IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.296  OF 2009 (Arising out of S.L.P. (Crl.) No. 4243 of 2008)

Chandrika Prasad Yadav …. Appellant Versus

State of Bihar & Ors.    …. Respondents

ORDER

Dr. MUKUNDAKAM SHARMA, J.

1. Leave Granted.

2. Appellant herein filed a complaint before the Chief Judicial Magistrate

(for short ‘CJM’), Hajipur on 07.02.2008 u/s 366A, 380 read with Section

34 of  Indian  Penal  Code (for  short  ‘IPC’)  alleging  that  his  daughter

Ruchi Kumari (hereinafter referred to as ‘victim’) aged about 14 years of

age had been enticed and thereafter kidnapped by one Sanjeev Kumar

(hereinafter referred to as ‘accused’), an Uncle of the victim aged about

20 years with the intention to marry her. It was stated in the complaint

that the said incident took place on 03.02.2008 at 4:00 pm, when the

victim had gone to collect wood for cooking.  It was further stated that

the accused, thereafter,  by breaking the lock had also taken away a

gold chain of 2 bhar, valued at Rs. 40,000/-, an earring of 1 bhar, valued

Rs. 10,000/-, a silver anklet of 10 bhar, valued at around 2,500/- and

cash Rs. 10,000/-.  Two uncles of the accused namely Aurun Rai and

Vinit  Rai  were  also  named  in  the  said  complaint  for  assisting  the

accused in the alleged kidnap.

3. Cognizance of  the complaint  was taken and during investigation the

victim was recovered.  The statement of the victim was recorded u/s

164 of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) and she

was sent for medical examination.  The accused was also arrested.

4. Subsequently, the complainant-appellant filed an application for seeking

custody of her minor daughter.  However, the girl desired to go with her

alleged accused husband who was arrested.  The learned CJM vide

order  dated  07.03.2008  directed  that  the  victim be  sent  to  the  Nari

Suraksha Grih (Woman Protection Home), Patna for safety till the next

date, as it was expected that by that time the medical report could also

be received.  But the medical  report  was not produced in court  and

therefore the learned CJM extended the period of stay of victim at the

Woman Protection Home.

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5. Aggrieved by the  aforesaid  order  of  the  learned CJM extending the

period  of  stay  of  the  victim  at  the  women protection  home and not

granting her custody to the complainant-appellant, he filed a writ petition

before the Patna High Court seeking issuance of  the writ  of Habeas

Corpus.   Notice  was  issued  in  the  said  writ  petition.  However  after

hearing  the  parties,  the  Patna High Court  by a  judgment  and order

dated 07.05.2008 dismissed the said writ petition by holding that since

the daughter of the complainant is kept in a protection home pursuant to

an order passed by the CJM, the writ of the aforesaid nature, as prayed

for, is not maintainable and is also misconceived.   

6. Being aggrieved by the aforesaid order the present appeal is preferred

before us challenging the aforesaid impugned order contending inter

alia that the custody of a minor girl could not have been denied to a

natural guardian i.e. the father on the alleged ground as stated in the

impugned order.  It was submitted that the ground stated in the order of

CJM to the effect that the medical report is awaited is also not a valid

ground for denying custody of the minor girl to the appellant who is the

natural guardian.

7. Notice was issued to the parties by this Court.  On the day when the

matter was listed before the court a statement was made by the learned

counsel  appearing  for  the  appellant  that  even  the  minor  victim  girl,

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namely,  the  daughter  of  the  appellant  has  also  now  shown  her

willingness to go to  her  parents home from the Nari  Suraksha Grih.

Thereafter it transpired that the said victim girl, namely, Ruchi Kumari

along with three other girls was missing from the said after care home.

8. On 12.8.2008 the  Superintendent,  Nari  Suraksha Grih,  Gai  Ghat,

Patna  lodged  an  information  with  the  Station  House  Officer,  Alamganj

Police  Station  contending  inter  alia   that  on  the  previous night,  i.e.  on

11.8.2008 at about 10.30 p.m. lady constable Janki Devi and lady home

guard Saraswati  Devi who were on duty informed that Nibha Devi alias

Minta Devi, Reena Kumari, Ruchi Kumari and Meera Kumari were found

missing and that the male constables posted as security in the home were

sent out to trace them out but the said four inmates could not be found

anywhere.  The said intimation was also given to the court upon which an

order came to be passed by this Court on 05.11.2008 directing the Senior

Superintendent of Police, Patna District to take all steps to trace out Ruchi

Kumari, the daughter of the appellant and to produce her before this Court

on  04.12.2008.   It  was  also  ordered  that  by  the  said  date  the

Superintendent  of  Nari  Suraksha  Grih,  Gai  Ghat,  Patna  would  send  a

report to this Court as to the circumstances in which Ruchi Kumari and

other three girls ran away from the said protection and care home.  The

Member Secretary of the Bihar State Legal Services Authority was also

directed to visit the said Nari Suraksha Grih, to peruse the records of the

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said Suraksha Grih and submit a report with regard to the disappearance of

the said girls.  

9. Pursuant to the aforesaid order, the Member Secretary of the Bihar

State Legal Services Authority has submitted a report, in which she has

stated that she visited the Nari Suraksha Grih on 14th November, 2008 and

again  on  29th November,  2008.  During  the  aforesaid  visit  she  had

investigated and checked the Entry Register along with all other connected

records with respect to the four inmates viz., Ruchi Kumari, Meera Kumari,

Nibha Devi and Reena Kumari.  She had mentioned in the said report that

during  the  course  of  her  inquiry  she  has  come  to  learn  from  the

Superintendent of Nari Suraksha Grih that the aforesaid four girls fled away

from the protection home on 11.8.2008 at 10.30 p.m., regarding which she

submitted  an  information  to  the  local  police  station,  the  Sub-Divisional

Officer,  Patna City,  Patna and the Director,  Social  Welfare Department,

Government of Bihar, Patna. According to the Superintendent no attempt

was made by the police at once to trace out the said girls and, therefore,

she filed the complaint in writing on the next date.

10. The aforesaid report  of  the Member Secretary of  the State  Legal

Services  Authority,  which  we  have  very  carefully  perused,  depicts  a

miserable  picture  regarding  the functioning and governance of  the  said

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women protection home.  It is disclosed that registers were not properly

maintained and that there is also no check on entry inside the said home.

It  is  stated in  the said report  that  the aforesaid four  girls  fled away on

11.8.2008 by jumping over the rear wall of the Nari Suraksha Grih which

was of 12 feet height and that fleeing of such girls from that home is a

regular feature and practice.  Our attention was also drawn to the fact that

the Superintendent of the said home was earlier transferred due to several

complaints  regarding  the  administration  of  the  said  home.   The  report

indicates that there is lack of sufficient security guards inside the said home

and  also  lack  of  staff.   The  father  of  the  victim  girl,  appellant  herein

also filed an additional affidavit stating that his daughter disappeared from

the  women care  and protection  home on 11.8.2008.   He  has  made  a

grievance that the police officials at Patna were not interested to trace out

the victim and rather they are pressurizing him to withdraw the case.  He

had also complained of receiving threats from the police as also from the

State.

11. When the matter was taken up in the court, counsel appearing for

the appellant made an oral statement that the minor son of the appellant

was picked up by the police and that he has not been released.  It was

stated that the police picked up his 16 years old son Mintu Kumar and

thereafter his son had not returned.  The said statement was reiterated in

an additional affidavit filed by the appellant.  He had stated that he is a

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Government  servant  and  is  now posted  in  the  office  of  the  Executive

Engineer, P.W.D., Bihar.  He had also stated in his affidavit that he had

sent the details of complaint to the National Human Rights Commission,

New Delhi, the Director General of Police, Bihar and the Chairman, Legal

Services  Authority,  Bihar.   He  has  reported  that  the  police  was  not

interested in tracing out his daughter and rather they are trying to penalize

him and his family for approaching the court of law.   

12. Pursuant  to the order of  this  Court  a status report  is  filed by the

police wherein it  is stated that the police tried to contact the father and

maternal uncle of Ruchi Kumari but they could not be located.  It was also

stated therein that the son of the appellant,  namely, Mintu Kumar aged

19 years was taken to the police station Alamganj and was questioned

about the whereabout of Ruchi Kumari and that thereafter the said boy was

examined and then sent  back home.   The allegation  that  the  police  is

pressurizing  and using  coercion  on the  appellant  is  denied  in  the  said

status report.  

13.  It transpires that due to the detailed investigation and raids made by

the police at different places they were able to recover two girls namely

Meera Kumari and Reena Kumari who had allegedly ran away with Ruchi

Kumari.  On questioning it was found out from them that they were helped

in coming out from the protection home by the relatives of the appellant,

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namely, maternal uncle and other relatives of the appellant who came to

protection home and took away all the four girls.  Two of them except Ruchi

Kumari and Meera Kumari were allowed to go to their respective homes.  It

also transpires that a letter has been written by the victim, Ruchi Kumari to

the  CJM  on  13.12.2008  which  was  sent  through  registered  post  from

Gulzar Bagh Post Office, Patna alleging inter alia that the relatives of the

husband  of  the  victim  helped  her  in  running  away  from the  protection

home.   

14. In the said status report it  is stated that the police team specially

constituted for the said purpose is making investigation and taking all steps

to recover Ruchi Kumari.  Reference also could be made to the statement

of the Meera Kumari which was recorded by the police under Section 164

of the CrPC.  It was stated in the said statement that at about 8.00 p.m. at

night  maternal  grand-mother,  grand-father  and  uncle  of  Ruchi  Kumari

arrived at Remand Home, Patna and took away all the four girls viz., Nibha

Devi, Reena Kumari, Ruchi Kumari and Meera Kumari from the Remand

Home, Patna.

15. Having  scrutinized  all  the  records  and  having  heard  the  learned

counsel appearing for the parties, we are distressed to find that a minor

victim girl,  who was sent to the protection home by a judicial  officer for

providing home and safety would be missing from the said home without

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the knowledge of the authority managing the said protection home.  It is

shocking that a home which is being run by the State Authority and named

Suraksha Home has practically no security and that  the inmates of  the

house either could be forcibly  taken away or could run away from the said

home easily and that also without the knowledge of the Authority.  What is

more astonishing is the fact that such incident is said to be a regular affair.

It  is  unfortunate  that  although  the  police  was  informed  immediately

thereafter, the police did not even think it appropriate to swing into action

immediately.   

16. On  perusing  the  records,  we  find  that  there  is  total  lack  of

supervision and control in the management of the home and there is also

lethargy  and  negligence  on  the  part  of  the  police  authority,  which  is

entrusted  with  the  duty  of  providing  security  and  safety  and  also

maintaining  law  and  order  and  also  empowered  to  investigate  into  an

offence brought to their notice.  The State authority is duty bound to see

that  all  its  welfare  measures  are  being  carried  out  effectively  and

meaningfully but from the facts of the present case it appears that it has

failed to discharge its responsibility.   

17. If the inmates of the protection home could flee away, as alleged,

from the control of authority managing the home or if persons could enter

the said home at the dead of night without detection or permission and

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could take away girls under the nose of the people protecting the home, lot

of explanation would have to be given by the appropriate Government and

the competent authority regarding their capabilities of offering proper care

and protection to such girls and women. Probably it is for such reasons that

today these care and protection homes are becoming homes for trafficking

of  girls  and  women.   It  appears  that  the  State  Government  is  totally

oblivious of its responsibilities regarding implementation of social welfare

programmes  of  providing  secured  homes  to  destitute  women and  also

children in conflict with law.

18. Considering the gravity of the situation and the problem, we direct for

conducting a proper and detailed inquiry into the whole episode and affair

for  we  will  like  to  be  enlightened  not  only  about  the  functioning,

management and the security of Nari Suraksha Griha but also regarding

whereabout of the concerned girl and how she could go missing from the

state home and as to who is responsible in helping the girl to flee away, if it

is  so  and  consequential  actions  taken  by  the  police.   We  request  the

Hon’ble  Chairman,  Bihar  Human Rights  Commission  to  cause such  an

inquiry and then submit a report to us preferably within six weeks from the

date  of  communication  of  the  order.  In  addition  the  Chief  Secretary,

Government of  Bihar  is  also directed to  submit  a report  within the said

period  with  respect  to  the  maintenance  and  governance  of  the  said

protection home specifically indicating the security measures and the steps

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being taken up in that regard. The report should also indicate the reasons

behind the inability of the police to trace out the missing girl and also the

status of the investigation.   He shall also inform through the report if any

action  is  taken  or  contemplated  against  any  of  the  erring  officer  or

employee.

19. We hope and expect that the report, as aforesaid, to be submitted by

the Hon’ble Chairman and the Chief Secretary would be a comprehensive

report.  List after six weeks.

…………………………... J.

(S.B. Sinha)

……………………………J. (Dr. Mukundakam Sharma)

New Delhi; February 13, 2009

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