# NATIONAL COMMISSION FOR PROTECTION OF CHILD RIGHTS & ORS v. DR. RAJESH KUMAR & ORS

- **Citation:** [2020] 1 S.C.R. 976
- **Court:** Supreme Court of India
- **Decided:** 2020-01-13
- **Case number:** Civil Appeal No. 7968 of 2019
- **Bench:** Deepak Gupta, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/national-commission-for-protection-of-child-rights-ors-v-dr-rajesh-kumar-ors-34230
- **Pages:** 26

## Headnote

Commissions for Protection of Child Rights Act, 2005 -
Furnishing of information by the police official - There were news
reports in February, 2017 indicating that a child-care institution in
West Bengal had indulged in large scale trafficking of children -
NCPCR took cognizance of these reports on 03.03.2017 and two
members of the NCPCR went to the State and requested the State
officials to provide them some information which, according to the
NCPCR, was not provided - ADGP, CID was summoned to appear
before the NCPCR - ADGP filed writ petition challenging the
jurisdiction of the NCPCR to summon him - The High Court 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 - On appeal, held: If
any official is asked for information by any of the Commissions, he
is duty bound to reply to the letters of the Commissions - One
Commission may raise the issue that since it 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, ADGP should have
furnished the information to the NCPCR rather than challenging
the jurisdiction of the NCPCR.
Commissions for Protection of Child Rights Act, 2005 -
s.13(2) - Whether s.13(2) of the CPCR Act places the two
Commissions (the NCPCR and the State Commission) in water-tight
compartments where they oust the jurisdiction of each other - Held:
There is no question of ouster of jurisdiction of any Commission -
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The only constraint placed by s.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 - Insofar,
the inter-State or international ramifications e.g. a child is being
illegally sent for adoption abroad - Here again, 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 - Both the Commissions have to work for the best
interest of the children in a spirit of cooperation.
Partly disposing of the appeal, the Court
HELD: 1. 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 water-tight compartments where they
oust the jurisdiction of each other?
(iii) Whether in a case which has inter-State or
international ramifications the jurisdiction, if any, of
the NCPCR can be ousted? [Para 11][985-B-D]
2. As far as the aforementioned questions framed are
concerned, this Court answers the 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,
this Court is of the view that there is no question of ouster of
jurisdiction of any Commission. The only constraint placed by
Section 13(2) is that if the State Commission has already started
an inquiry, the National Commission should naturally refrain from
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inquirin

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NATIONAL COMMISSION FOR PROTECTION
OF CHILD RIGHTS & ORS.
v.
DR. RAJESH KUMAR & ORS.
(Civil Appeal No. 7968 of 2019)
JANUARY 13, 2020
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Commissions for Protection of Child Rights Act, 2005 -
Furnishing of information by the police official - There were news
reports in February, 2017 indicating that a child-care institution in
West Bengal had indulged in large scale trafficking of children -
NCPCR took cognizance of these reports on 03.03.2017 and two
members of the NCPCR went to the State and requested the State
officials to provide them some information which, according to the
NCPCR, was not provided - ADGP, CID was summoned to appear
before the NCPCR - ADGP filed writ petition challenging the
jurisdiction of the NCPCR to summon him - The High Court 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 - On appeal, held: If
any official is asked for information by any of the Commissions, he
is duty bound to reply to the letters of the Commissions - One
Commission may raise the issue that since it 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, ADGP should have
furnished the information to the NCPCR rather than challenging
the jurisdiction of the NCPCR.
Commissions for Protection of Child Rights Act, 2005 -
s.13(2) - Whether s.13(2) of the CPCR Act places the two
Commissions (the NCPCR and the State Commission) in water-tight
compartments where they oust the jurisdiction of each other - Held:
There is no question of ouster of jurisdiction of any Commission -
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The only constraint placed by s.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 - Insofar,
the inter-State or international ramifications e.g. a child is being
illegally sent for adoption abroad - Here again, 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 - Both the Commissions have to work for the best
interest of the children in a spirit of cooperation.
Partly disposing of the appeal, the Court
HELD: 1. 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 water-tight compartments where they
oust the jurisdiction of each other?
(iii) Whether in a case which has inter-State or
international ramifications the jurisdiction, if any, of
the NCPCR can be ousted? [Para 11][985-B-D]
2. As far as the aforementioned questions framed are
concerned, this Court answers the 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,
this Court is of the view that there is no question of ouster of
jurisdiction of any Commission. The only constraint placed by
Section 13(2) is that if the State Commission has already started
an inquiry, the National Commission should naturally refrain from
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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 this Court holds 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 inter-State or international
ramifications, e.g. a child is being illegally sent for adoption
abroad. Here again, this Court is 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. [Para 36][1000-D-F]
3. As clearly held, 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. This Court would like to reiterate and
re-emphasise that there are no jurisdictional issues involved.
[Para 37][1000-G-H]
4. 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 so-called '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, there is no reason why
ADGP, CID 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
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.
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Therefore, in view of this Court, ADGP, CID would have been
better advised to furnish information to the NCPCR rather than
challenging the jurisdiction of the NCPCR. [Para 33][999-C-E]
5. In view of the above, this Court is clearly of the view
that ADGP, CID 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.[Para 38]
[1001-A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7968
of 2019.
From the Judgment and Order dated 29.08.2017 of the High Court
at Calcutta in W.P. No. 22537(W) of 2017.
A.N.S. Nadkarni, ASG, Ms. Indira Jaisingh, Sr. Adv., Ms. Anindita
Pujari, Ms. Nidhi Sharma, Ms. Pallavi Chouhan, Om Narayan, Ms. Swati
Ghildiyal, Mrs. Neela Kedar Gokhale, S.S. Rebello, Ms. Suhasini Sen,
Ms. Shivikka Aggarwal, Raghav Sharma, Ms. Arzu Paul, N. Pavana,
Ms. Riya Soni, Ilam Paridi, Ms. Shruti Dixit, G.S. Makker, Manoj V.
George, Ms. Shilpa Liza George, Aakarsh Kamra, D. Rama Krishna
Reddy, Ms. Poonam Kaushik, Ms. Gagan Deep Kaur, Mrs. D. Bharathi
Reddy, Suhaan Mukerji, Ms. Astha Sharma, Ms. Kajal Dalal, Amit
Verma, Abhishek Manchanda, Prastut Dalvi, Naveen Kumar, Kunal
Chatterji, Ms. Maitrayee Banerjee, Saurav Gupta, Siddhesh Kotwal,
Ms. Bansuri Swaraj, Ms. Arshiya Ghose, Divyansh Tiwari, Shourajeet
Chakravarty, Supratik Sarkar, Siddiqua Parveen, M/S. PLR Chambers
And Co., Abhimanyu Tewari, Ms. Eliza Bar, Arun R. Pedneker, Hitesh
Kr. Sharma, Ms. Mukti Chowdhary, Ms. Diksha Rai, Ms. Palak Mahajan,
Anil Shrivastav, Rituraj Biswas, Satyendra Kumar Srivastav, Dr. Rajesh
Pandey, Ms. Tanuja Manjari Patra, Ms. Shweta Mulchandani, Manoj
Selvaraj S., Mahesh Pandey, Ms. Aswathi M.K., Vishal Prasad, V. N.
Raghupathy, Manendra Pal Gupta, Sanjay Kumar Visen, Satish Kapoor,
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Ms. Gitanjali Tripathy, Ms. Ritu Rastogi, Ms. Sangeeta Joshi, Ms. Sasmita
Tripathy, Vikas Mahajan, Vinod Sharma, Anil Kumar, Aakash Varma,
M. Shoeb Alam, Leishangthem Roshmani Kh, Ms. Anupama Ngangom,
Ms. Maibam Babina, Aribam Jankinath Sharma, Ms. K. Enatoli Sema,
Amit Kumar Singh, Mrs. Swarupama Chaturvedi, Sunny Choudhary,
Ravi Prakash Mehrotra, Ankit Agarwal, Amartya Singh, Narendra
Kumar, Raghvendra Kumar, M. Yogesh Kanna, Rajarajeshwaran S.,
Shibashish Misra, S. Debabrata Reddy, Chandan Kumar Mandal,
Ms. Garima Prashad, Jatinder Kumar Bhatia, Ashutosh Kumar Sharma,
R.R. Rajesh, Raj Bahadur Yadav, Aniruddha P. Mayee, Ms. Deepanwita
Priyanka, Vinay Arora, Ms. G. Indira, Guntur Prabhakar, Ms. Hemantika
Wahi, Gopal Prasad, Ms. Shalja Agarwal, Udit Bansal, Jayesh Gaurav,
Ranjan Mukherjee, Deniel Stone Lyngdoh, Upendra Mishra, K.V.
Kharlyndoh, Ms. Aruna Mathur, Avneesh Arputham, Ms. Anuradha
Arputham, Amit Arora, M/S. Arputham Aruna And Co, K. V.
Vijayakumar, S.. Udaya Kumar Sagar, Ms. Swati Bhardwaj, Gopal Singh,
Subhasish Mohanty, Shuvodeep Roy, Sumeer Sodhi, Piyush Dwivedi,
Ms. Jaspreet Gogia, V. G. Pragasam, R. P. Gupta, Prem Sunder Jha,
Milind Kumar, Abhinav Mukerji, Ms. Bihu S. Mukerji, Samarth Khanna,
G.N. Reddy, Mrs. T. Vijaya Bhaskar Reddy, Mrs. Sujatha Bagadhi,
Mahfooz Nazki, Polanki Gowtham, Arvind Anand, Avijit Mani Tripathi,
Ms. Rekha Bakshi, Shaurya Sahay, G. Prakash, Jishnu M.L.,
Mrs. Priyanka Prakash, Mrs. Beena Prakash, Nishant R. Katneshwarkar,
Anoop Kandari, Advs. for the appearing parties.
Intervenor-in-person,
The Judgment of the Court was delivered by
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 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').
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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 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 non-cooperation 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 in-charge 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 child-care
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
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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 functionsand 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 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;
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(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 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)
non-implementation of laws providing for protection
and development of children;
 (iii) non-compliance 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
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commissions exercise extremely important powers. They must function
only 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 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 institutionmeant
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, non-implementation of laws providing for
protection and development of children, non-compliance of policies and
guidelines framed for the purpose of ameliorating and protecting the
conditions of children etc. There can be no manner of doubt 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.
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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
water-tight compartments where they oust the jurisdiction of
each other?
(iii) Whether in a case which has inter-State or international
ramifications the jurisdiction, if any, of the NCPCR can be
ousted?
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 (WBCPCR) had actually
started the inquiry into the matter before the NCPCR started its inquiry.
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13. Section 13(1)(c) empowers the State Commissions to inquire
into the violation of child rights. In Advanced Law Lexicon1 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 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:-
"14. Powers relating to inquiries.- (1). The Commission 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;
13rd Edition, 2005, P. Ramanatha Aiyar, Pg. 2358
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(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 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)."
"15. Steps after inquiry.-The Commission may take any of 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
thegrant 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 initiation of proceedings including prosecution or such other action as
the Commission may deem fit. This is a recommendatory power but
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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 24.07.2017that the State Commission has
taken 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 on12.07.2016 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, 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
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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 isthat 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 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 suo motu cognizance of the incident on 30.01.2017 on the basis of
the newspapersreport 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 30.01.2017and 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 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.
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18. Even if we accept the record of the WBCPCR to be the
gospel truth then also other than using the word 'takes suo-moto
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 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 non-constitution of Child Welfare
Committee (CWC) in New Jalpaiguri District from 23.08.201328.08.2015. 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 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):-
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"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 Non-Resident 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 Non-resident 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 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
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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 matterand inform the NCPCR about
the report of the Government. According to the NCPCR, no response
was received from any of 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.
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.