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2012 DIGILAW 333 (ALL)

SACHIN v. STATE OF U. P.

2012-02-07

AMAR SARAN, RAMESH SINHA

body2012
JUDGMENT By the Court.—When this case was heard on 2.2.2012, we had directed the learned counsel for the petitioner to give notice to the learned counsel for respondents Sri V.P. Gupta that this case would be taken up today. He has given the notice on 6.2.2012 but Sri Gupta has refused to take the notice. He has filed the notice which is taken on record. 2. Heard learned counsel for the petitioner and the learned A.G.A. In this case, an unclaimed child was picked up by G.R.P, Amroha on 11.10.2008. As no one came forward to claim the custody of the 2 and a half years old child, the G.R.P Chauki Incharge published an advertisement in the news paper that the child may be taken by anyone, who could show that he was the child’s natural guardian. When no natural guardian of the child appeared, then the petitioner approached the G.R.P Railway Station Amroha that he has no male issue and he has sufficient property to look after the child and the child may be given in his custody. On the petitioner’s application, the child was handed over to him on 20.10.2008. It appears that in the meantime, one Laxman and his wife Saroj who had filed an FIR on 4.9. 2007 regarding disappearance and kidnapping of their child under Section 364 I.P.C came forward before the police and claimed that the said child was actually theirs. On 13.7.2010, the S.H.O of P.S. Majhola, district Moradabad reached the house of the petitioner and took away the child from him and handed him over to respondent No. 8 Laxman. As the police had taken away the child from the petitioner without approaching the Child Welfare Committee or following any legal formalities, the petitioner has filed the present Habeas Corpus petition before this Court. 3. On 15.12.2010, an earlier Division Bench of this Court passed an order for getting a D.N.A test of the child and Laxman and Smt. Saroj done to decide whether the child was actually their progeny. The D.N.A report has been received which mentions that Smt. Saroj and Laxman are not the biological parents of the child Sachin. 4. Learned counsel for the petitioner submits that the petitioner has been following the due process of law and acting in an honest manner for trying to obtain custody of the child, but the respondent Nos. The D.N.A report has been received which mentions that Smt. Saroj and Laxman are not the biological parents of the child Sachin. 4. Learned counsel for the petitioner submits that the petitioner has been following the due process of law and acting in an honest manner for trying to obtain custody of the child, but the respondent Nos. 7 and 8, appear to have prevailed over the police of P.S. Majhola who came to the house of the petitioner and forcibly took away the child on 13.7.2010 and to have handed him over to respondent Nos. 7 and 8, who falsely claimed to be the biological parents of the child. 5. It was pointed out by the learned counsel for the petitioner that this action of the police officer concerned was completely illegal as under rule 33(3)(e) and (f) of the Juvenile Justice (Care and Protection of Children) Rules 2007 (hereinafter referred to as the Rules) when the police receives any information of an abandoned infant, the police after providing immediate medical assistance to the child should first place the child in a specialized adoption agency or recognized and certified children’s home or in a pediatric unit of a Government hospital and then produce him within 24 hours before the Child Welfare Committee. These were the steps that the G.R.P Amroha and the S.O. P.S. Majhola should have taken when the child was recovered on 11.10.2008 and also subsequently when it seized the child from the petitioner on 13.7.2010 and handed it over to the respondents 7 and 8. Thereafter this is the function of the Child Welfare Committee (CWC) to conduct an enquiry as provided under rule 33 (3) (g) of the Rules and also to declare the child as legally free for adoption. Under Rule 33 (3) (1) (g) and 34 of the Rules, the Child welfare Committee is also competent to decide whether the child should be kept in a Children’s Home or specialized adoption agency or in a pediatric unit of a Government hospital or whether the child should be sent for foster care till the decision is taken by the Court for giving the child in adoption under Rule 41. 6. We, therefore, direct the S.S.P. Moradabad to take the child Sachin from the custody of respondent Nos. 6. We, therefore, direct the S.S.P. Moradabad to take the child Sachin from the custody of respondent Nos. 7 and 8 and to produce him before the Child Welfare Committee within a week from the date the petitioner files a certified copy of this order alongwith the petition before him. The C.W.C shall take a decision as to whether the child should be kept in the children’s home or any other suitable place as mentioned under rule 33(3) (f) of the Rules or he should be given for foster care to the petitioner or other suitable person in accordance with the provisions of Juvenile Justice (Care and Protection of Children) Rules 2007. We may mention that the matter needs to be handled sensitively as the child must be in some trauma inasmuch as he has changed 3 sets of parents, first when he must have lived at his home with his natural parents and thereafter he remained with the petitioner for two years till the police illegally seized him and handed him over to respondent Nos. 7 and 8 where after he is with them. We hope that this matter will be decided by the C.W.C with utmost expedition. 7. Learned A.G.A rightly points out that both the police authorities of G.R.P. Amroha and P.S. Majhola have shown gross negligence in the matter by not producing the child before the C.W.C and first handing him over to the petitioner and then shifting him to respondents 7 and 8. With the above observations, the writ petition is allowed. Copy of this order may be given to learned A.G.A within three days. ——————