Rosni Society (A Registered ... vs State Of Uttarakhand And Others
2022 Latest Caselaw 3077 UK

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

      THE CHIEF JUSTICE SHRI VIPIN SANGHI
                      AND
     JUSTICE SHRI RAMESH CHANDRA KHULBE


                  22ND SEPTEMBER, 2022


             Writ Petition (PIL) No.127 of 2022


Rosni Society (A Registered Society) for Rehabilitation of
Social & Neurological Impaired.
                                            ......Petitioner
                           Vs.

State of Uttarakhand and others               ......Respondents

Presence:-

Mr. Dushyant Mainali, learned counsel for the petitioner. Mr. K. N. Joshi, learned Deputy Advocate General for the State.

Order: (Per Shri Vipin Sanghi, Chief Justice)

Issue notice.

2. Mr. K.N. Joshi, learned Dy. Advocate General, appears and accepts notice on behalf of respondent nos.1 to 3 and 5 to 9.

3. Let the notices be issued to respondent nos.4 and 10 returnable on 23.09.2022. The respondent no.4 be served through respondent no.5.

4. The petitioner-society, which is a registered Society for Rehabilitation of Social and Neurological Impaired, has preferred this petition in the public interest to bring to light the shocking state of affairs with regard to the mentally challenged children and children with other disabilities, who are housed at the 'Janet Sheed Roberts Residential School for Special Needs Children' i.e., respondent no. 10 situated at Village Basai, Ramnagar, District Nainital. The petitioner has placed on record some of the photographs of the injuries stated to have been inflicted on the inmates of the said School, while at the school.

5. The petitioner has also brought to our notice the fact that one mentally challenged child, aged 14 years, who appears to be an orphan, was brought to the respondent no.10-School by the Child Welfare Committee. The said child went missing on 12.08.2022. However, the respondent no.10 did not report the matter to the police till as late as 09.09.2022. Even when the said report was made, the police has not registered the first information report, which they were obliged to do, as per the directions issued by the Supreme Court in 'Bachpan Bachao Andolan v. Union of India and others' (W.P. {C} No.75 of 2012) decided on 10.05.2013. The said judgment has been communicated by the Central Government to all the States for compliance.

6. The advisory issued by the Central Government, dated 25.6.2013, has been placed on record, in terms whereof, a Standard Operating Procedure had to be laid down to handle cases of missing children.

7. Mr. Mainali has produced before us the Standard Operating Procedure to be followed for cases of Missing Children issued by the Central Government in the Ministry of Women and Child Development on 23.11.2016. The said Standard Operating Procedure, inter alia, provides that: -

"When the Child goes missing:

Police

a) As per the directions of the Hon'ble Supreme Court of India in Bachpan Bachao Andolan vs. Union of India (WP (Civil) 75 of 2012) on 10th May 2013, - "upon receipt of a complaint regarding a missing child, an FIR should be registered forthwith as a case of trafficking or abduction‟.

b) Inform the Child Welfare Police Officer and forward the FIR to the Special Juvenile Police Unit for immediate action for tracing the child. Refer Annexure -I.

c) The police shall also:

i. Collect a recent photograph of the missing child and make copies for District Missing Persons Unit, Missing Persons Squad, National Crime Records Bureau/Media etc.;

ii. Fill the form "M" on the designated portal www.trackthemissingchild.gov.in Refer Annexure -II. iii. Fill the specific designated "Missing Persons Information Form" and immediately send to Missing Persons Squad, District Missing Persons Unit, National Crimes Records Bureau, State Crimes Records Bureau, Central Bureau of Investigation, PCRs, Railway Police and other related institutions;

iv. Send the copy of the FIR by post/email to the office of nearest Legal Services Authority along with addresses and contact phone numbers of parents and legal guardians of the missing child or the child care institution, after uploading the relevant information onto the designated portal;

v. Prepare sufficient number of Hue and Cry notice containing photograph and physical description of the missing child to be sent for publication;

vi. Give wide publicity by publishing or telecasting the photographs and the description of missing child, as feasible in

(a) leading newspapers

(b) Television/electronic media,

(c) local cable television network and

(d) social media and thereafter submit for ratification by the Board or the Committee or the Children's Court, as the case maybe;

vii. Give wide publicity in the surrounding area through the use of loud speakers and the distribution and affixture of Hue and Cry notice at prominent places. Social networking portals, short message service alerts and slides in cinema halls can be used to reach out to the masses;

viii. Distribute Hue and Cry notice at all the outlets of the city or town, that is, railway stations, bus stands, airports, regional passport offices, and other prominent places.

ix. Search areas and spots of interest such as movie theatres, shopping malls, parks, game parlours and areas where missing or runaway children should be identified and watched; x. Scan the recordings of the Close Circuit Television Cameras installed in the vicinity of the area from where the child was reported missing and on all possible routes, transit and destinations. xi. Inquire from under construction sites, unused buildings, hospitals and clinics, child line services and other local outreach workers, railway police and other places;

xii. Details of missing children should be sent to the District Crime Records Bureau of the neighboring States and Station House Officers (SHOs) of the bordering police stations including in-charge of all police posts in their jurisdiction and shall conduct regular interaction with the concerned so that follow up action is ensured.

d) Invoke the services of District Legal Services Authorities through empanelled lawyers and the paralegal volunteer (PLV) appointed at the police station or the district authority.

e) Upload information on the www.trackthemissingchild.gov.in portal. In case the information is already uploaded, match the complaint with case details uploaded on the portal.

f) Assess the level of threat or danger to the child, or his/her family and take immediate steps to ensure their protection.

g) Also inform immigration authorities, Border Security Force (BSF), Railways and other transport authorities, provincial/territorial and municipal agencies, and any NGOs involved in service delivery for spotting and recovering/rescuing the missing children.

Risk Assessment As per the check list at Annexure III, taking into consideration various parameters with respect to the missing child, risk assessment should be done and the "Risk Assessment Form" be filled out by the SHO/Officer in charge to determine the:

         i.     The urgency of investigation
         ii.    Areas of inquiry

iii. Types of specialist knowledge that might be needed iv. The supervision that maybe required v. Agencies who may be first alerted.

Organized Crime Perspective

1. Where a child cannot be traced within a period of four months, the investigation of the case shall be transferred to the Anti Human Trafficking Unit in the district which shall make reports every three months to the District Legal Services Authority regarding the progress made in the investigation.

2. If trafficking or any other element of organized crime is suspected, a specialized team shall be instituted for investigation headed by the SHO.

3. Ensure the compliance of investigation as per the check list in Annexure- IV."

8. Annexures Nos.3 and 4, referred to above, read as follows: -

"ANNEXURE III: RISK ASSESSMENT The following form should be filled out by the SHO in charge to structure inquiries and to assist the level of risk posed to the missing child

No Investigative considerations Details and Persons circumstances giving that information 1 Whether the child is under the age of 14 years 2 If the missing person is a girl child 3 If the child comes from the Economically Weaker Section (EWS)

4 If the missing child has been a subject of prior missing persons reports; or previously disappeared and suffered or was exposed to harm whilst missing 5 If the missing child has previously been a victim/witness in any criminal investigation 6 If the missing child suffers from a mental or physical impairment or serious illness; or requires essential medication or treatment not readily available to them e.g. asthma inhalers or insulin?

7 If the child is known to associate with adults or children who present risk of harm e.g. sexual offenders, drug peddlers etc. 8 If the child had been associated with any known criminals 9 If the child had been interacting with adults on the internet 10 If the child was subject to drugs and alcohol dependency 11 If the complainants have reason to believe that the missing child has been abducted or kidnapped for ransom 12 If there are suspicions of suicide or self-harm 13 If the child was involved in violent incidents prior to crime 14 If the child has had a history of abuse at home 15 If the child is being compelled/manipulated into a situation of bonded or exploitative child labour with or without knowledge of the parents/family/legal guardian;

16 If there is a high likelihood that the child may get lured into trafficking;

17 If the child is being threatened by related or non-related adults to take up inappropriate work;

18 If there is a likelihood that the child may get 'sold' by related or not related persons. 19 Inclement weather conditions where exposure would seriously increase the risk to health

ANNEXURE IV: RISK ASSESSMENT This checklist is meant to provide a framework of actions, consideration and activities that may assist in performing competent, productive and thorough investigation in cases of missing/abducted children.

Checklist for IOs/Eos No Investigative considerations Yes No 1 Whether the police officer dealing in missing children case is in plain clothes?

2 Whether the police officer dealing in missing children case is part of SJPU? If not has SJPU/District head of SJPU been informed?

3 Whether the parent(s)/ legal guardian(s)/persons who made the initial report were interviewed and their statements recorded?

4 Whether the fact of missing was confirmed?

5 Whether information regarding the missing child has been uploaded in Form 'M' on www.trackthemissingchild. gov.in 6 Whether the LSA and the para legal volunteers have been immediately involved and their inputs in relation to case details have been duly considered? 7 Whether the circumstances of the disappearance were identified?

8 Whether the individuals who last had contact with the child were interviewed?

9 Whether a detailed description was obtained of the missing child, abductor, and any vehicle involved? 10 Whether the photograph/videotapes of the missing child/abductor were secured?

11    Whether FIR is lodged immediately?
12    Whether all the steps required to be taken on a missing
      report as per SOP were initiated?
13    Whether the complainant was suitably guided when he/she

calls up subsequently about progress of the case? 14 Whether names/ addresses/ telephone numbers of the child's friends/teachers/associates and other relatives and friends of the family obtained?

15 Whether the scene and area of the child's home sealed/ protected?

16 Whether the fact that child has a cellular telephone or other electronic communication device or access to internet was ascertained?

17 Whether the search was extended to surrounding areas including vehicles and other places of concealment or amusement or open drains/pits etc.? 18 Whether the area where the child was last seen was investigated for CCTV or other such equipment?

9. Mr. Mainali submits that none of the steps, in terms of the Standard Operating Procedure, has been taken by the police in respect of the missing 14-year old mentally challenged child.

10. Having heard Mr. Mainali and perused the documents brought on record, it appears to us that it is necessary to immediately cause a local inspection of the institution i.e. respondent no.10 and to call for a report.

11. We, accordingly, direct the Registrar (Judicial) of this Court to proceed to respondent no.10-Institution. He shall be granted access by respondent no.10. Mr. Dushyant Mainali, learned Counsel for the petitioner as well as Mr. BPS Mer, learned Brief Holder for the State,

shall accompany the Registrar (Judicial). The SHO, Police Station, Ramnagar is directed to provide sufficient force to the Registrar (Judicial) to enable him to carry out the inspection. The Registrar (Judicial) shall inspect the complete premises, and also see the condition of the inmates as well as the general prevailing conditions of the institution, particularly, with regard to the hygiene, privacy, fooding, messing and boarding. He shall also take photographs and make video clips wherever he finds it necessary. He may also interact with the inmates and the staff and officers of respondent no.10, and also record their statements. We direct the management and employees of respondent no.10 to co-operate with the Registrar (Judicial) in the discharge of his duties in terms of our order.

12. The report be filed today itself.

13. In the light of the submissions advanced by Mr. Mainali, it appears that the police is completely ignorant about their obligations to take action in such like cases in terms of the Standard Operating Procedure, above referred to. Mr. Mainali submits that the Uttarakhand Commission for Protection of Child Rights has sent a communication dated 20.08.2022 addressed to the Chief Education Officer, District Nainital, a copy whereof has also been sent to the Sr. Superintendent of Police, Nainital, but to no avail.

14. We, therefore, direct the Sr. Superintendent of Police, Nainital as well as the Station House Officer, Police Station, In-charge Ramnagar, District Nainital to

personally remain present in the Court on the next date.

15. The Registrar General of the Court shall communicate this order to the Sr. Superintendent of Police, Nainital and the Station House Officer, Police Station, In-charge Ramnagar, District Nainital, for compliance.

16. List the matter on 23.09.2022.

________________ VIPIN SANGHI, C.J.

________________________ RAMESH CHANDRA KHULBE, J.

BS/SK