summons.
22
21. We are constrained to observe that in this clash of egos
between the State Commission (WBCPCR) and the National
Commission (NCPCR), for this entire period, other than the police
taking action, nothing was done on the administrative side to set
matters right.
22. The police have acted, a case has been filed, accused have
been arrested and we are told that most of the children have been
reunited with their parents. We are purposely not commenting
on the criminal aspects of the matter. We refrain from doing so
because any comment from us may affect the trial of the accused
who are entitled to a fair and free trial. In fact, since criminal
proceedings in respect to the illegal adoptions had already
started, no inquiry could actually be conducted by either of the
two Commissions with respect to the same. However, the
National Commission was definitely entitled to inquire as to why
proper CWCs had not been constituted and under what orders
were ad hoc CWCs functioning. The Commissions can also
inquire into the factual aspects which led to the trafficking of the
children, though not the actual crime itself. In fact, we are of the
view that such inquiries are necessary so that such events do not
23
occur in the future. In case, the CWCs had been properly
constituted may be this unfortunate situation would not have
arisen.
23. Though we are of the view that an inquiry into the alleged
illegal adoption could not be conducted because a criminal case
had already been registered, at the same time, we cannot shut
our eyes to the manner in which both the State Commission
(WBCPCR), the National Commission (NCPCR) and the senior
officials of the State CID have dealt with the matter. We have
already commented on the lack of alacrity on the part of the
WBCPCR which purportedly took cognizance of the matter on
30.01.2017 but no effective steps were taken to inquire into the
matter till 10.03.2017 except calling for a report. The members
of the NCPCR visited Jalpaiguri on 07.03.2017 and have recorded
the statement of CWC members. According to the statements so
recorded, one of the accused, who was Secretary of the NBPDC
which was running the concerned SAA, prayed for certificates for
20 children to be declared legally fit for adoption whom they
placed before Prospective Adoptive Parents (PAPs) without Legally
Fit for Adoption (LFA) Certificates from CWC, Jalpaiguri.
24
According to the statements, the members of the CWC were
shocked that the legal procedure had not been followed.
According to these members, they complained to the various
officials but they were compelled to give certificates that the
children were legally fit for adoption. In the absence of the
parties who have made the statements, we would not like to
make any further comment except to state that if any member of
a CWC can be compelled or pressurized to give such a certificate
then that member has no business of ever being appointed as
member of CWC or in any capacity in a child rights institution.
24. We, however, find that in the report of the Chairperson,
WBCPCR she herself mentioned that they had visited the home
and inspected the premises but nothing more is written as to the
manner in which the children were trafficked. Rest of the report
deals with alleged misconduct of the members of the NCPCR
when they visited the home at Korak. It is alleged that the
Superintendent of the Home complained that the NCPCR team
had brought entire media including the television media inside
the centre and despite protest of the Superintendent, the media
was brought inside the home. Again, the Chairperson mentions
25
that the District Magistrate also complained that the team of the
NCPCR had brought media everywhere and had insulted
everyone. However, we did not find anything of this sort
mentioned in the communication sent by the District Magistrate.
Be that as it may, we find that the report of the Chairperson
WBCPCR does not deal at all with the issue of child trafficking.
25. We would like to make it clear that when arguments were
taking place the report of the Chairperson, WBCPCR was not
brought to our knowledge and we only saw it in the file.
Therefore, we cannot rely on the report of the Chairperson,
WBCPCR especially since we have not given the NCPCR a right to
rebut what is stated in this report. However, even if all aspects
are not correct but only one aspect of taking the media inside the
home is correct, we have to express our displeasure with the
same. We would like to make it clear that no person(s), including
members of the Commissions whether it be the National
Commission or the State Commission, are permitted to take
media with them when they visit any of the homes set up under
the JJ Act or under any other law. The privacy of the children is
of the highest importance. In this fight between two bodies, the
26
children cannot be made subject matter of a media war. We
sincerely hope that nothing like this will happen in future.
26. Coming to the role of the National Commission, we
somehow feel that the National Commission was also more
interested in settling scores with the State Commission or with
the officials of the State Government rather than ameliorating the
plight of the children. On 03.03.2017, the following information
was asked by the NCPCR from the District Magistrate:
“1. Whether this Home was registered? Copy of the
registration of the organization, list of officers and
employees of the organization be provided to the
Commission.
2. Whether this Home had been registered from Central
Adoption Authority? Whatever papers relating to
registration in CARA are available, be made available to
the Commission.
3. Whether this organization had been working as District
Adoption Authority? Papers relating to registration in the
Women & Child Development Department, West Bengal
be made available to the Commission.
4. If this organization has been run under section 41
Juvenile Justice (Care & Protection of Children) Act, 2015
registered Specific Adoption Agency recognized by Central
Adoption Resources Authority, State Adoption Resources
Tribunal, concerning papers be made available to the
Commission.
5. In this case, sale of as many as about 17 children has
been mentioned in this case, in which children were sold
both in the couintry8 and abroad. Since this
organization has come in existence, how many children
have been adopted through this organization, provide list
of those to the Commission.
27
6. In this case, children were given to NonResident Indian
and foreign coupes both, hence this case seems to be
case of international trafficking. Record concerning as to
how many children have been given to Nonresident and
foreign couples be made available to the Commission.
7. According to newspaper, forged papers and papers of
National Adoption Authority have been used in this crime
in forged manner. Copies of papers seized by CID,
statement & list/copies of evidence be made available to
the Commission.
8. List of all the detained/arrested people in this case, copy
of First Information Report, copies of all the investigation
reports be provided to the Commission.
9. How many children were sent by Child Welfare
Committee (CWC) to the organization, how many times
CWC visited organization during the past five years and
whatever other proceedings have been initiated relating to
the organization, copies of those be made available to the
Commission.
10. Reports of all the inspections conducted by the District
Administration in the abovesaid organization in the past
three years, and copy of report of inspections conducted
at the time of registration of organization be made
available to the Commission.
11. Make available list of adoption organization or
organizations/institutions concerning with welfare of
children (CCI) whether registered/unregistered in
Jalpaiguri be made available to the Commission.
12. If any other organization/institutions have remained
involved in illegal acts and cases would have been
registered against them, list of those be made available to
the Commission.
13. Because limits of District Jalpaiguri are attached with
international limits of Nepal and Bangladesh, therefore,
list of cases of trafficking registered in the district and list
of complaints registered about missing children etc. from
District. also be made available to the Commission.”
28
27. In our opinion, the District Magistrate should have given the
requisite information to all the aforesaid questions except
Question Nos. 7 and 8 because these related to copies of papers
seized by the CID and list of all detained people in the case. The
Commissions under the CPCR Act have no jurisdiction to monitor
criminal cases. Their jurisdiction does not extend to monitoring
the law and order which is a State subject.
28. Thereafter, on 16.03.2017 the following information was
also asked for by the NCPCR from the District Magistrate:
“14. From the year 2013 to 2015 Child Welfare Committee had
not been constituted in District Jalpaiguri, in place thereof, Ad
hoc Committee had been working. The followingmentioned
papers/documents relating to this Committee be made
available to the Commission:
i. Copy of order for constituting ad hoc committee.
ii. People included in the ad hoc committee, list of those
with their names, posts/designations be made available
to the Commission.
iii. Minutes of the meetings convened by ad hoc Committee
during its tenure.
iv. Decisions about how many children were taken by Ad
hoc Committee, copies of all the case files concerning
with all those.
15. During the course of inquiry, it was given to understand
that office of the District Children Protection Office (DCPO)
which is available in the premises of the Collectorate itself, was
sealed and case has been registered against few people.
Particulars of all those and the followingmentioned
information relating to those are desired:
29
i. People who were appointed in DCPO Office in the past
10 years.
ii. Order for all the appointments.
iii. List of all the people appointed.”
29. In our opinion, the aforesaid information could have also
been provided by the District Magistrate but, for reasons best
known to her, this information was not provided promptly. On
23.03.2017, the NCPCR sent a letter to the District Magistrate,
Jalpaiguri in which the District Magistrate was specifically asked
to answer the following query:
1. Whether West Bengal State Commission for
Protection of Rights of Children have commenced any inquiry
in the abovesaid case as to your level before approaching of
Commission or after commencing inquiry by the National
Commission for Protection of Rights of Children? If so, then
please provide details thereof.
From the record it appears that no answer was sent by the
District Magistrate to this query. Therefore, the NCPCR was
justified in further proceeding with the matter because it was
neither informed by District Magistrate or the WBCPCR that the
WBCPCR had already started inquiry into the matter. It was only
after summons were issued to the District Magistrate on
12.04.2017 that she sent some documents. However, with
regard to a large number of documents, it was stated that since
the concerned DCPO has been arrested and the documents were
30
in her custody, the requisite papers were not traceable. With
regard to some of the documents it was mentioned that the CID,
West Bengal may be contacted because those documents are
with the police in connection with the criminal case.
30. It was thereafter that a communication was sent on
20.06.2017 to Dr. Rajesh Kumar (IPS), ADGP, CID, West Bengal
by the NCPCR. This was the first letter sent to a police official.
In this letter, certain information quoted hereinabove was called
for. Dr. Rajesh Kumar, ADGP, CID, West Bengal did not provide
the aforesaid information and thereafter on 13.07.2017 a
reminder was sent to him. Similar reminder was sent to the
District Magistrate also. Thereafter, on 20.07.2017 summons
were issued to Dr. Rajesh Kumar. As mentioned earlier, Dr.
Rajesh Kumar sent a letter/fax on 24.07.2017 mentioning that
the WBCPCR had taken cognizance of the matter and, therefore,
the NCPCR is barred from taking up the inquiry. Reply was sent
on 24.07.2017 informing him that if he did not appear before the
National Commission, action against him will be taken under
Section 166A of the Indian Penal Code, 1860. Thereafter, Dr.
Rajesh Kumar sent a detailed reply challenging the authority of
31
the National Commission to summon him and also taking
exception to the language used in the letter. We fail to
understand why this police official took such a step. We may
mention that he has not been served despite various attempts by
this Court. It appears to us that he does not want to appear
before us on one pretext or the other. We are constrained to
observe that from a perusal of the documents on record it is
apparent that he did not cooperate with the National
Commission. The answer given by the State CID to the NCPCR is
that the documents are lying with the Court. We are sure that a
senior IPS official of the level of Dr. Rajesh Kumar must be aware
that copies of all documents are also kept by the police before
filing them in Court. Why could these documents not be
provided to the National Commission? At least those documents
that had nothing to do with the criminal aspect of the case but
dealt with formation of the ad hoc committees and the absence of
a properly constituted CWC could have been provided.
31. With regard to the letter dated 03.03.2017, we have already
indicated that all the information except that relating to question
nos. 7 and 8 should have been provided by the District
32
Magistrate. In fact, even with regard to question nos. 7 and 8,
even if the copies of the papers seized and copies of the
statements recorded were not to be provided, there was no
problem in providing the list of the detained persons and copy of
the FIR. As far as the second letter dated 16.03.2017 is
concerned, again we find no reason why the information could
not be provided. But since the District Magistrate had responded
that some of the information was not available as it was handed
over to the State CID, we would have expected that the ADGP,
CID, West Bengal should have provided the necessary
information to the NCPCR except that which related only to the
investigation of the criminal case. In our view, neither the
National Commission nor the State Commission had jurisdiction
to investigate the criminal matter and they cannot ask for copies
of the statements recorded by the investigating authorities. That
can only be a matter between the prosecution and the accused.
32. Having said so, we are clearly of the view that Dr. Rajesh
Kumar was obviously not cooperating with the NCPCR for
reasons best known to him. In our view, the State Commission
had not started any inquiry into the illegal setting up of CWCs or
33
the alleged ad hoc CWC being constituted in violation of the laws.
We see no reason why Dr. Rajesh Kumar has not responded to
the letter of the NCPCR clearly providing the information
indicated above. His reply that the documents had been filed in
court is obviously an evasive answer. We are constrained to
make observations against Dr. Rajesh Kumar even though he is
not present before us because we have no doubt in our mind that
he is evading accepting notices sent from this Court.
33. Police officials should realise that when the Commissions
constituted under the CPCR Act ask for some relevant
information, they must respectfully reply to the same and not
rake up the dispute of socalled ‘jurisdiction’. Even the police
officials must realise that these Commissions have been
constituted for the welfare of the children. Even assuming that
the WBCPCR had started an inquiry, we see no reason why Dr.
Rajesh Kumar could not have provided the information to the
NCPCR. It was not for him to question the jurisdiction of the
NCPCR. If any official is asked for information by any of the
Commissions, he is duty bound to reply to the letters of the
Commission. One Commission may raise the issue that since it
34
is seized of the matter and is inquiring into it, the National
Commission should not start another inquiry, but it is not for the
officials to raise such an issue. Whether an inquiry has actually
been initiated or not cannot be decided by an official. This has to
be decided either by the Commission or by a Court of law.
Therefore, in our view, Dr. Rajesh Kumar would have been better
advised to furnish information to the NCPCR rather than
challenging the jurisdiction of the NCPCR.
34. Having held so, we are clearly of the view that even the
language of the letters sent by the NCPCR to Dr. Rajesh Kumar
was unnecessarily harsh. We are not repeating the contents of
the letters but, according to us, when a Commission asks for
information, the letter should be formulated like a request and
not like an order. Even if there is noncompliance of such
request, the Commission should send another letter in stronger
terms directing the official to provide the requisite information.
But there is no need to threaten officials with arrest. This should
only be done as a last resort.
35. We may also note that though the National Commission
showed a lot of urgency till the matter went up to the Calcutta
35
High Court, after the matter came to this Court, for almost 2
years virtually nothing was done and we were orally informed
that due to lack of translation of documents from Bengali to
Hindi/English, the inquiry could not be completed. We are of the
view that if the NCPCR decides to inquire into a matter then it
must procure the services of a translator to get the documents
translated from the regional languages. It cannot, on the one
hand, take over the inquiry even if the State Commission has not
started the inquiry and, on the other hand, rely upon the
authorities of the State to provide the translation. We are sure
that there are enough universities and colleges in Delhi where
Bengali is taught and if the National Commission really wanted to
complete the inquiry, the documents could have been got
translated.
36. As far as the questions framed by us in Para 12 of this
judgment are concerned, we answer Question No.1 by holding
that in the facts of the present case, the WBCPCR had not started
an inquiry till 07.03.2017. As far as Question No. 2 is
concerned, we are of the view that there is no question of ouster
of jurisdiction of any Commission. The only constraint placed by
36
Section 13(2) is that if the State Commission has already started
an inquiry, the National Commission should naturally refrain
from inquiring into the matter. This, however, does not mean
that the National Commission cannot go into the other larger
questions which may have led to the specific incidents of
violation of child rights which need to be inquired into. With
regard to Question No.3 we hold that even a State Commission
has the power to inquire into those matters which fall within its
purview and even if the illegality is such that it has interState or
international ramifications, e.g. a child is being illegally sent for
adoption abroad. Here again, we are of the view that if the State
Commission in such a case asks for assistance from the National
Commission or some other State Commission where the child
may have been illegally trafficked, the National Commission or
the other State Commission(s) should cooperate with the
Commission inquiring into the matter.
37. As clearly held by us above, both the Commissions have to
work for the best interest of the children in a spirit of
cooperation. Unfortunately, in this case, there has been no
cooperation rather mudslinging at each other. We would like to
37
reiterate and reemphasise that there are no jurisdictional issues
involved.
38. In view of the above, we are clearly of the view that Dr.
Rajesh Kumar should have furnished the information which
appears to now have been furnished by the State authorities. If
such information has not been furnished, the present incumbent
holding the post of ADGP, CID, West Bengal is directed to furnish
the information to the National Commission as well as to
Juvenile Justice Committee of the High Court of Calcutta within
15 days from the date of receipt of certified copy of this judgment.
The counsel for the State of West Bengal shall inform the present
Additional Director General of Police, Criminal Investigation
Department, West Bengal of these directions.
39. As is evident from the facts narrated above, both the State
Commission (WBCPCR) and the National Commission have been
woefully lax in the matter. Hence we direct that other than the
issues which form part of the criminal case, all other matters
relating to the issue in hand and larger issues of appointment of
CWCs and heads of CWCs, not only as far as this case is
concerned, but also for the entire State of West Bengal, should be
38
monitored by the High Court of Calcutta, preferably by a bench
headed by the Chairperson of the Juvenile Justice Committee of
the High Court of Calcutta in a public interest litigation. In
furtherance of these directions, we direct the Registry of this
Court to send a copy of this judgment to the Registrar General of
the Calcutta High Court, who shall place the same before the
Hon’ble Chief Justice of the High Court for constitution of an
appropriate Bench. We request the Bench so constituted to deal
with the matter as per the urgency involved and if required, to
establish a fool proof mechanism so that such occurrences do not
take place in future.
40. This appeal is partly disposed of in the aforesaid terms in so
far as the disputes inter se the NCPCR and WBCPCR are
concerned. We, however, make it clear that the issue of setting
up of human rights courts and appointment of special public
prosecutors for such human rights courts shall be dealt with in
this appeal as well as in the Writ Petition (C) No.819 of 2019. All
pending application(s) related to the dispute between the NCPCR
and the Dr. Rajesh Kumar, ADGP, CID, West Bengal (respondent
no.1) & WBCPCR, shall stand(s) disposed of accordingly.
39
…………………………….J.
(Deepak Gupta)
..…………………………..J.
(Aniruddha Bose)
New Delhi
January 13, 2020
40
41
